Emerson and Foster and Anor
[2019] FCCA 2774
•1 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EMERSON & FOSTER & ANOR | [2019] FCCA 2774 |
| Catchwords: CHILD SUPPORT – Application seeking judicial review of child support decision of the Administrative Appeals Tribunal – question of law – departure order based on financial resources available to the Appellant – legal error found – appeal upheld. |
| Legislation: Child Support (Assessment) Act 1989 (Cth), ss.98C(1)(b), 117(2), 117(4) 117(6), 117(7) Administrative Appeals Tribunal Act 1975 (Cth), s.44AAA |
| Cases cited: Collector of Customs v Pressure Tanker Pty Ltd and Pazzolanic Enterprises Pty Ltd (1993) 43 FCR 280 |
| Applicant: | MR EMERSON |
| First Respondent: | MS FOSTER |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | MLG 2878 of 2018 |
| Judgment of: | Judge Bender |
| Hearing date: | 20 June 2019 |
| Date of Last Submission: | 20 June 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 1 October 2019 |
REPRESENTATION
| Counsel for the Applicant: | Self-represented |
| Solicitors for the Applicant: | Not applicable |
| Counsel for the First Respondent: | No appearance |
| Solicitors for the First Respondent: | Not applicable |
| Counsel for the Second Respondent: | Ms Nicholson |
| Solicitors for the Second Respondent: | Sparke Helmore |
ORDERS
The Notice of Appeal filed by the Appellant on 25 September 2018 and the Amended Notice of Appeal filed on 18 December 2018 be allowed.
The decision of the Administrative Appeals Tribunal (Social Services and Child Support Division) made 20 August 2018 and released 24 August 2018 be set aside and the matter be remitted to the Administrative Appeals Tribunal (Social Services and Child Support Division) for rehearing.
IT IS NOTED that publication of this judgment under the pseudonym Emerson & Foster & Anor is approved pursuant to s.110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2878 of 2018
| MR EMERSON |
Applicant
And
| MR FOSTER |
First Respondent
| CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an appeal from a decision of the Administrative Appeals Tribunal (Social Services and Child Support Division) (“the Tribunal”) made 20 August 2018 and released 24 August 2018. The Tribunal set aside the decision under review and substituted a decision that:
·From 4 November 2016 to 31 December 2019 Mr Emerson’s adjusted taxable income is varied to $51,844.00;
·From 1 January 2017 the annual rate payable by Mr Emerson is increased by $3,088.00;
·From 1 January 2018 the annual rate payable by Mr Emerson is increased by $3,182.00;
·From 1 January 2019 until 31 December 2019 the annual rate payable by Mr Emerson is increased by $3,365.00.
The Appellant filed a Notice of Appeal on 25 September 2018.
With the leave of the Court the Appellant filed an Amended Notice of Appeal on 18 December 2018.
In the Amended Notice of Appeal the Appellant seeks the following orders:
“1. The orders made 20 August 2018 by Member P Noonan of the Administrative Appeals Tribunal be set aside.
2. The matter be remitted to the Administrative Appeals Tribunal for rehearing.
3. The respondent pay the applicant’s costs of and incidental to this Notice of Appeal.”
The Appellant’s amended grounds of appeal are (using his numbering):
“3. The learned tribunal member’s discretion miscarried in making findings unsupported by evidence and/or making material errors of fact.
4. The learned tribunal member failed to consider, or failed to adequately consider, or gave inadequate weight to, the mother’s financial resources.
5. The learned tribunal member failed to consider, or failed to adequately consider, or gave inadequate weight to the father’s income, property and financial resources.
6. The learned tribunal member failed to consider, or failed to adequately consider, or gave inadequate weight to the commitments of each parent to support themselves and/or the child.
7. In adopting the findings of the Child Support Registrar in relation to the father’s income and financial resources, the learned tribunal member failed to exercise her discretion as required by the Act.
8. The learned tribunal member provided inadequate reasons.”
In response to the Appellant’s Notice of Appeal the First Respondent filed a Response – General Federal Law seeking that the application be dismissed by the Court. The First Respondent filed no further material in relation to the appeal and did not appear at the hearing.
Background
The parties were in a relationship from 2004 until 2012. They are the parents of Y born …2006 (“Y”) and X born …2009 (“X”). Y and X live with the First Respondent and spend time with the Appellant Friday evenings and Sunday.
On 14 November 2016 the First Respondent applied for a Departure from the assessment, which at that time was set for the period 6 October 2016 to 30 April 2017, that the Appellant pay child support in the sum of $414.00 per annum based on the Appellant’s 2014/2015 adjusted taxable income (“ATI”) of $13,444.00 and the First Respondent’s 2014/2015 provisional income of $13,437.00.
On 1 February 2017 a Department officer found a ground for departure was established and departed from the administrative assessment on the basis that the Appellant’s ATI be set at $80,000 per annum effective from 4 November 2016 to 31 December 2018.
On 6 March 2017 the Appellant objected to this decision and on 4 April 2017 his objection was disallowed.
On 13 October 2017 the Appellant applied to the Tribunal for an independent review. The Tribunal subsequently granted an extension of time for him to appeal.
The appeal was heard on 2 August 2018 with both the Appellant and the First Respondent attending the hearing by telephone conference. Both gave evidence to the Tribunal on affirmation. The Second Respondent did not attend the hearing.
The Tribunal decision
The Tribunal made its decision on 20 August 2018 and posted copies to the parties on 24 August 2018.
The Tribunal correctly identified that pursuant to section 98C(1)(b) of the Child Support (Assessment) Act 1989 (Cth) (“the Act”) a decision to depart from the administrative assessment may be made if:
“(i) that one, or more than one, of the grounds for departure referred to in subsection (2) exists; and
(ii) that it would be:
(A) just and equitable as regards the child, the liable parent, and the carer entitled to child support; and
(B) otherwise proper;…”
Section 117(2) of the Act provides:
“Grounds for departure order
(2) For the purposes of subparagraph (1)(b)(i), the grounds for departure are as follows:
(a) that, in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of:
(i) the duty of the parent to maintain any other child or another person; or
(ii) special needs of any other child or another person that the parent has a duty to maintain; or
(iii) commitments of the parent necessary to enable the parent to support:
(A) himself or herself; or
(B) any other child or another person that the parent has a duty to maintain; or
(iv) high costs involved in enabling a parent to spend time with, or communicate with, any other child or another person that the parent has a duty to maintain;
(aa) that, in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of the responsibility of the parent to maintain a resident child of the parent (see subsection (10));
(b) that, in the special circumstances of the case, the costs of maintaining the child are significantly affected:
(i) because of high costs involved in enabling a parent to spend time with, or communicate with, the child; or
(ia) because of special needs of the child; or
(ib) because of high child care costs in relation to the child; or
(ii) because the child is being cared for, educated or trained in the manner that was expected by his or her parents;
(c) that, in the special circumstances of the case, application in relation to the child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child:
(i) because of the income, earning capacity, property and financial resources of the child; or
(ia) because of the income, property and financial resources of either parent; or
(ib) because of the earning capacity of either parent; or
(ii) because of any payments, and any transfer or settlement of property, made or to be made (whether under this Act, the Family Law Act 1975 or otherwise) by the liable parent to the child, to the carer entitled to child support or to any other person for the benefit of the child.”
In what is a fairly brief decision, the Tribunal, whilst not spelling it out, clearly considered section 117(2)(c)(ia), being the income, property and financial resources of either parent and section 117(2)(b)(ii), that the child is being cared for, educated or trained in a manner that is expected by his or her parents as the grounds for a departure order.
In relation to the Appellant’s income and access to financial resources the Tribunal sets out its findings in paragraphs [10]-[15] as follows:
“10. Mr Emerson is in receipt of newstart allowance. He also works for his brother's company and receives a small wage of around $265 per week. Mr Emerson also receives financial support from his brother in the form of accommodation (established by the Department as being worth $390 per week in rent), food, vehicle access and a phone. The Tribunal noted that Mr Emerson's bank statements reflect spending of a primarily discretionary nature such as coffee and entertainment purchases.
11. Mr Emerson agreed that he had previously worked in a full-time role for his brother's company which is in the construction business. He did have a site management role. However he suffered a hand injury in 2012 which has left him largely incapacitated in that hand. He also suffers from tennis elbow and last year suffered a knee injury playing sports which further hampered his ability to work. As a result of these injuries he submitted that he has only been able to work around 15 hours a week and mostly he just goes into work to see people. He used to have a work vehicle to use but no longer does so.
12. In respect to his injuries Mr Emerson's medical information was sufficient such that the Tribunal was satisfied he had suffered lacerations to his hand in 2012 requiring surgical treatment in 2012 and 2013 and associated ongoing functionality loss. He is in receipt of newstart allowance and is placed with a disability employment service provider.
13. While the Tribunal accepted as reasonable that Mr Emerson's injury hinders his ability to undertake physical work it is uncontested that since the injury he has also undertaken management roles in his brother's company. In October 2016 he made out a sworn affidavit that he is in charge of the company while his brother is overseas. Mr Emerson submitted this was only for a few weeks and a business card submitted by Ms A showing him to be a manager was in relation to a past period prior to his hand injury. However the Tribunal considered this clear evidence that Mr Emerson has a significant role within his brother's company, despite that role not being reflected in his declared remuneration.
14. Overall the Tribunal considered Mr Emerson has access to financial resources such that his necessary costs for self-support are met and he has the ability to spend money on discretionary items. The Tribunal considered the source of this support is primarily from Mr Emerson's brother with whom he has a long-term working relationship. The Tribunal considered that in such opaque circumstances it is appropriate to conclude that the financial support received by Mr Emerson from his brother is effectively in return for services rendered.
15, In 2016-17 Mr Emerson received $265 per week in wages, totalling $7,685 and Centrelink benefits of $17,639. In addition to this the Tribunal considered the financial support provided to Mr Emerson for services rendered to be appropriately reflected by the value of his subsidised accommodation being $390 per week or $20,280 and $120 per week or $6,240 per annum in respect to his vehicle and phone expenses. The total amount of these benefits is $51,844. The Tribunal did not consider rounding up of this figure is appropriate in consideration of Mr Emerson's medical condition and also in acknowledgement that, while his spending is largely discretionary in nature, it is also relatively modest in its totality.”
In relation to the First Respondent’s income and access to financial resources the Tribunal noted that she is a full-time student and is entirely reliant upon family tax benefits and child support. The Tribunal considered there was no evidence that indicated the First Respondent’s overall access to financial resources was not appropriately reflected by the provisional income maintained under the administrative assessment of child support payable.
Under the hearing “Conclusion” the Tribunal stated the following at paragraph [17]:
“17. Under the administrative assessment of child support the annual rate of child support payable by Mr Emerson, at the time of Ms A's departure application was $414. The Tribunal has found that Mr Emerson's overall access to financial resources is currently reflective of an amount of $51,844 per annum. The annual amount of child support payable by Mr Emerson, using this figure, and Ms Foster’s 2014-15 provisional income of $13,437, is approximately $6,742 per annum. The Tribunal considered such a difference in the child support payable meant that application of the administrative assessment would result in an unjust and inequitable determination of the level of financial support to be provided by Mr Emerson in support of the children. As a result, the Tribunal determined that a ground for departure in subparagraph 117(2)(c)(ia) of the Act does exist.”
When considering the question of Y and X’s educational costs pursuant to section 117(2)(b)(ii) and section 117(6) of the Act, which reads:
“Proper needs of the child
(6) In having regard to the proper needs of the child, the court must have regard to:
(a) the manner in which the child is being, and in which the parents expected the child to be, cared for, educated or trained…”,
the Tribunal held at paragraph [25] as follows:
“25. The children are also attending a private school. Mr Emerson informed the Tribunal that he paid the school fees in their entirety, with the assistance of his brother up until the end of 2016. Ms A noted that she now receives the school fee invoice in its entirety. There was no dispute that the children are being educated in the manner intended by the parents. In 2017 school fees were $6,176. As each parent supports this education the Tribunal considered it reasonable that Mr Emerson contribute to 50% of this relatively modest fee. In 2018 the fee is $6,364. In 2019 the fee will be around $6,730.”
Having determined that one or more grounds for departure set out in section 117(2) of the Act existed, the Tribunal considered whether it would be just and equitable for a departure order to be made. The Tribunal determined the analysis of the Appellant’s overall access to financial resources to be appropriate in determining his capacity to pay child support during the period under consideration. The Tribunal found the First Respondent’s household expenditure was reflected in her income and that whilst she has no accommodation costs it was clear that any child support payable to her would assist her in maintaining the children.
Finally the Tribunal considered whether it would be otherwise proper to make a departure order. The Tribunal concluded at paragraph [26] that as the First Respondent receives family tax benefit in respect of the children, an increase in child support would reduce the cost to the community and that changing the amount of child support payable would not have an adverse effect upon the community and therefore such a result would be otherwise proper.
Further, under the heading “Conclusion” the Tribunal noted that it considered the Appellant to have access to financial resources such that it is reasonable to expect him to provide some child support.
The Tribunal noted that the Appellant submitted he could not afford to pay the level of child support set by the Department as it exceeds his income. They also noted that the First Respondent submitted she requires child support to assist her in paying school fees and meeting the costs of the children and that at the moment she is heavily dependent upon her family’s support to meet those costs. The Tribunal noted the First Respondent to submit the Appellant has a significant capacity for discretionary spending which she does not, and therefore he should contribute to child support.
At paragraph [30] the Tribunal stated that “In respect of appropriate dates for a departure determination neither parent had a firm submission in this regard although [the First Respondent] … expressed a wish for certainty.”
At paragraph [31] of its decision the Tribunal states as follows:
“31. With regard to all of the reasoning, as set out above, the Tribunal decided to vary the adjusted taxable income of Mr Emerson to $51,844 from 4 November 2016 to 31 December 2019. Further that the annual rate payable by Mr Emerson is increased by $3,088 from 1 January 2017, by $3,182 from 1 January 2018 and by $3,365 from 1 January 2019 to 31 December 2019. The departure date is in line with that set by the Department and which the Tribunal agreed with. The length of the departure is extended to provide the parents with some certainty in planning their respective financial affairs.”
At paragraph [32] the Tribunal stated that it considered the amount of child support payable by the Appellant to be around $9,890 per annum or $190 per week and that they did not consider the Appellant would be placed in financial hardship by this decision as the amount is manageable within the context of the Tribunal’s analysis of his overall access to financial resources.
The Tribunal noted that this was a drop in the amount of child support payable when compared to the decision under review, but that the First Respondent would not be placed in financial hardship by the decision as she would be paid child support that was commensurate with the Tribunal’s analysis of the parents’ current access to financial resources and enable them to budget for the next period with some degree of certainty.
The Law
Pursuant to the provisions of section 44AAA of the Administrative Appeals Tribunal Act 1975 (Cth) a party to the proceedings before the Tribunal may appeal to this Court in respect of a decision made by the Tribunal in a child support matter. However, the only ground on which such an appeal can be based is on “a question of law”.
In the matter of Bond v Child Support Registrar & Anor [2018] FCCA 422 Judge Brown quite properly noted that “an appeal to this Court from an administrative tribunal in a child support matter does not constitute a re-hearing of the case on its merits.”
In paragraph [84] of Bond v Child Support Registrar & Anor (supra) his Honour makes reference to what was said by the Full Court in Collector of Customs v Pressure Tanker Pty Ltd and Pazzolanic Enterprises Pty Ltd (1993) 43 FCR 280, as follows:
“…the distinction between the task of the Administrative Appeals Tribunal – a fact finding decision making tribunal – and a court, such as this one – judicial review on a question of law – was made as follows:
“…the nature of the task of this court is clear. It is to leave to the tribunal of fact decisions as to the facts and to interfere only when the identified error is one of law.””
His Honour then reiterated his findings in Henriques & Hatzis (SSAT Appeal) [2014] FCCA 1194 as to what amounted to an error of law, indicating that:
“an administrative tribunal exceeds its powers and thus commits a jurisdictional error, which is correctable on appeal in respect of a question of law if it:
· fails to construe properly the legislative provisions applicable;
· identifies the wrong issues or asks itself the wrong questions;
· ignores relevant material or relies on irrelevant material;
· fails to accord procedural fairness to the party before it or otherwise breaches principles of natural justice;
· makes an erroneous finding of such a magnitude that it goes to the very jurisdiction which it purports to exercise rendering its decision perverse or unreasonable or otherwise offending logic.”
In paragraphs [86]-[88] of his judgment, his Honour states as follows:
“86. The classical definition of jurisdictional error was provided by the High Court in Minister for Immigration & Multicultural Affairs v Yusuf. It described an error, which leads to the vitiation of the jurisdiction of an administrative body, in the following terms:
“What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”
87. Accordingly, it is the function of this court to determine whether the decision of the AAT was within its legal powers. That is what is meant by a question of law. It is not the function of this court to examine the merits of that decision if the decision was made within the parameters of jurisdiction. Essentially, it is not the function of this court to reappraise the evidence led before the AAT and re-determine the case, according to the conclusions it draws from the evidence available to the Tribunal.
88. As such, I should be cautious to approach the decision of the AAT with “an eye [which is] too keenly attuned to perception of error [or to read it] over-finely”. Rather I should take a common sense approach to what the ATT (sic) was saying in its decision and the reasons provided by it as to why it said what it said. The function of the AAT is not to produce reasons of “jurisprudential excellence”. It is to provide an informal and expedient level of independent review.
As was set out in the Second Respondent’s written submissions and by his Honour in paragraph [89] of his judgment in Bond v Child Support Registrar & Anor (supra), the Full Court of the Family Court in the matter of Child Support Registrar & Crabbe and Anor [2014] FamCAFC 10 at 54 provided a summary of the principles (and applicable authorities) which are relevant to the review of administrative decisions in the child support area and in particular, what matters can constitute an error of law and those which do not necessarily do so. His Honour (and the Second Respondent in paragraph [5] of their written submissions) sets those principles out as follows:
“The question of whether there is evidence to support a finding of fact or an inference drawn from a finding of fact is a question of law;[1]
The making of a finding of fact or the drawing of an inference in the absence of evidence is an error of law;[2]
However, a wrong finding of fact is not necessarily an error of law if it was based on evidence available to the decision maker;[3]
As a consequence, a finding of fact based on a faulty process of reasoning is not an error of law;[4]
Judicial review is not to be over zealous in seeking to find inadequacy or reasoning and so inadvertently turn the review of the reasons of an administrative decision maker into a reconsideration of the merits of the relevant decision;[5]
An administrative tribunal is required to do no more than set out the findings which it did make on facts which it considered material to the decision made;[6]”
[1] Minister for Immigration & Multicultural Affairs v Al Miahi [2001] 65 ALD 141 at [34].
[2] Al Miahi (supra).
[3] Al Miahi (supra).
[4] Al Miahi (supra).
[5] Minister for Immigration & Ethnic Affairs v Wu Shan Ling [1996] 185 CLR 259 at [271].
[6] Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323.
An appellant asserting a tribunal has made an error of law must state with sufficient precision that which identifies the alleged error in law, as a mere assertion will not enliven the Court’s jurisdiction (Haritos v Federal Commissioner of Taxation [2015] FCAFC 92 at [62]).
The grounds of appeal
The Appellant set out four questions of law and listed six grounds of appeal in the Amended Notice of Appeal filed with the leave of the Court on 25 September 2018.
The questions and grounds of appeal are interlinked and actually disclose four grounds of appeal.
The Amended Notice of Appeal crossed out questions (1) and (2) and grounds of appeal (1) and (2) but did not renumber the new questions and the new grounds of appeal. Accordingly the grounds of appeal and questions start from (3). For the matter of convenience I will use the same numbers as used by the Appellant in his Amended Notice of Appeal, which means starting with question (3) and ground of appeal (3).
Question of law (3): Did the learned tribunal member make findings that where (sic) unsupported by evidence and/or material errors?
Ground of appeal (3): The learned tribunal member’s discretion miscarried in making findings unsupported by evidence and/or making material errors of fact.
In the Appellant’s affidavit sworn 25 September 2018 and in his written submissions filed 15 April 2019 the Appellant contends that the Tribunal made its decision on pure speculation and in most areas, with no evidence, and therefore it did not consider, reflect or take into account his current or previous situation.
The Appellant argues:
·his only source of income is a Newstart allowance benefit from Centrelink of $563.30 per fortnight, which is evidenced by his bank statements that were made available to the Tribunal;
·
the Tribunal found he worked 15 hours per week, which does not reflect his current situation, as his casual employment was terminated on 15 January 2018. This is evidenced by correspondence from his employer B Pty Ltd dated
8 January 2018 which was before the Tribunal;
·his mental and physical health has declined and he is no longer able to work;
·the Tribunal’s finding that he was employed in a managerial position was completely false and based on outdated materials, being a business card that dated back to a period when the parties were still married and an affidavit sworn in parenting proceedings in 2016 which related to a four-week period only when he looked after the business while his brother was overseas;
·the Tribunal’s finding that he received money from his brother was false and their finding that the support received by him from his brother was in return for services rendered has no factual basis;
·the Tribunal’s finding the First Respondent was a full-time student entirely reliant on benefits was wrong. There was no consideration by the Tribunal that she receives an income nor of her now husband’s income or the assistance that she receives from her family for accommodation, food and the children’s school fees.
It is submitted on behalf of the Second Respondent that in order to make out a no-evidence ground the Appellant must show there is no evidence at all upon which the findings of the Tribunal could have been based.
It is submitted on behalf of the Second Respondent that in this matter there was a range of evidence available to the Tribunal, which it considered in reaching its conclusions. That evidence included the Appellant’s salary and Centrelink benefits received in the 2016/2017 financial year, the financial support provided by his brother and the Appellant’s discretionary spending.
The Second Respondent submits that whilst the Tribunal accepted the Appellant’s injuries to his hand affected his capacity to undertake physical work, the Tribunal relied on the sworn affidavit filed by the Appellant in the family law proceedings that he was undertaking a managerial role in his brother’s company whilst his brother was travelling, together with the letter dated 16 July 2018 provided to the Tribunal by the Appellant’s brother in which he confirmed he was supporting the Appellant in concluding the assistance received by the Appellant from his brother was for services rendered.
In oral submissions, Counsel for the Second Respondent argued that in the transcript of the Appellant’s evidence before the Tribunal, the Appellant confirmed that his brother provides his accommodation, that his brother’s family purchase the majority of his food and that he still has the use of a phone that was provided to him by his brother many years go.
It was further submitted on behalf of the Second Respondent that whilst the Tribunal’s conclusion that the Appellant worked 15 hours per week does not reflect his current situation given the termination letter from his employer that was before the Tribunal which stated his last day of work was 15 January 2018, it was apparent that the Appellant was working for the duration of the administrative assessment which was under review, being 6 October 2016 to 30 April 2017.
It was submitted on behalf of the Second Respondent that the weight to be afforded particular evidence is a factual matter for the Tribunal and lies at the heart of a merits review and is not a question of law.
It was further submitted that what constitutes financial resources and thus what financial resources were available to the Appellant was a question of fact for the Tribunal to determine and the Appellant has not pointed to any other evidence which was before the Tribunal which it had overlooked or failed to consider.
The Second Respondent therefore submitted that there had been no error of law disclosed by this question of law or ground of appeal and that all it reveals is an emphatic disagreement with the Tribunal’s factual findings.
There is no doubt that there was evidence before the Tribunal upon which it could make findings that the Appellant’s brother and family provide the Appellant with his accommodation, they pay for the majority of his food and living expenses and provide him with a phone. There is also no doubt the Appellant was employed on a part-time basis in his brother’s company from 27 September 2016 until 18 January 2018 and was paid on average $265 per week. In addition he received social security payments.
There was also clear evidence before the Tribunal that this employment was terminated on 15 January 2018 and thereafter the Appellant’s only cash income from that date has been a Newstart allowance.
As has been set out in this judgment in paragraph [34] the principles when determining whether there is a question of law or a question of fact are as set out in Child Support Registrar & Crabbe and Anor (supra) which provide as follows:
“The question of whether there is evidence to support a finding of fact or an inference drawn from a finding of fact is a question of law.
The making of a finding of fact or the drawing of an inference in the absence of evidence is an error of law.”
However, a wrong finding of fact is not an error of law if it is based on evidence available to the decision maker.
The evidence before the Tribunal relating to the provision of assistance by the Appellant’s brother was that of the Appellant and a letter sent by the Appellant’s brother to the Tribunal dated 16 July 2018 which reads as follows:
“To whom it may concern:
This is to confirm that Mr Emerson is staying with me and I look after him for any of his financial needs, being elder brother. Since his divorce and he hurt his hand, he has been lonely and doesn’t feel the same (good) and my mother had instructed me to look after him completely. As a family came from Country C it is our obligation to look after each other, that is the culture. I have been looking after him since he arrived in Australia till today, even when he was married. Before divorce I arranged him and his family for overseas trip.
I do not have documentation or paperwork to proof my support to him. I hope this suffices your requirement.
Please contact me if you have any queries.”
In paragraph [13] of its decision the Tribunal acknowledged that the Appellant’s hand injury hinders his ability to undertake physical work. The Tribunal then states that “it is uncontested that since the injury he has also undertaken management roles in his brother’s company.”
The Tribunal referred to an affidavit sworn by the Appellant in family law proceedings before this Court. In support of his application to travel overseas with Y and X the Appellant deposed:
“I do have family in Country C (sic), however I consider Australia to be my home. My children have lived in Australia for the majority of their lives. They are used to the Australian life. I am currently employed in my brother’s company and am in charge of over 40 workers. I am in charge of the company whilst my brother is overseas. The company has a handful of contracts and subcontracts with both state and private companies. The major contracts are with Company D and Company E. These contracts are long term contracts and I do not see them finishing in the near future. Hence I am required to return to Australia.”
The Tribunal also made reference to a business card submitted by the First Respondent showing the Appellant to be a manager in his brother’s company.
Whilst acknowledging the Appellant’s evidence that he was only in charge of the company for a short period of time in October 2016 whilst his brother was overseas and that the business card related to a period of time prior to his hand injury, the Tribunal at paragraph [13] stated:
“…However the Tribunal considered this clear evidence that Mr Emerson has a significant role within his brother's company, despite that role not being reflected in his declared remuneration.”
Whilst it was open to another decision maker not to have found, as this Tribunal did, that an old business card and an affidavit sworn to bolster a family law application is “clear evidence” of having an ongoing “significant role” in his brother’s company, the Tribunal had before it evidence that made this finding open to it and as such there is no error of law.
When responding to a submission from the Appellant that the Tribunal had been inconsistent in the manner in which it had treated the support he receives from his family and the manner in which it treated the support provided to the First Respondent by her family and current husband – being free accommodation, all of her food costs, the school fees being paid, her family running the organisation in which she works as a volunteer – Counsel for the Second Respondent referred the Court specifically to paragraphs [14]-[15] in which the Tribunal found as follows:
“14. Overall the Tribunal considered Mr Emerson has access to financial resources such that his necessary costs for self-support are met and he has the ability to spend money on discretionary items. The Tribunal considered the source of this support is primarily from Mr Emerson's brother with whom he has a long-term working relationship. The Tribunal considered that in such opaque circumstances it is appropriate to conclude that the financial support received by Mr Emerson from his brother is effectively in return for services rendered.
15. In 2016-17 Mr Emerson received $265 per week in wages, totalling $7,685 and Centrelink benefits of $17,639. In addition to this the Tribunal considered the financial support provided to Mr Emerson for services rendered to be appropriately reflected by the value of his subsidised accommodation being $390 per week or $20,280 and $120 per week or $6,240 per annum in respect to his vehicle and phone expenses. The total amount of these benefits is $51,844.” (my emphasis)
Counsel for the Second Respondent argued that the finding of the Tribunal that the assistance received by the Appellant from his brother is referrable to work undertaken clearly distinguishes the assistance received by the First Respondent from her family.
The question that arises from this finding by the Tribunal is what evidence did it rely upon to conclude that the financial support received by the Appellant from his brother was “effectively in return for services rendered.”
In paragraph [14] of its decision, the Tribunal states it is appropriate to conclude the financial support the Appellant receives from his brother is effectively in return for services rendered “in such opaque circumstances”
The use of the term “opaque circumstances” to summarise the evidence upon which the Tribunal makes its finding that the financial support received by the Appellant from his brother is effectively in return for services rendered is, to put it politely, not helpful and leaves it open to a Court of review to make a finding that “opaque circumstances” is a euphemism for an absence of evidence. However, judicial review should not be over zealous when considering the reasons of the administrative decision maker.
A reading of the decision as a whole and particularly paragraphs [10], [13] and [14] indicate the Tribunal was satisfied that it had before it evidence that the Appellant has worked in management roles in his brother’s business, his spending is primarily of a discretionary nature and that he has a long-term working relationship as well as a familial relationship with his brother, a director/owner of the business in which the Appellant had a long working history. The Tribunal therefore had evidence before it upon which it was open for it to find the financial support the Appellant received from his brother was, at least in part, in return for services rendered by the Appellant to his brother’s business.
Accordingly, this ground of the appeal has not been made out.
Question of law (4): Did the learned tribunal member fail to adequate (sic) consider the factors as prescribed by the Act in relation to whether the orders made were just and equitable?
Ground of appeal (4): The learned tribunal member failed to consider, or failed to adequately consider, or gave inadequate weight to, the mother’s financial resources.
Ground of appeal (5): The learned tribunal member failed to consider, or failed to adequately consider, or gave inadequate weight to the father’s income, property and financial resources.
Ground of appeal (6): The learned tribunal member failed to consider, or failed to adequately consider, or gave inadequate weight to the commitments of each parent to support themselves and/or the child.
In the Appellant’s written submissions filed 15 April 2019 the Appellant contends that the Tribunal was hindered in achieving a just and fair decision on the basis of a number of documents that were provided to the Tribunal by the First Respondent which included the following:
a)that the Appellant had taken multiple trips to Country F when he had not left Melbourne since 2013;
b)that they considered gifts bought for Y and X by family and friends as indicative of the Appellant’s discretionary spending;
c)that he had taken luxury business trips interstate and overseas which he never had;
d)that he had stashes of money in his home; and
e)that he runs and owns his brother’s business.
It is submitted on behalf of the Second Respondent that there was nothing in the decision from the Tribunal that showed that it had given any weight to the various documents, emails and the like to which the Appellant takes issue in reaching its determination.
It is submitted on behalf of the Second Respondent that having specifically considered the Appellant’s income and access to financial resources and having found that a ground for departure existed under section 117(2)(c)(ia) of the Act the Tribunal correctly considered whether it would be just and equitable to depart from the Administrative Assessment and having regard to the mandatory requirements set out in section 117(4) of the Act concluded as it did that there should be a departure order made.
It is submitted on behalf of the Second Respondent that the weight to be afforded to the evidence was a matter for the Tribunal and lies at the heart of a merits review.
In circumstances where there is no evidence that the Tribunal relied upon the material to which the Appellant takes issue, this ground of appeal is not made out.
Question of law (5): Did the learned tribunal member err in adopting the findings of the Child Support Registrar without undertaking an independent analysis of the father’s income and financial resources.
Ground of appeal (7): In adopting the findings of the Child Support Registrar in relation to the father’s income and financial resources, the learned tribunal member failed to exercise her discretion as required by the Act.
In the Appellant’s written submissions filed 15 April 2019 the Appellant submits that contrary to the evidence that was provided through his bank statements, medical certificates, tax returns, correspondence from Employer B Pty Ltd and from his brother and the finding by the Tribunal that he was unable to perform his pre-injury duties because of that injury which was verified by medical material before the Tribunal, the Tribunal should not have found that the assistance received by him from his brother was a financial resource.
The Appellant further submitted that the Tribunal accepted the monetary value placed on that support by the Departure Officer, being $390 per week for accommodation and $120 per week for vehicle and phone expenses without questioning or making their own independent enquiry as to how those figures were determined.
It is submitted on behalf of the Second Respondent that it is unclear how the Tribunal could be said to have adopted the findings of the Registrar in circumstances where it came to an entirely different conclusion as to the Applicant’s income or access to financial resources.
The Second Respondent points out that the Registrar set the Appellant’s ATI at $80,000 per annum whereas the Tribunal determined the Appellant’s income for the three years for which it issued its departure order at different and reduced amounts.
Whilst the submissions for the Second Respondent in this regard are correct, the matter does not end there.
The Tribunal offers absolutely no explanation about how the figure of $390 per week for rent and the figure of $100 per week in respect to his vehicle and phone expenses was calculated other than to say it was “established by the Registrar”.
Further, when determining the ATI for the Appellant, the Tribunal included in the Appellant’s income the amount of $7,685 by way of wages for periods that post-date the Appellant’s employment being terminated. There was very clear evidence before the Tribunal that the Appellant did not receive this income from Employer B Pty Ltd after 18 January 2018 and yet they included it in their calculation of the Appellant’s income for the periods of 1 January 2018 to 1 January 2019 and 1 January 2019 to 31 December 2019.
In those circumstances, this ground of appeal is made out.
Question of law (6): Did the learned tribunal member provide adequate reasons?
Ground of appeal (8): The learned tribunal member provided inadequate reasons.
The Appellant did not actually address this ground of appeal in either his written or oral submissions.
In his written submissions filed 15 September 2019 the Appellant states:
“Section 37(1) Statement of Documents details of objection decision page 347 clearly states there are 3 criteria that need to be satisfied.”
The Appellant did not take the Court to the document or documents he was referring to in this submission.
Perusal of the balance of the Appellant’s written submissions under this heading do however appear to address sections 117(4)(a) and 117 (7)(b) of the Act. These are not the sections of the Act that the Tribunal relied upon in reaching its decision.
Addressing this ground of appeal, the Second Respondent argues that even where written reasons are brief, brevity of itself is not an error (NAXT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 279 at [15]; Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [26]).
It is submitted on behalf of the Second Respondent that the Tribunal’s reasons clearly set out the basis upon which it reached its decision and that accordingly this question of law/ground of appeal should be dismissed.
I am in complete accord with the submission of the Second Respondent and this ground does not succeed.
Conclusion
The Court finds that the Tribunal has made an error of law in that it erred in calculating the Appellant’s income based on wages no longer being received by the Appellant and by accepting the monetary values placed on the accommodation, phone and motor vehicle provided by the Applicant’s brother by a Department Officer without conducting its own independent review or enquiry.
The Court also posits that given the inherit difficulties in properly determining what the actual incomes of the Appellant and First Respondent are in this matter, the Tribunal should not have tried to set the Appellant’s ATI and then apply the formula to determine the child support payable by him. Rather, a better outcome may have been for the Tribunal to have determined the appropriate level of child support payable by the Appellant independently of the formula.
It therefore follows that the appeal is allowed and an order will be made that the decision by Member P Noonan of the Tribunal of 20 August 2018 be set aside and the matter be remitted to the Tribunal for rehearing.
I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of Judge Bender
Associate:
Date: 1 October 2019
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