Essex and Essex (SSAT Appeal)
[2011] FMCAfam 688
•31 October 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ESSEX & ESSEX (SSAT APPEAL) | [2011] FMCAfam 688 |
| CHILD SUPPORT – SSAT APPEAL – Appeal from decision of SSAT – Tribunal found to have properly considered the relevant period for the departure application – otherwise appeal found not to be an appeal on a question of law– appeal dismissed. |
| Family Law Act 1975, s.75(2) Child Support (Registration and Collection) Act 1988, s.110B Child Support (Assessment) Act 1989, ss.98S, 114, 117 |
| Gyselman & Gyselman (1992) FLC 92-279 Hides & Hatton (1997) FLC 92-759 LDME & JMA (SSAT Appeal) [2007] FMCAfam 712 Tasman & Tisdall [2008] FMCAfam 126 Hadley & Hadley (SSAT Appeal) [2008] FMCAfam 1252 Parrish & Torres (SSAT Appeal) [2009] FMCAfam 274 Barone & Bianco (SSAT Appeal) [2010] FMCAfam 836 |
| Appellant: | MS ESSEX |
| Respondent: | MR ESSEX |
| File Number: | LNC 284 of 2007 |
| Judgment of: | Bender FM |
| Hearing date: | 1 July 2011 |
| Date of Last Submission: | 1 July 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 31 October 2011 |
REPRESENTATION
| Counsel for the Appellant: | In person |
| Solicitors for the Appellant: | In person |
| Counsel for the Respondent: | In person |
| Solicitors for the Respondent: | In person |
ORDERS
The Notice of Appeal filed by the appellant on 18 April 2011 from the decision of the Social Security Appeals Tribunal dated 3 June 2010 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Essex & Essex (SSAT Appeal) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT HOBART |
LNC 284 of 2007
| MS ESSEX |
Appellant
And
| MR ESSEX |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an appeal from a decision of the Social Security Appeals Tribunal (“the SSAT”) dispatched 15 June 2010 relating to the child support payable by the respondent.
The parties are the parents of [X] born [in] 1989 (“[X]”) and [Y] (“[Y]”).
The parties married in 1981 and separated in January 2000. At all times since separation, until [X] commenced University after finishing school, [X] and [Y] have lived in the primary care of the appellant.
The parties were embroiled in lengthy litigation before the Family Court in relation to property matters. The matter was initially heard before Benjamin J who delivered judgment on 2 July 2007. The appellant appealed Benjamin J’s decision and the Full Court of the Family Court handed down its’ decision on 22 December 2009.
The amount of child support payable by the respondent has been varied on many occasions as a result of change of assessment applications lodged by both parties since separation.
The decision of the SSAT against which the appellant is appealing was handed down on 15 June 2010. On 21 September 2010 the appellant filed an Application seeking leave to appeal the decision of the SSAT out of time.
I heard the appellant’s Application on 25 March 2011 and in my decision handed down on 18 April 2011, the appellant was given leave to appeal the decision of the SSAT dispatched on 15 June 2010 out of time.
The appellant was represented at her leave application but was
self-represented at the hearing of the appeal. The respondent was
self-represented at all times. The Child Support Registrar was excused prior to the hearing of the matter but, with my leave, filed and served written submissions as to the appeal for the court’s consideration.
Child Support History
In paragraph 6 of my reasons for judgment in relation to the appellant’s Application for leave to appeal out of time, I summarised the Child Support history of the matter in the following terms:
6.The history of the matter which gives rise to the wife’s Application for leave to appeal out of time can be summarised as follows:
·In 2007 the husband was administratively assessed by the Child Support Agency (“the CSA”) to pay by way of Child Support:
i) an annual rate of $11,837.00 for the period
24 November 2007 to 4 February 2008;
ii) an annual rate of $333.00 for the period
5 February 2008 to 10 February 2008; and
iii) an annual rate of $11,600.00 for the period
11 February 2008 to 30 June 2008.
·On 10 December 2007 the wife lodged with the CSA a request for a change of assessment for the previous 18 months and into the future on the basis of the children’s educational expenses, her own necessary expenses for self-support and the husband’s income, financial resources and earning capacity. The husband lodged a cross application on 18 March 2008 on the basis the wife had greater financial resources than assessed.
·On 8 April 2008 a senior case officer made a decision to depart from the administrative assessment and increased the amount of Child Support payable by the husband for [Y].
·On 27 August 2008 the husband objected to the decision of the senior case officer on the basis the wife did not use the Child Support for school fees but for her own use.
·On 10 October 2008 the wife objected to the decision of the senior case officer on the basis that not all [Y]’s educational expenses had been considered, that she had to pay a significant amount for her own medication and that the husband had access to a greater income and financial resources than considered by the CSA.
·On 14 October 2008 both parties were given an extension of time to lodge their objections with the CSA.
·On 13 March 2009 an objections officer of the CSA disallowed both objections.
·On 8 April 2009 the wife applied to the SSAT. At hearing on 21 October 2009, the wife sought an adjournment of the hearing pending the decision of the Full Court on property matters.
·
After the Full Court decision was handed down on
21 December 2009, the SSAT hearing was relisted on
22 February 2010.
·On 15 June 2010 the SSAT dispatched its decision. The wife received the decision on 21 June 2010 upon her return from holiday.
·The SSAT determined to set aside the decision made by the CSA objections officer on 13 March 2009 and substituted it’s decision that:
i) for the period 5 February 2008 to 30 June 2008 the amount of support payable by the husband should be increased by $1,540.00 per annum which meant his Child Support decreased by $75.00 per week from the determination by the CSA review officer. This left the wife with an overpayment for this period of $1,600.00; and
ii) for the period 1 July 2008 to 31 May 2009 the husband’s rate of Child Support should be increased by $2,240.00. This represented an overpayment of approximately $28.00 per week resulting in an overpayment to the wife of approximately $1,320.00 for this period.
For the purposes of this judgment, I will expand a little on this history, and in particular the decisions of the Senior Case Officer and Objections Officer.
In October 2006, the Child Support Registrar made a determination to depart from the administrative assessment of child support. Under that determination, Mr Essex’s child support liability was set by change of assessment to be $20,968.00 per year from 1 June 2006 until a terminating event occurred in respect to the child [X] (such terminating event occurred on 23 November 2007 when [X] had turned 18 and completed high school).
The Child Support Registrar then determined that from 24 November 2007 to 4 February 2008, Mr Essex’s child support liability be
$11, 837.00 per annum, from 5 February 2008 to 10 February 2008 it be $333.00 per annum and from 11 February 2008 to 30 June 2008 it be $11,660.00 per annum.
On 10 December 2007, Ms Essex lodged with the Child Support Agency an application for a change of assessment from 1 January 2006 onwards based on [X] and [Y]’s education expenses, her own necessary expenses for self-support and Mr Essex’s income, financial resources and earning capacity. Mr Essex lodged a cross-application on 18 March 2008 on the basis Ms Essex had greater financial resources than assessed.
The Senior Case Officer who determined the change of assessment applications lodged 10 December 2007 and 18 March 2008 respectively noted that section 98S(3B) of the Child Support (Assessment) Act 1989 limits the period for variation of child support to no more than 18 months prior to the day on which an application for variation is made. Accordingly the Senior Case Officer limited her consideration to the assessments made from 10 June 2006.
On 18 April 2008, a Senior Case Officer decided to depart from the administrative assessment for the period 5 February 2008 to
31 May 2009. The Senior Case Officer set Mr Essex’s child support income at $89,000.00, Ms Essex’s child support income at $30,000.00, and increased the annual rate of child support payable by Mr Essex by $5,540.00, being his contribution towards [Y]’s private school fees and [sport omitted] costs.
The Senior Case Officer noted that the proceedings before her were not “an appeal” against the findings of the Registrar and thus the payment rate could only be reviewed if significant new evidence had become available. It was in this context that the Senior Case Officer determined the matter, including making no adjustment earlier than February 2008.
As noted, on 27 August 2008, Mr Essex objected to the decision of the Senior Case Officer on the basis the wife did not use the child support for school fees but for her own use. On 10 October 2008, Ms Essex objected to the decision of the Senior Case Officer on the basis that not all [Y]’s educational expenses had been considered, that she had to pay significant medical costs for herself and Mr Essex had access to greater income and financial resources than has been considered by the Child Support Agency.
On 14 October 2008, both parties were granted an extension of time to lodge their objections to the decision of the Senior Case Officer. On
3 March 2009, an Objections Officer dismissed both parties’ objections.
On 28 April 2009, Ms Essex applied to the SSAT for a review of the decision of the Child Support Agency. On 21 October 2009, Ms Essex asked for the hearing before the SSAT to be adjourned pending the decision of the Full Court of the Family Court on her appeal as to property matters. The appeal was re-listed before the SSAT on 22 February 2010. The SSAT dispatched their decision on 15 June 2010.
In the determination of this matter, the SSAT considered some 1100 pages of written material and heard more than six hours of oral evidence.
Reasons of the Social Security Appeals Tribunal
The Tribunal found “as fact” that the relevant child support period was from 1 April 2007 to 30 June 2008. They also found a new child support period commenced on 1 May 2008 to 31 May 2009 arising from Mr Essex’s actual 2006/2007 taxable income of $94,542.00.[1]
[1] Paragraph 26 of the Tribunal’s Reasons
The Tribunal noted that the parties agreed the matter under review was the administrative assessment of child support to 31 May 2009, as a separate decision had been made for child support from 1 June 2009.[2]
[2] Paragraph 26 of the Tribunal’s Reasons
The Tribunal then considered each of the bases upon which the parties had sought a departure.
Quite appropriately, the Tribunal noted that to determine whether a departure should be allowed it must determine:
a)whether one of the grounds for departure under section 117(2) of the Child Support (Assessment) Act 1989 exists; and if so
b)whether it would be:
i)just and equitable as regards the child, the liable parent, and the carer entitled to child support; and
ii)otherwise proper
to make a particular determination to depart from the administrative assessment of child support.
In respect to Ms Essex, the Tribunal identified that there were three grounds upon which she sought a departure from the child support assessment.
Section 117(2)(b)(ii) Education Costs for [X] and [Y]
Ms Essex argued that in the special circumstances of the case, the costs of maintaining the children were significantly affected by the costs of educating the children (section 117(2)(b)(ii) of the Child Support (Assessment) Act 1989).[3]
[3] Paragraph 28 of the Tribunal’s Reasons
Before the Tribunal, Ms Essex sought an increase in child support for both [X] and [Y].
[X]
In relation to [X], the Tribunal’s Reasons indicate Ms Essex sought further support in respect to [omitted] lessons and education costs.
The Tribunal noted that the costs in relation to [X], particularly [omitted] lessons, had been addressed in the Objection Decision of
2 October 2006. The Objections Officer found that [X] no longer attended [omitted] lessons and also found that they could not be satisfied that both parents had agreed to [omitted] lessons.[4]
[4] Paragraph 33 of the Tribunal’s Reasons
Noting that it did not have jurisdiction to review Objections Decisions of the Child Support Agency prior to 1 January 2007 when its’ jurisdiction to renew Objection Decisions as came into force, the Tribunal noted it could consider evidence submitted by an appellant lodging an appeal after 1 January 2007 to an earlier decision if such evidence had not been reviewed by the Objections Officer in the earlier decision.
The Tribunal stated at paragraph 34:
“no new evidence was presented in relation to [X]’s [omitted] lessons.”[5]
[5] Paragraph 34 of the Tribunal’s Reasons
In their Reasons, the Tribunal noted Ms Essex claimed she spent $6,500.00 on school expenses for [X] in 2006 and 2007. The Tribunal stated that in the 8 April 2008 decision of the Senior Case Officer she found [X] had attended public school during that period. Accordingly the Tribunal found in paragraph 35 it:
“had no evidence to the contrary and it was not satisfied that fees and expenses associated with public schooling represent special or extraordinary expenses that would not usually be covered by the operation of the child support formula.”
Accordingly the Tribunal found that Ms Essex’s application for a departure for child support for [X] pursuant to section 117(2)(b)(ii) of the Child Support (Assessment) Act 1989) was not established.
[Y]’s Education Costs – School Fees
In relation to [Y], Ms Essex claimed before the Tribunal that she incurred costs for private school fees, [omitted] lessons and [sport omitted].
[Y] attended [T] School until the end of Term 1 2009 (29 May 2009). Ms Essex estimated the costs of attendance at the school as $7,000.00 per year, including fees, activities and materials. This amount was not disputed by either party when before the Senior Case Officer.
The Tribunal was satisfied that both parties intended [Y] to be privately educated.
The Tribunal noted that Ms Essex stated in her change of assessment application that [Y]’s school fees for 2007 were $3,945.00 plus additional costs of $1,566.00, a total of $5,511.00 for 2007. A statement of account for 2007 from [T] issued to Mr Essex disclosed term fees, materials and activity costs totalling $4,581.00. No independent documents were presented to the Tribunal by the parties in respect to the 2008 and 2009 fees, but they were estimated by
Ms Essex to be $6,432.00 for 2008 and by Mr Essex to be $2,700.00 to May 2009.
Mr Essex’s response to the change of assessment process was that [Y]’s school fees to June 2007 were paid from a joint account and that thereafter he had been paying the fees.
The Senior Case Officer determined that the costs of educating [Y] at [T] were $7,000.00 per annum. The Tribunal found that there was no basis for concluding the costs of schooling at [T] for [Y] were as high as estimated by the Senior Case Officer and accepted they were $4,581.00 in 2007, $6,432.00 in 2008 and $2,700.00 in 2009.[6]
[6] Paragraph 47 of the Tribunal’s Reasons
The Tribunal, having found the costs of attending a private school were greater than attending a government school, stated at paragraph 43 of their Reasons:
“Ms Essex did not dispute Mr Essex’s evidence that he had been paying [Y]’s school fees since July 2007 and that, before then, the fees were paid out of a joint account.”
The Tribunal therefore determined at paragraph 44 of their Reasons:
“As Ms Essex has not been responsible for meeting the costs of [Y]’s tuition in a private school, the Tribunal was not satisfied her costs of maintaining the child were significantly affected by the costs of the private education. The Tribunal concluded there were no special circumstances such as to warrant a departure under subparagraph 117(2)(b)(ii).”
Additional Educational Costs
In addition to the cost of school fees, Ms Essex argues that additional education costs were incurred because of [Y]’s music lessons, [omitted] lessons and the purchase of a computer.
Music Lessons
[Y] played [instruments omitted]. There was considerable disputation between the parties as to the purchase of a new [instrument omitted] for [Y]. Ms Essex bought the [instrument] (sometime in 2008) and at some time subsequent to the purchase, Mr Essex reimbursed Ms Essex for “his share” of the [instrument]. Ms Essex advised the Tribunal its’ purchase (and the need for it to be considered by the Tribunal) was no longer an issue.
The Tribunal accepted that both parents had agreed [Y] should be able to study one instrument. Mr Essex stated he was happy for [Y] to learn one instrument, not two or more. Given the joint purchase of a [instrument], the Tribunal found that the [omitted] was the preferred instrument.
The Tribunal calculated the cost of [music] lessons to be $2,340.00 per annum.
The Tribunal concluded at paragraph 49 of its’ Reasons:
“The Tribunal was satisfied that these costs are significant and give rise to special circumstances such as to warrant a departure under subparagraph 117(2)(b)(ii).”
[Sport omitted]
In respect to [Y]’s [sporting] costs, the Tribunal was satisfied there was agreement between the parents that [Y] attended [sport omitted] in 2007 and that in December 2007 Mr Essex paid $2,000.00 of the $2,315.00 [sport] fees for 2007. [Y] stopped attending [sport omitted] at the end of 2007.
The Tribunal noted that in 2006 the Registrar found there was no common ground between the parties for [Y] to attend [sport omitted] in that year and thus Mr Essex had no responsibility to pay [sport omitted] fees for that year. As no new evidence on this issue was before the Tribunal, the Tribunal did not disturb the 2006 finding of the Registrar.
As Mr Essex had paid $2,000.00 of the $2,315.00 [sport omitted] fees for 2007, the Tribunal found that the $315.00 paid by Ms Essex was not a significant additional expense to Ms Essex for that activity.[7]
[7] Paragraph 55 of the Tribunal’s Reasons
Computer
Ms Essex sought that Mr Essex contribute at least half of the costs of the Apple (“Mac”) computer that she believed [Y] needed at the beginning of 2008. Ms Essex purchased [Y] a Mac at a cost of $2,700.00.
Mr Essex stated that he did not agree [Y] required a Mac but rather a less expensive PC such as a “Dell” would suffice and he agreed to pay half the cost of a Dell, being $650.00.
The Tribunal found in relation to the computer at paragraph 55 of their Reasons:
“The evidence is that Mr Essex already paid $650, that is half of the cost of a PC, and the Tribunal was not satisfied that it was reasonable for Mr Essex to bear additional costs in this regard, given that there was no common ground to purchase a more expensive Macintosh computer for [Y].”
The Tribunal therefore concluded in relation to Ms Essex’s claim for a departure of child support pursuant to section 117(2)(b)(iii) of the Child Support (Assessment) Act 1989) at paragraph 56 of its’ Reasons that the claim:
“was established in relation to the additional costs for music lessons for [Y], but not in relation to the private school fees, [sport omitted] or a computer.”
Section 117(2)(b)(iii) Capacity to provide financial support
Medical expenses
Ms Essex also applied for a change of assessment under section 117(2)(b)(iii)(A) of the Child Support (Assessment) Act 1989 on the basis that her capacity to provide financial support for the children was significantly reduced because of the necessity to support herself.
The wife was required to pay $16,000.00 for the cost of an 18 month course of medication from August 2008 to January 2009 to treat her [condition omitted].
Mr Essex did not dispute the necessity for Ms Essex’s medical costs but argued she could have utilised some of her property settlement to pay for them rather than voluntarily putting $125,000.00 of her settlement monies into superannuation.
Whilst the Tribunal accepted that Ms Essex required the medication to treat her [condition omitted] and had to fund it in its entirety, they also considered that Ms Essex had received a large property settlement and voluntarily contributed $125,000.00 of same to her superannuation. The Tribunal had regard to the decision of Riethmuller FM in Parrish & Torres (SSAT Appeal) [2009] FMCAfam 274 where His Honour held:
“In cases where a person salary sacrifices or otherwise enters into voluntary arrangements to make additional contributions on their own behalf, ordinarily such additional contributions would be considered as if they were available income.”
In paragraph 67 of its’ Reasons, the Tribunal held:
67.In this case, Ms Essex was not required to make additional superannuation contributions as part of her conditions of employment, but made a voluntary contribution to increase her superannuation savings at a time when she said she had been informed of the cost of the recommended treatment. Whilst the Tribunal understands Ms Essex’s argument, it was not satisfied that she could not have used some of that money to pay for her medication.
Study Costs
Ms Essex also submitted she was re-training to become a [occupation omitted] at a cost of $400.00 in 2008 and $450.00 in 2009. She argued these costs should be regarded as necessary self-support commitments.
In relation to her study expenses, the Tribunal held at paragraph 63 of its’ Reasons:
“Although Ms Essex may wish to enhance her employment prospects by undertaking further studies, the Tribunal was not convinced that the study expenses could be regarded as unavoidable and absolutely necessary for self-support.”
Accordingly, the Tribunal held at paragraph 68 of its’ Reasons:
68.On the basis of the above considerations, the Tribunal decided that the ground for departure in sub-paragraph 117(2)(iii)(A) has not been established in relation to study expenses in 2008 and 2009 or medical costs incurred by
Ms Essex in the period October 2007 to December 2008.
Section 117(2)(c) (iii) Income, property and financial resources
Ms Essex also applied for a change of assessment under sections 117(2)(c) and (7A) of the Child Support (Assessment) Act 1989 on the ground that the administrative assessment was unjust and unequitable because of Mr Essex’s income, property and financial resources.
Subsection 117(2)(c) and (7A) of the Child Support (Assessment) Act 1989 provide a ground of departure exists where:
Grounds for departure order
(2)For the purposes of subparagraph (1)(b)(i), the grounds for departure are as follows:
(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.
(7A)In having regard to the income, property and financial resources of a parent of the child, the court must:
(a) have regard to the capacity of the parent to derive income, including any assets of, under the control of, or held for the benefit of, the parent that do not produce, but are capable of producing, income; and
(b) disregard:
(i)the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child, or who has such a duty but is not a party to the proceeding, unless, in the special circumstances of the case, the court considers that it is appropriate to have regard to them; and
(ii)any entitlement of the child or the carer entitled to child support to an income tested pension, allowance or benefit.
Bonus Payments
Ms Essex claimed Mr Essex received $25,000.00 in bonus payments from his employment in 2006 and would continue to be eligible for such payments into the future. Mr Essex explained he no longer received bonuses as he had changed employment and was no longer a private contractor.
The Tribunal considered the extensive evidence provided by Mr Essex as to his income for the financial years 2005/2006, 2006/2007, 2007/2008 and 2008/2009. In paragraph 77 of their Reasons, the Tribunal held:
77.Whilst the Tribunal noted additional amounts of money in Mr Essex’s bank statements, which were not reflected in his taxable income, there was no evidence to show that
Mr Essex had received bonus payments from his employers since 2006, and the Tribunal found accordingly.
Fringe Benefits
Ms Essex further argued Mr Essex received additional fringe benefits from his employer by way of a company vehicle and food and accommodation costs for the period when he worked in Hobart in 2008 (Mr Essex lives in Launceston).
Mr Essex confirmed he had a company vehicle. It was his evidence that private use of that vehicle was 33 per cent when with his previous employer but with his change of employer this had reduced to five per cent. He estimated the benefit to him to be $50.00 per week.
Ms Essex argued before the Tribunal that the benefit to Mr Essex of his use of the company car should be no less than $188.00 per week (being $9,776.00 per annum). She argued that in the 2006 change of assessment determination, the Child Support Agency found that
Mr Essex’s fringe benefits in 2005/2006 for use of his vehicle were $9,796.00. The Tribunal noted however that for the 2006/2007 financial year, the Child Support Agency found Mr Essex’s use of his company vehicle for private purposes had decreased to 30 per cent and they allowed a figure of $3,700.00 as Mr Essex’s benefit from his company car in that year.[8]
[8] Paragraph 80 of the Tribunal’s Reasons
In paragraph 82 of its’ Reasons, the Tribunal noted that it:
“had no evidence to support Ms Essex’s assertion that
Mr Essex had a higher private use of the company car than his estimate of about one sixth of the private use he formerly had.”
The Tribunal also stated in paragraph 83 of its’ Reasons that it would have regard to the Family Court’s decision of 2007 when it attributed fringe benefits of $9,000.00 to the use of the company car. It then calculated that a pro rata reduction from 33 per cent to five per cent personal use would result in a reduction from $9,000.00 to about $1,363.00.
In paragraph 84 of its’ Reasons, the Tribunal noted Mr Essex’s estimate that the benefit to him of having access to a company car was about $2,500.00 per annum, being more than a third of the value previously assigned by the Tribunal and more than the Tribunal estimate. The Tribunal therefore determined:
“In the absence of any other evidence the Tribunal accepted
Mr Essex’s estimate that $2,500 per annum was a reasonable amount of the benefit available to him from his company vehicle.”
In relation to the benefit Mr Essex received for meal costs paid for him by his employer in the 30 weeks between March 2008 and September 2008, when he worked away from home between two and four days per week, the Tribunal found that Mr Essex saved approximately $1,200.00 in having meals provided rather than purchasing groceries.
The Tribunal also found that Mr Essex saved on his utility costs in the period from March to September 2008 and, based on Mr Essex’s estimated weekly costs for his utilities of $1,380.00, held he would have saved $460.00 in gas and electricity expenses.
Accordingly the Tribunal found that Mr Essex incurred financial benefits between March and September 2008 in relation to meal and travel allowance of $1,660.00.
[S] Trust
Mr Essex’s mother established two discretionary Trusts, the [N] Trust and the [S] Trust. Mr Essex’s brother and sister-in-law are the primary beneficiaries of the [N] Trust. Mr Essex is the primary beneficiary of the [S] Trust, together with his brother and [W] Pty Ltd which is the corporate trustee of that Trust. Mr Essex’s brother is the sole director of [W] Pty Ltd and the sole arbiter of distributions of income and capital from the [S] Trust. The parties’ children [X] and [Y] are the capital beneficiaries of the [S] Trust.
Ms Essex strongly argued that Mr Essex was a regular beneficiary of the Family Trusts established by his parents, being the [S] Trust and the [N] Trust. She estimated Mr Essex’s income from the Trusts to be $40,000.00 to $45,000.00 per annum. She, in part, based this on an alleged conversation with the Trusts’ accountant.
Mr Essex denied receiving any income from the Trusts, save for $632.00 in October 2006. Mr Essex produced letters from the Trusts’ accountant denying Ms Essex’s claims of an alleged conversation between themself and Ms Essex and denying any distributions were made by the Trusts to Mr Essex, save for the $632.00 in October 2006.
Ms Essex referred the Tribunal to what she claimed were unexplained deposits and withdrawals of large sums of money from Mr Essex’s bank accounts in May/June 2008 and June/July 2009 as evidence of
Mr Essex receiving income additional to his salary and therefore income from the Trusts.
In paragraphs 96 to 100 of its’ decision, the Tribunal carefully set out its’ finding of their examination of Mr Essex’s bank accounts for the periods May/June 2008 and for June/July 2009. The Tribunal was fully satisfied as to his explanation for the funds coming into and out of his accounts for these periods. At paragraph 101 of its’ Reasons, the Tribunal stated:
“The Tribunal carefully examined all bank statements supplied by Mr Essex and found no evidence to support Ms Essex’s notion that Mr Essex received any income from the [S] Trust to the date of hearing.”
The husband’s interest in and the structures of his Family Trusts were extensively examined by the Family Court at first instance by Benjamin J in 2007 and on appeal to the Full Court who handed down their decision on 22 December 2009.
In paragraphs 91 to 94 of their Reasons, the Tribunal summarised the findings of the Full Court as follows:
91.… The Full Court of the Family Court specifically addressed whether Mr Essex had a financial resource in the trusts (A7). In making its decision, this Tribunal was bound to adopt the Court’s findings as matters of fact. Paragraph 168 of the decision of Bryant, CJ and Boland, J notes in part:
“We consider his Honour was clearly correct in his findings that the assets of [S] were not the property of the husband.”
92.At paragraph 172, it reads:
“We consider there is merit in the submissions of the wife’s counsel insofar as [S] is concerned, and that the evidence admits a compelling inference that the husband will receive distributions from [S] at the conclusion of the proceedings:
…
Secondly, the difference in the provision of the two trust deeds is relevant. The beneficiaries of the [N] Trust deed evince a clear intention in the drafting of that trust to benefit Mr E and his wife. As they do not have children, the wide class of general beneficiaries (who are not named) is readily appreciable. The [S] trust deed evinces a clear intention that the capital of that trust be distributed on vesting, or at such earlier time as the trustee may determine, to the two children of the marriage, the grandchildren of
Ms E. It also discloses a clear intent that the husband, as one of the three named income beneficiaries, is entitled to be considered to receive distributions of income until the vesting of the trust.”93. At paragraph 176, it reads:
“…This in our view required the trial Judge to find that [S] was a financial resource of the husband.”
94. And at paragraph 181:
“While the income likely to be received by the husband from [sic [S]] at the conclusion of the proceedings is not substantial in the context of his other income and property, it is likely to be roughly equal to that which the wife earned from her employment in 2006.”
In paragraph 95 of its’ Reasons, the Tribunal stated:
“There was no evidence before the Tribunal that the evidence considered by the Court has changed or that there has been doubt cast on the findings of the Court. Accordingly, the Tribunal found that the [S] Trust is a financial resource of Mr Essex and he is likely to receive income form [sic] the trust at the conclusion of the Family Court proceedings.”
At paragraph 102 of its’ Reasons, the Tribunal concluded as follows:
“The Tribunal was therefore satisfied that Mr Essex has not received income from the [S] Trust during the period under review and it noted that the Family Court surmised in its decision of 22 December 2009 that he was likely to receive distributions from the Trust at the conclusion of the proceedings that is after the end of 2009.”
The Tribunal therefore determined that Mr Essex’s total financial resources for the financial years 2006/2007, 2007/2008 and 2008/2009 did not include income or resources from the [S] Trust.
Property Settlement monies
Both parties alleged, each against the other, that each had additional sums of money arising from the property settlement decision made on 22 December 2009 which should be included as part of their income for child support purposes. Having considered each party’s evidence, the Tribunal was satisfied that neither party had additional monies or income arising from the property settlement.
Parties’ earning capacity
Both parties also alleged, each against the other, that each had a greater earning capacity than was currently being exercised by either of them. The Tribunal, after careful consideration of the specific requirements of section 117(7B) of the Child Support (Assessment) Act 1989 was of the view neither party could be attributed with a higher earning capacity than they were currently exercising.
Just and equitable and otherwise proper
Having been satisfied there was a ground to depart from the administrative assessment of child support for [Y], the Tribunal then considered whether it would be just and equitable and otherwise proper to depart from that assessment.
The Tribunal properly considered the factors set out under section 117(4) and section 114 of the Child Support (Assessment) Act 1989 and concluded that a departure determination was appropriate in this case.
Departure Period
Under the heading “What is an appropriate departure determination in this case and for what period?”, the Tribunal noted that Ms Essex had applied for a change of assessment on 10 December 2007 from 1 January 2006 onwards. The Tribunal confirmed that section 98S(3B) of the Child Support (Assessment) Act 1989 prohibits change of assessments occurring more than 18 months prior to the date of the application without leave of the court. Therefore the Agency limited it’s review to the 18 months prior to the date the application to review was filed, being 10 June 2006, and had, having considered all factors, changed the assessment from 8 February 2008 to 31 May 2009 only.
At paragraph 176 of its’ decision, the Tribunal observed that it was very conscious it was dealing with an assessment period now in the past and that meant it had the benefit of hindsight in relation to the parties’ income. They also noted this meant any departure determination would inevitably result either in arrears for Mr Essex or a debt for Ms Essex. They therefore determined:
“Because the decision will have an impact on Mr and Ms Essex’s current financial situation, the Tribunal has decided not to change the time period for which it will make the departure determination.”
Thus the SSAT, having determined it would depart from the child support assessment made by the Child Support Agency Objections Officer, decided it would only do so for the period 8 February 2008 to 31 May 2009.
Social Security Appeals Tribunal decision
On 3 June 2010, the Tribunal decided to set aside the decision made by the Child Support Agency Objections Officer on 13 March 2009 and substitute that decision that:
·Mr Essex’s child support income amount is set at $150,104 per annum from 5 February 2008 to 30 June 2008.
·Ms Essex’s child support income amount is set at $82,663 per annum from 5 February 2008 to 30 June 2008.
·The annual rate of child support payable by Mr Essex is increased by $1,540 per annum from 5 February 2008 to 30 June 2008.
·Mr Essex’s adjusted taxable income is set at $98,729 per annum from 1 July 2008 to 31 May 2009.
·Ms Essex’s adjusted taxable income is set at $20,345 per annum from 1 July 2008 to 31 May 2009.
·
The annual rate of child support payable by Mr Essex is increased by $2,240 per annum from 1 July 2008 to
31 May 2009.
This decision was dispatched to the parties on 15 June 2010.
The Tribunal at paragraphs 178 to 185 of their Reasons set out the minutae of this decision in the following terms:
5 February 2008 to 30 June 2008
178.The Tribunal decided to set Mr Essex’s child support income amount at $150,104 per annum and to set
Ms Essex’s child support income amount at $82,663 per annum for the period 5 February 2008 to 30 June 2008.
179.The Tribunal also decided that as Mr Essex’s income represented about 55% of the couple’s combined child support income at the time that he should be liable to pay 55% of the cost for music lessons of $2,800, which is $1,540.
180.Accordingly, the Tribunal decided that the rate of child support payable by Mr Essex should be increased by an annual rate of $1,540 in the period 5 February 2008 to 30 June 2008.
181.According to the Tribunal’s calculations, this means that Mr Essex’s child support rate would decrease by approximately $75 per week in that period, resulting in an overpayment of about $1,600 for this period.
1 July 2008 to 31 May 2009
182.The Tribunal decided to set Mr Essex’s adjusted taxable income at $98,729 per annum and to set Ms Essex’s adjusted taxable income at $20,345 per annum for the period 1 July 2008 to 31 May 2009.
183.The Tribunal also decided that as Mr Essex’s income represented about 80% of the couple’s combined child support income at the time that he should be liable to pay 80% of the cost for music lessons of $2,800, which is $2,240.
184.Accordingly, the Tribunal decided that the rate of child support payable by Mr Essex should be increased by an annual rate of $2,240 in the period 1 July 2008 to
31 May 2009.
185.According to the Tribunal’s calculations this means that Mr Essex’s child support rate would decrease by approximately $28 per week in that period, resulting in an overpayment of about $1,320 for this period.
The “overpayments” found to have been received by Ms Essex as a result of the Tribunal’s decision were recovered by the Child Support Agency by them retaining 17 per cent of the monthly child support paid by Mr Essex on a monthly basis from August 2010 until the full amount had been recovered.
Appeal from decision of the Social Security Appeals Tribunal
As noted previously in this judgment, the appellant filed an Application for Leave to Appeal Out of Time on 21 September 2010. On 18 April 2011 the appellant was given leave to appeal the decision of the SSAT dispatched on 15 June 2010 out of time.
Accordingly, the appellant’s Notice of Appeal was filed on 18 April 2011.
Grounds of Appeal
Whilst represented for her Application for Leave to Appeal Out of Time, the appellant was unrepresented for the appeal itself.
In her Notice of Appeal, the appellant set out four grounds of appeal, the second of which related to the SSAT including the capital gains income received by both parties in 2008/2009 in their income for the purposes of the assessment of the Child Support Agency. Quite properly the appellant did not pursue this ground at the hearing of the Appeal.
The remaining grounds of her appeal can be gleaned from the appellant’s Notice of Appeal filed 18 April 2011, Outline of Case filed 1 June 2011 and oral submissions at the hearing of the matter and can be summarised as follows:
(1)
The SSAT erred in law in limiting the time period in which to make a departure determination to 5 February 2008 to
31 May 2009.
(2)The SSAT erred in law in failing to take into consideration material provided by the appellant in relation to her payment of a school exchange trip by [X] to France in December 2006.
(3)The SSAT erred in law in failing to take account material provided by the appellant which showed she paid [Y]’s school fees from 2008 to April 2009.
(4)The SSAT erred in law in failing to take into consideration evidence provided by the appellant of the respondent’s financial interests in the [S] Trust and of payments made to him by [W] Pty Ltd in their determination of his income, property and financial resources as required by section 117(2)(c) of the Child Support (Assessment) Act 1989.
(5)The SSAT erred in law in failing to take into account evidence provided by the appellant that the respondent used his car for a greater percentage of non-work purposes than was determined by the SSAT.
Ground 1 Was there an error in law in the time period to which the SSAT limited their departure determination?
When the appellant lodged her change of assessment application with the Child Support Agency on 10 December 2007, she sought a review of child support from 1 January 2006 onwards (noting that on
10 March 2006 a change of assessment issued whereby the respondent’s annual rate of child support was set at $20,398.00 from
1 January 2006 until [X] turned 18 or [date omitted] 2007).
The Senior Case Officer who first determined the change of assessment applications of the parties stated in her decision handed down on
8 April 2008 that whilst the appellant had sought to have the decision backdated to 1 January 2006, she was prevented by Statute from departing from an assessment for a period of more than 18 months prior to the date of the application without order of the court. Further, she held that to retrospectively alter an assessment had real implications for the parties in terms of a potential debt that either of the parties could be required to pay. The Senior Case Officer, having determined a departure from the assessed child support was just and equitable ruled that such departure was to commence as from
5 February 2008 (at which time child support had been assessed at the legislative minimum rate) and to prevent the need for further assessment within a short period of time extended the change of assessment for 15 months to 31 May 2009.
As noted previously in this judgment at paragraphs 89, 90 and 91, the Tribunal determined not to change the time period from which it would make the departure application from that of the Child Support Agency because of the impact such decision would potentially have on Mr and Ms Essex.
The Full Court in the matter of Hides & Hatton (1997) FLC 92-759 considered the question of making a retrospective departure assessment under the Child Support (Assessment) Act 1989. At 84-354, their Honours held:
“… there would seem to be no time limitation on the making of an assessment (or at least an amended assessment) by the Agency for a past year; nor on an application for a review by a Child Support Review Officer of an assessment (be it original or amended) for a past year; nor on an application to, and determination by, a court for an order departing from an administrative assessment for a past year. Furthermore,
s 141(1)(h) would seem expressly to empower the making of a departure order which has retrospective effect, and this power has been recognised by the Full Court in Bassingthwaite v Leane (1993) FLC 92-410.”
Section 98S(3B) of the Child Support (Assessment) Act 1989 now provides that a Registrar has no power to make a Part 6A determination for:
“a day that is more than 18 months earlier than:
(a)the day on which the application for the determination is made under section 98B
…
if a court has granted leave under section 112 for the determination to be made.”
Accordingly, the appellant was entitled to seek a departure application from the Registrar for the period 18 months prior to the filing of her departure application, that is from 10 June 2006.
In Hides & Hatton (supra), the Full Court clearly spelt that out:
“… the jurisdiction to make an order under s 117 departing from an administrative assessment of child support is a discretionary jurisdiction. But as was made clear by the Full Court in Gyselman and Gyselman (1992) FLC 92-279, it is a highly structured discretion with the Court being required to adhere to the following strict three- step process and to consider (at 79,064):
"1.Whether one or more grounds of departure in s 117(2) is established.
[84352]
If so:
2.Whether it is ''just and equitable'' within the meaning of s 117(4) to make a particular order.
3.Whether it is ''otherwise proper'' within the meaning of s 117(5) to make a particular order."
Further in Hides & Hatton (supra), the Full Court held that when determining whether to exercise its’ discretion to depart from a child support assessment when considering sections 117(4) and 117(5), the court:
“…can have regard to the impact on the payer or the payee of the making of a departure order setting liability for a past period and thus immediately creating the burden of arrears for the payer or of a credit for the payee (the Court being able under s 117(9) to have regard to matters beyond those specified in ss 117(4) and (5)). These may also be matters which could be addressed under s 117(2)(c) when considering whether a ground for departure exists in a particular case.”
The question for determination in this matter is whether the SSAT has exercised its’ discretion in respect to the period 10 June 2006 to
8 February 2008:
“in accordance with the statutory imperative that was required of them.”[9]
[9] Barone & Bianco (SSAT Appeal) [2010] FMCAfam 836, paragraph 25
The appellant did not include this ground of appeal in her Notice of Appeal and it was only in her oral submissions that she raised this issue. The appellant was asked what were the relevant matters the SSAT should have considered between 10 June 2006 and 8 February 2008 that she said would have given rise to the SSAT making a departure order under section 117(2) of the Child Support (Assessment) Act 1989. She argued that there were two specific factors of relevance.
The first of those factors related to the education costs of the parties’ daughter [X] in 2006/2007 and in particular the costs of a school exchange that [X] went on to France at the end of 2006.
The second factor related to the appellant’s medical costs in 2006/2007 which she claimed were considerable and included $16,000.00 of pharmaceutical costs relating to treatment of [condition omitted].
Whilst the Tribunal determined that it would not change the time period for which it would make the departure determination from the period 8 February 2008 to 31 May 2009, perusal of the Tribunal’s Reasons disclose that the Tribunal did consider the two matters that the appellant argued would give rise to a departure for the period
10 June 2006 to 8 February 2008.
Under the heading “Costs in Relation to [X]” at paragraphs 32 to 36 of its’ Reasons, the Tribunal considered the appellant’s claim in respect to the costs of [X]’s education.
The appellant argued before the SSAT that in the special circumstances of the case there should be a departure from the assessed child support pursuant to section 117(2)(b)(ii) of the Child Support (Assessment) Act 1989 arising from the costs of [X]’s education.
In relation to the application for change of assessment, the Tribunal stated that in December 2007 the appellant provided evidence of [omitted] fees for [X] in the sum of $546.00. The Tribunal noted that [X]’s [omitted] lessons had been addressed in the Child Support Agency’s decision of October 2006 whereby the Objections Officer found [X] no longer attended [omitted] lessons and that there was no agreement between the parties to the [omitted] lessons.
The Tribunal also stated that in addition to [omitted] costs, the appellant claimed to have spent $6,500.00 on “school fees” for [X] in 2006 and 2007 (including [X]’s exchange trip to France).
As previously set out in this judgment, at paragraph 35 of their Reasons, the Tribunal stated:
“In her decision of 8 April 2008, the senior case officer found that [X] had been attending a public school throughout that time. The Tribunal had no evidence to the contrary and it was not satisfied that fees and expenses associated with public schooling represent special or extraordinary expenses that would not usually be covered by the operation of the child support formula.”
The Tribunal therefore concluded that the appellant had not established a ground for departure pursuant to section 117(2)(b)(ii) of the Child Support (Assessment) Act 1989 in respect to the costs of [X]’s education.
In her oral submissions to the court at the hearing of her Appeal, the appellant argued the Tribunal had failed to consider a statement from [X] that was Folio 232 in the bundle of documents provided to the SSAT by the Child Support Agency, such bundle being marked EXC1 by the Tribunal.
In that statement, [X] says that the money to pay for her excursion to France was drawn by the appellant from the joint account of the parties which was utilised by them to pay for [X] and [Y]’s education expenses until June 2007.
It has never been the wife’s position that education expenses met from the parties’ joint account should be a relevant factor in child support proceedings. It is therefore difficult to ascertain how [X]’s statement provided to the Child Support Agency supports the wife’s claim that she paid for [X]’s exchange trip to France.
As to the appellant’s medical costs, and as noted previously in this judgment, the Tribunal considered at some length the appellant’s claim that the pharmaceutical costs of $16,000.00 arising from her treatment for [condition omitted] between October 2007 and December 2008 should be taken into account pursuant to section 117(2)(a)(iii) of the Child Support (Assessment) Act 1989 and that in the special circumstances of the case her capacity to provide financial support to the children was significantly reduced because of the necessity to support herself.
The respondent did not dispute the medication or its’ cost, but argued that the appellant could have met those costs from her property settlement and in particular from the $125,000.00 she voluntarily chose to invest in superannuation.
Having considered the decision of Riethmuller in Parrish & Torres (SSAT Appeal) (supra) where His Honour held that voluntary payments by a party to superannuation would ordinarily be considered as if it was available income of that party, the Tribunal held at paragraph 67 of their Reasons that it was not satisfied the appellant could not have used some of the money invested in superannuation to pay for her medication.
Accordingly, the Tribunal decided that the ground for departure under section 117(2)(a)(iii)(A) of the Child Support (Assessment) Act 1989 had not been established by the appellant in relation to her pharmaceutical costs of $16,000.00.
As set out earlier in this judgment, the Full Court in Gyselman & Gyselman (1992) FLC 92-279 set out the three step process the court must follow when considering a departure application.
When perusing that part of the Tribunal’s Reasons where it specifically addresses the time period in which to make a departure application, there is no specific reference to the first step of the three step process referred to in Gyselman & Gyselman (supra), being a consideration of whether one of the grounds of departure has been established pursuant to section 117(2) of the Child Support (Assessment) Act 1989.
This failure to make specific reference to section 117(2) of the Child Support (Assessment) Act 1989 in this part of their Reasons does not however mean that this ground of the appeal is upheld as it is encumbent upon this court to look at the Tribunal’s Reasons as a whole to ascertain the basis upon which they determined the matters before it.
The manner in which this court is to review a determination of the SSAT was addressed by Halligan FM in the matter of LDME & JMA (SSAT Appeal) [2007] FMCAfam 712, where His Honour held at paragraph 34:
34.It is well settled that when reviewing an administrative decision for error, a court should not be “concerned with looseness in language nor with unhappy phrasing”, and “the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error” (Collector of Customs v Pozzolanic Enterprises Pty Ltd, above, at 287, cited with approval in Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ, and see the comments of Kirby J to similar effect at 291).
Therefore rather than confining itself to the two paragraphs in the Reasons of the Tribunal under the heading “What is an appropriate departure determination and for what period?”, the court can and should consider the Tribunal’s Reasons as a whole. When so considered it is clear that in respect to the two matters the appellant sought review of in the period 1 June 2006 to 8 February 2008, being [X]’s education expenses for 2006/2007 and the appellant’s medical expenses, the Tribunal did consider both matters for that time period in the context of the relevant provisions of section 117(2) of the Child Support (Assessment) Act 1989 and found that there were no grounds for departure under that section.
I am therefore satisfied that the Tribunal properly considered the matters upon which the appellant sought to review the determination of the level of child support payable between 1 June 2006 and
8 February 2008, and did so as is required in law.
Accordingly, I find that this Ground of Appeal is not established.
Ground 2 Did the SSAT err in law in failing to take into consideration material provided by the appellant in relation to her payment of a school exchange trip by [X] to France in December 2006?
This matter has been fully ventilated in paragraphs 117 to 122 of this judgment and it is not necessary to repeat them in detail again here.
Suffice it to say, I am satisfied that the Tribunal has properly addressed the cost of [X]’s school exchange in December 2006. Its’ finding that there was no ground for departure in relation to these expenses is a proper exercise of its discretion on this issue.
Accordingly, this Ground of Appeal is not established.
Ground 3 Did the SSAT err in law in failing to take into consideration material provided by the appellant which showed she paid [Y]’s school fees at [T] School in 2008/2009?
It was the appellant’s submission that the Tribunal erred in law in failing to take into account evidence she placed before it as to the school fees for [Y] in 2008/2009.
The appellant referred the court to the decision of Hadley & Hadley (SSAT Appeal) [2008] FMCAfam 1252 where Slack FM at paragraph 30 cited with approval the decision of Brown FM in Tasman & Tisdall [2008] FMCAfam 126 where His Honour at paragraph 44 held:
An Administrative Tribunal exceeds its powers and thus commits jurisdictional error, which is correctable on appeal in respect to the question of law, if it:
(i)fails to construe properly the legislative provisions applicable;
(ii)identifies the wrong issues or asks itself the wrong questions;
(iii) ignores relevant material or relies on irrelevant material;
(iv) fails to accord procedural fairness to the party before it;
(v)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.
It was the appellant’s argument that in failing to consider the evidence she placed before it as to her payment of [Y]’s school fees, the Tribunal ignored the clear evidence that she had paid those fees. She argued that in ignoring the relevant material it made an erroneous finding of such a magnitude that the Tribunal did err in law such that this court should correct their findings on appeal.
As previously noted, the Child Support Registrar did not appear at the hearing of the Appeal but, with the leave of the court, filed written submissions.
In its’ written submissions, the Child Support Registrar properly noted that the only right of appeal afforded the appellant is pursuant to section 110B of the Child Support (Registration and Collection) Act 1988 and is limited to an appeal “on a question of law”.
In paragraph 4 of its’ written submissions the Child Support Registrar argued:
4.An appeal "on a question of law", is more limited in scope than an appeal which involves a question of law: see Hussain v Minister for Foreign Affairs (2008) 169 FCR 241 at [31] per Weinberg, Bennett and Edmonds JJ and the authorities cited therein. Where an appeal lies on a question of law, the subject matter of the appeal is the question or questions of law. As the High Court of Australia said in Repatriation Commission v Owens (1996) 70 ALJR 904 at 904, this is so because sub-section 44(1) of the AAT Act, like the Registration and Collection Act, is concerned to ensure that the merits of the case are dealt with, not by this Court, but by the AAT, a "distribution of function [which] is critical to the correct operation of the administrative review process." For a party simply to assert that a tribunal has "erred in law" in making a particular finding is not to state a question of law (see Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 at [13]-[15] per Branson and Stone JJ); the particular question of law which is said to arise from the decision of a tribunal must be "stated with precision as a pure question of law." In LDME, Halligan FM echoed these observations:
The basis and focus of a section 110B appeal is a question of law. The appeal is not one in which findings of fact per se can be called into question (Comcare v Etheridge [2006] FCAFC 27 at [14] per Branson J, with whom Spender and Nicholson JJ agreed). The Grounds of Appeal called for in the Notice of Appeal in this Court assume the provisions of s 11OB. Thus, in my view the Grounds of Appeal to be set out in the Notice of Appeal should ideally be expressed in a way that enables the respondent and the Court to identify the question or questions of law sought to be raised by the appellant and the reasons why a finding for the appellant on that question or those questions should result in the orders sought in the Notice of Appeal being made.
The Child Support Registrar submitted that the appellant’s grounds of appeal are premised on a review of the evidence before the Tribunal and not on a question of law.
In respect to this ground of appeal and those relating to the respondent’s financial resources, the Child Support Registrar, in paragraphs 6 and 7 of its’ written submissions argued:
The Grounds of Appeal
Grounds 1, 3 and 4
6.It is the Registrar's submission that the Appellant's first, third and fourth grounds of appeal are seeking to call into question the SSAT's assessment and consideration of the evidence before it and asking this Court to review the decision of the SSAT rather than to answer stated questions of law. It is well-established law that whether a tribunal has failed to give proper consideration to the evidence before it, and whether the evidence before it was capable of supporting its conclusion, are not questions of law: see, for example, Hartnett v Migration Agents Registration Authority [2004] FCA 50 at [50] per Marshall J; Saxby Bridge at [152] per Jacobson and Bennett JJ; on the contrary, they are questions of fact. Thus, for the Court to question the SSAT's assessment of the evidence, and the weight given to it, would lead it to "trespass into the forbidden field of review on the merits": Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 391 per Mason CJ.
7.The Registrar submits that this is not a case whereby the SSAT's findings are unreasonable in the circumstances. The Registrar relies on the authority in Associated Provincial Picture Houses v Wednesbury Corporation, cited with approval in Re Bineshri Prasad v Minister of Immigration and Ethnic Affairs wherein Lord Green MR stated
It is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere... To prove a case of that kind would require something overwhelming.
The Registrar submits that it was open to the Tribunal to determine the education costs relating to the children and also the financial resources of the Respondent on the evidence before them.
In paragraphs 43 and 44 of their Reasons, the Tribunal stated:
43.The Tribunal found that the costs of attending the private school were greater than attending a government school. Ms Essex did not dispute Mr Essex’s evidence that he had been paying [Y]’s school fees since July 2007 and that, before then, the fees were paid out of a joint account. The Tribunal noted the only evidence of the actual fees was the statement issued to Mr Essex in 2007 (C1, folio 604).
Ms Essex’s contention was that the payment for [Y]’s education is being met through the trust funds and that this represents a financial advantage to Mr Essex (A9, folio 2). Ms Essex also submitted that since [Y] transferred to [F] School at the start of term 2 in 2009, she has met some costs incurred above basic tuition costs (A9, folio 7); Mr Essex also detailed various additional costs he had paid since March 2009 (B9, folio 9). [Y] did not start at [F] until after the child support periods currently under consideration, and the Tribunal did not further examine those costs.
44.As Ms Essex has not been responsible for meeting the costs of [Y]’s tuition in a private school, the Tribunal was not satisfied her costs of maintaining the child were significantly affected by the costs of the private education. The Tribunal concluded there were no special circumstances such as to warrant a departure under subparagraph 117(2)(b)(ii).
Whilst the Tribunal stated in their Reasons that both parties had told the Tribunal that [Y]’s school fees for [T] School had been met from the joint account to July 2007 and thereafter paid for by the respondent, it was the appellant’s case she had not agreed that the respondent had paid the [T] School fees after July 2007 and that it was she who had paid some, if not all of those fees.
In her submissions to the court at the hearing of the appeal, the appellant purported to identify the documents she said were before the Tribunal which supported her claim that she had paid [Y]’s school fees in 2008/2009. She did not have copies of those documents available for the court at that time.
As the Tribunal had viewed some 1100 pages of documents, and with a view to containing matters, at the conclusion of the hearing the appellant was requested to provide the court and the respondent with copies of those documents she relied upon in support of her submissions. The appellant subsequently complied with the direction for the provision of those documents.
The respondent, upon service of the documents advised the court that the documents provided by the appellant had not been before the Tribunal.
The court therefore arranged for the SSAT to provide copies of all documents that were before it in relation to the matter to the court.
A comparison of the documents provided by the appellant and the documents forwarded to the court by the SSAT in relation to the payment of school fees was such that the court is satisfied that the documents provided by the appellant to the court in relation to her alleged payment of some or all of [Y]’s school fees were not before the SSAT.
An appeal from the SSAT, as noted, is an appeal on a question of law and is not a review of its decision on its’ merits. Accordingly, the “additional” documentation provided by the appellant cannot and will not be considered by this court on appeal.
I am satisfied that the decision of the SSAT as to the payment of school fees for [Y] in 2008/2009 was open to the Tribunal on the evidence before it. Accordingly this Ground of Appeal is not established.
Ground 4 Did the SSAT err in law in failing to take into consideration evidence provided by the appellant of the respondent’s financial interests in the [S] Trust and of payments made to him by [W] Pty Ltd in their determination of his income, property and financial resources?
The appellant has consistently argued that the respondent receives income from and has a financial resource in the [S] Trust and has done so for many years.
The matter was first fully ventilated in a three day hearing on property matters at first instance in 2007 in the Family Court before Benjamin J. His Honour held that the respondent did not receive income from the Trust, nor was it a financial resource of the respondent.
The appellant appealed the decision of Benjamin J and, as previously noted, on 22 December 2009 the Full Court upheld the appellant’s appeal in that it found the [S] Trust was a “financial resource” of the respondent pursuant to section 75(2) of the Family Law Act 1975.
It was the appellant’s submission that the Tribunal erred in law in failing to take into account evidence she placed before it that substantiated her claim that the respondent received regular income and benefits from the Trust.
In particular, the appellant made reference to documents that she claimed evidenced unexplained deposits and payments from the husband’s bank accounts. She also referred to a loan document that supposedly evidenced a large capital payment from the Trust to the husband and argued that the husband had provided no proof of repayment of the loan to the Trust. She further argued that these documents, together with the reality that the Trust was now paying [Y]’s school fees, all supported her claim that the husband receives between $40,000.00 and $45,000.00 of income per annum from the Trust, as well as it being an ongoing financial resource for him.
The appellant submitted that the Tribunal and/or this court should have undertaken or should undertake a “complete audit” of the Trust in order to confirm the income and capital distributions to the husband.
The respondent agreed that he borrowed money from the Trust in order to make payment to the appellant pursuant to the orders of Benjamin J, and that such loan was properly evidenced by a loan agreement. Otherwise the respondent denied receiving any income from the Trusts, save for a small amount of $632.00 in 2006.
As set out earlier in this judgment, the Tribunal in paragraphs 88 to 102 of its’ Reasons addressed the appellant’s arguments and the evidence before it in relation to the respondent’s entitlements from and in the [S] Trust.
Having carefully examined the respondent’s bank accounts, it concluded that it was fully satisfied as to the respondent’s explanation for the funds coming into and out of his accounts and that such monies were not received by him from the Trust.
The Tribunal quoted extensively from the decision of the Full Court of the Family Court and concluded there was no further evidence before it which would cast doubt on the findings of the Full Court. Accordingly the Tribunal was satisfied that the Trust was a financial resource of the respondent and that he was likely to receive income from the Trust at the conclusion of the proceedings, a time after the period under review.
Thus the Tribunal found there was no evidence to support the appellant’s allegation that the respondent was receiving income from the Trust during the period under review.
As fully set out in relation to the previous ground of appeal, an appeal from the decision of the SSAT is “on a question of law”. It is not for this court to “re-examine the evidence before the Tribunal”, overturn the decision of the Full Court of the Family Court or for that matter, conduct an audit of the Trust books.
I am satisfied that the Tribunal properly considered all the evidence before it in relation to the Trust and the respondent’s receipt or otherwise of income/distributions from that Trust and that its’ decision that the respondent did not receive any income from the Trust in the relevant period of review was open to it on the evidence.
Accordingly this Ground of Appeal is not established.
Ground 5 Did the SSAT err in law in failing to take into consideration evidence provided by the appellant that the respondent used his company car for a greater percentage of non-work purposes?
The appellant argued that the Tribunal’s acceptance of the respondent’s evidence that his use of his company vehicle for private purposes had reduced from 33 per cent to five per cent with his change of employment in February 2008 was not open to it on the basis of the evidence she had placed before the Tribunal.
The appellant argued that she had placed before the Tribunal evidence from the RACV and NRMA that showed the fringe benefits to someone provided with a 4WD company car of the type provided to the respondent were approximately $15,000.00 per annum. She argued that as the respondent used this motor vehicle for all his private use, the full amount of $15,000.00 should have been attributed by the Tribunal to the benefit he received from having a company car.
In its’ Reasons, the Tribunal indicated that it accepted the respondent’s evidence that his usage of the company motor vehicle for private purposes had decreased from 33 per cent to five per cent with his change of employment as he was required to travel and work away from his home in [omitted] for most of the week.
The Tribunal decided to have regard to the finding of the Family Court in 2007 when it attributed the figure of $9,000.00 as the annual benefit to the respondent for the use of a company vehicle and at a time when his private use of that vehicle was 33 per cent. The Tribunal therefore found that a reduction in private usage from 33 per cent to five per cent would result in a reduction in the benefit to him from $9,000.00 to approximately $1,363.00 per annum.
In his evidence to the Tribunal, the respondent estimated the benefit to him of his company car at approximately $50.00 per week or $2,500.00 per year.
The Tribunal therefore concluded that:
“In the absence of any other evidence the Tribunal accepted
Mr Essex’s estimate that $2,500 per annum was a reasonable amount of the benefit available to him from his company vehicle.”
As previously set out in this judgment, an appeal from a decision of the SSAT to this court is on a question of law and is not a review on the merits. It is not for this court to re-examine the evidence before the Tribunal.
I am satisfied that the determination of the Tribunal as to the benefit to the respondent from his private use of a company motor vehicle was open to it on the evidence before it and accordingly this Ground of Appeal is not established.
Determination
Having determined that the appellant has not established that the SSAT erred in law in its’ determination of the matters before it, her appeal is dismissed.
I certify that the preceding one-hundred and seventy-six (176) paragraphs are a true copy of the reasons for judgment of Bender FM
Date: 31 October 2011
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