Farthing and Robinson and Anor
[2016] FCCA 2851
•8 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FARTHING & ROBINSON & ANOR | [2016] FCCA 2851 |
| Catchwords: CHILD SUPPORT – Appeal from a decision of the Social Security Administrative Tribunal – Appellant alleges Tribunal erred in its determination that the child was being educated in the manner that was expected by her parents (section 117(2)(b)(ii) of the Child Support (Assessment) Act 1989) – Appeal dismissed. |
| Legislation: Child Support (Assessment) Act 1989, ss.98S(1)(a),(c), 141(1)(h), 98C(1)(b)(ii)(A), 143, 117(2)(b)(ii), 117(2)(b)(ia) Child Support (Registration & Collection) Act 1988, s.110B |
| Cases cited: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR Beklar & Beklar [2013] FamCA 327 |
| Appellant: | MR FARTHING |
| First Respondent: | MS ROBINSON |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | MLC 8085 of 2010 |
| Judgment of: | Judge Bender |
| Hearing date: | 12 August 2016 |
| Date of Last Submission: | 12 August 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 8 November 2016 |
REPRESENTATION
| Counsel for the Appellant: | Mr Smith |
| Solicitors for the Appellant: | Gold Stone Family Lawyers |
| Counsel for the Respondent: | Self-Represented |
| Solicitors for the Respondent: | Not Applicable | |
| Counsel for the Second Respondent: | Mr Tran | |
| Solicitors for the Respondent: | Mills Oakley Lawyers |
ORDERS
The Amended Notice of Appeal (Child Support) filed 4 November 2015 be dismissed.
In the event the Second Respondent seeks an order that the Appellant pay its costs, by 4:00pm on 6 December 2016 the Second Respondent provide to the Court and the Appellant’s solicitors written submissions and a supporting affidavit on the question of costs.
Within fourteen days of receipt of the Second Respondent’s submissions on the question of costs, the Appellant provide to the Court and the Second Respondent’s solicitors answering submissions on the question of costs.
IT IS NOTED that publication of this judgment under the pseudonym Farthing & Robinson & 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 |
MLC 8085 of 2010
| MR FARTHING |
Appellant
And
| MS ROBINSON |
First Respondent
And
| CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
Appeal
This is an appeal from a decision of the Social Security Appeals Tribunal (“the Tribunal”) made 15 May 2015 and dispatched 26 May 2015.
The Tribunal set aside the decision under review and substituted a decision that:
·For the period 1 January 2015 to 31 December 2015, the annual rate payable by Mr Farthing is increased by $6,447.
·For the period 1 January 2016 to 31 December 2016, the annual rate payable by Mr Farthing is increased by $6,769.
·For the period 1 January 2017 to 31 December 2017, the annual rate payable by Mr Farthing is increased by $7,108.
The Appellant filed a Notice of Appeal on 19 June 2015. In the Notice of Appeal the Appellant sought the following orders:
1.That all arrears of child support be discharged.
2.Pursuant to section 98S(1)(c) of the Child Support (Assessment) Act 1989, for all relevant child support periods commencing 18 June 2013 to the date of this Order, the child support income of Ms Robinson be varied to be $250,000.
3.Pursuant to section 98S(1)(a) and 141 (1)(h) of the Child Support (Assessment) Act 1989, the annual rate of child support payable by the Appellant for all relevant child support periods commencing 18 June 2013 be re-calculated pursuant to an administrative assessment subject to paragraph 2 hereof.
4.Pursuant to section 143 of the Child Support (Assessment) Act 1989, the Appellant be entitled to recover any amount of child support paid between 18 June 2013 and the date of this Order in excess of the amount calculated pursuant to paragraph 3 hereof.
5.Such further or other Orders as the Court deems appropriate including with respect to costs.
In the Notice of Appeal the Appellant set out Grounds of Appeal which were subsequently replaced by an Amended Notice of Appeal filed 4 November 2015.
The Appellant’s Amended Grounds of Appeal are:
1. The Presiding Member erred in failing to have regard to the relevant consideration of the parties’ financial positions before finding that until s117(2)(b)(ii) of the Child Support (Assessment) Act 1989, that in the special circumstances of the case, the costs of maintaining the child were significantly affected.
2. The Presiding Member erred in failing to properly construe “the manner” of education in making her determination that a ground for departure existed under section 117(2)(b)(ii) of the Assessment Act.
3. The Presiding Member erred by failing to apply the correct legal test as to whether a ground for departure existed under section 117(2)(b)(ii) of the Assessment Act.
4. The Presiding Member erred by failing to have regard to relevant considerations going to whether the child was being educated in a manner expected by her parents as required by section 117(2)(b)(ii) of the Assessment Act.
In response to the Appellant’s Notice of Appeal the First Respondent filed a Notice of Appeal on 14 August 2015. The First Respondent filed a Notice of Discontinuance in relation to her Appeal on 31 May 2016.
Background
The Appellant and First Respondent commenced cohabitation in 2002, married on (omitted) 2002 and separated on 19 May 2010.
The Appellant and First Respondent are the parents of X born (omitted) 2002 (“X”). X lives with the Respondent. Despite final orders made on 18 November 2011 that X spend five nights a fortnight with the Appellant, she has not spent any time with him since August 2013.
On 27 August 2014 the First Respondent made application to the Child Support Registrar for a change of assessment on the basis of sections 117(2)(b)(ia) and 117(2)(b)(ii) of the Child Support Assessment Act 1989 (Cth) (“the Assessment Act”) based on X’s special needs and education.
A senior case officer refused to change the assessment on the basis a reason was not established.
The First Respondent sought a review of the decision of the senior case officer. On 4 December 2014 an objections officer made a departure determination in the following terms:
· For the period 1 January 2015 to 31 December 2015 the annual rate of child support is increased by $9,026.
· For the period 1 January 2016 to 31 December 2016 the annual rate of child support is increased by $9,477.
· For the period 1 January 2017 to 31 December 2017 the annual rate of child support is increased by $9,951.
· For the period 1 January 2018 to 31 December 2018 the annual rate of child support is increased by $10,449.
On 4 December 2014 the Appellant applied to the Tribunal for a review of that decision.
The Tribunal Decision
The Tribunal made its decision on 15 May 2015 and posted copies to the parties on 26 May 2015.
The Tribunal noted the primary issue between the parties is whether and to what extent the Appellant should contribute to X’s schooling costs.
In paragraph 8 of its decision, the Tribunal set out the “agreed” history of X’s education.
The Tribunal noted X attended (omitted) Primary School, a private (nationality omitted) school from prep, which was prior to separation and remained at that school until the end of Grade 6 in 2014, well after separation.
On 18 November 2011 the parties entered into final parenting and property consent orders in the Family Court of Australia. Order 18 of those orders provided “each party ensure the child attend scholarship examinations in relation to (omitted) School and (omitted) College.”
The enrolment form for X to attend (omitted) College was submitted in 2004. The First Respondent’s evidence is the Appellant signed that form. The Appellant denies signing the form and it is his evidence he only became aware of X’s enrolment at (omitted) College when the parties were in court after separation.
The Tribunal summarised the Appellant’s evidence to the Tribunal in paragraph (9) of its decision.
The Tribunal notes it was the Appellant’s evidence that the Respondent attempted to force him to allow her to send X to (omitted) College and that he had never agreed to that.
The Tribunal notes the Appellant says that the Judge hearing the parenting matters in 2011 suggested X sit scholarship exams for both schools that were in contention between the parties but there was no agreement reached between the parties that she would attend either school or private schooling generally.
The Tribunal notes the Applicant’s evidence in relation to an email he sent to the First Respondent in March 2014 that read “as far as I am concerned, X will continue to attend (omitted) School in 2015 and beyond.” It was the Appellant’s evidence that this email was sent in frustration and was not an indication the parties intended that X remain in the private school system regardless of which particular school she attended.
The Appellant was represented by his solicitor at the telephone hearing of the matter before the Tribunal. It was submitted by the Appellant’s representative that the Tribunal should infer from the 2011 consent orders that there was no agreement between the parties about X’s schooling and that the “manner that was expected” by the parties encompasses wider issues than simply public versus private schooling.
The Tribunal summarised the First Respondent’s evidence to the Tribunal in paragraph 10 of its decision. The Tribunal notes that the First Respondent’s evidence is that X attended a private (omitted) Kindergarten in 2006 and 2007 and commenced at (omitted) Primary School in 2008. The First Respondent’s evidence is this reflected the agreement between the parties that X would be educated in the (nationality omitted) system for her primary education.
The First Respondent disputed that the Appellant ever intended X to attend a public school. It was her evidence and that it was always the parties’ intention that X would attend either of (omitted) School or (omitted) College for her secondary education and they never discussed any other schools for X.
In paragraphs 11-14 of its decision, the Tribunal sets out the determination it made as follows:
11.The Tribunal notes that subparagraph 117(2)(b)(ii) refers to the past expectation of the parents rather an ‘agreement’, current or otherwise: see for example, F & S [2003] FMCAfam 531 per Bryant CFM (as Her Honour then was). The expectation required the Tribunal to consider the manner of education. The Tribunal needs to consider the type of education expected by both parents, rather any particular school intended by the parents: see Wild v Ballard (1997) FLC 92-771.
12. The Tribunal finds that X attended private kindergarten and a private primary school. The Tribunal finds that the parties’ expectation was that X would be educated in the private school system. Mr Farthing’s subsequent disagreement with the particular school in question does not, in the Tribunal’s view, change the past expectation of the parties as to the manner of schooling that X was to receive.
13. The Department found that X’s schooling costs for 2015 at $25,790. No issue was taken by the parties with this aspect of the decision and the Tribunal accepts this as correct. The Tribunal notes that the Department added 5% per annum to the fees, in the absence of clear evidence as to the increase in fees by (omitted) College. The Tribunal considers this appropriate in the absence of any evidence to the contrary.
14. The Tribunal finds that these amounts are significantly in excess of the ordinary costs of education of a child in the public school system. The Tribunal finds that special circumstances exist in relation to these costs which significantly affect the costs of maintaining X. The ground for departure is established made.
Having made a finding that the ground for departure was established, the Tribunal then considered whether it would be just and equitable to make a departure determination in accordance with sub-paragraphs 98C(1)(b)(ii)(A) of the Assessment Act. The Tribunal properly noted that this required them to consider a range of factors which are set out in sub-section 117(4) of the Assessment Act including the proper needs of X, the income, property and earning capacity of each of the parents, their necessary self-support expenses and the hardship caused to either of the parties or to X if the Tribunal were to make a departure determination.
In undertaking this task, the Tribunal considered the income and resources of each of the parties, the parties’ reasonable expenses and the costs of X’s education being $25,790 for 2015.
The Tribunal was satisfied that if it were to make a departure determination in this case there would be no hardship to either the Appellant or the First Respondent.
The Tribunal found at paragraph 21 as follows:
21. ….The Tribunal considers it is appropriate that Mr Farthing should contribute a proportion of the schooling costs given the Tribunal has found that it was the expectation of the parties that X be educated within the private school system.
In paragraph 22 of its decision the Tribunal held as follows:
22. The Department has considered it appropriate to increase the child support payable to Mr Farthing by 35% of the schooling costs. Taking into account each of the parties’ respective financial positions, the Tribunal considers it is appropriate that Mr Farthing contributes a quarter of the school fees for the next three school years. The Tribunal finds that it is appropriate that the departure determination cover the three school years commencing in the 2015 school year. Ending the departure determination from the end of the 2017 school year will allow for a reconsideration of the respective financial positions of the parents at that time.
The Tribunal then asked itself whether it was otherwise proper to make a particular departure determinations in accordance with subparagraph 98C(1)(b)(ii)(B) of the Assessment Act. The Tribunal found that the First Respondent was not in receipt of family tax benefit and therefore any change to child support payable would not impact on the cost to the community. The Tribunal therefore found that the making of a departure determination in this matter is otherwise proper.
The Tribunal decided to set aside the decision under review and substitute a decision that:
·For the period 1 January 2015 to 31 December 2015, the annual rate payable by Mr Farthing is increased by $6,447.
·For the period 1 January 2016 to 31 December 2016, the annual rate payable by Mr Farthing is increased by $6,769.
·For the period 1 January 2017 to 31 December 2017, the annual rate payable by Mr Farthing is increased by $7,108.
The Appellants’ Submissions
The Appellant prepared comprehensive written submissions. Mr Smith of Counsel appeared for the appellant and spoke to those submissions at the hearing on the 12 August 2016.
As to the Appellant’s first ground of appeal that the Tribunal erred in failing to have regard to the relevant consideration of the parties financial positions before making a finding under Section 117(2)(b)(ii) of the Assessment Act that in the special circumstances of the case the costs of maintaining the child were significantly affected, counsel for the Appellant submitted that the Tribunal was required to have considered the parties financial circumstances in order to decide whether the costs of maintaining the child were in fact significantly affected such as to give rise to special circumstances.
It is submitted on behalf of the Appellant that whilst the Tribunal made a finding at paragraph 13 of its decision as to the costs of X’s schooling at (omitted) College, it did not consider those costs in the context of the Mother having solely funded X’s primary school fees from 2012 to 2014, the Mother’s financial circumstances and whether X’s private school fees would significantly impact the Mother given her considerable income and the Father’s financial circumstances.
It was therefore submitted that the Tribunal failed to consider the impact of private school fees on the parties’ respective financial position and whether those costs would therefore significantly impact on their financial position.
It is therefore submitted on behalf of the Appellant that the Tribunal’s finding at paragraph 14 that X’s schooling costs are significantly in excess of the ordinary costs of education of a child in the public school system and therefore special circumstances exist in relation to those costs which significantly affect the costs of maintaining X amounts to an error of law as the Tribunal failed to consider a relevant consideration.
As to the Appellant’s second, third and fourth grounds of appeal, Counsel for the Appellant agreed that these three grounds of appeal were “all variations on the same theme,” being what Counsel termed “the manner of education”.
It is the Appellant’s submission that when considering section 117(2)(ii) of the Assessment Act, the decision maker must look to whether the child is being educated in the manner expected by his or her parents.
Counsel for the Appellant referred the Court to the decision of Beklar & Beklar [2013] FamCA 327 at paragraphs 247 and 248 where Ryan J held as follows:
“247. The s 117(2)(b)(ii) issue centred upon whether the wife was able to establish that the children’s attendance at these private fee paying schools was a style of education “in the manner that was expected” by the parties. The words “in the manner that was expected” do not require that she establishes that the parties agreed that the children attend these particular schools. Rather, it is the type or style of education that is relevant….
248. There is a great variety of private fee paying schools. The differences include a substantial dichotomy in fees, as well as the form of education that a child will receive. A party will be able to establish the ground if he or she can demonstrate agreement that the child receives an education of a particular type which includes agreement as to the costs that will be incurred…”
It is submitted on behalf of the Appellant that a Departure Order should only be made when parents share an expectation about how their child should be educated, even within the private school system.
It is further submitted on behalf of the Appellant that the finding by the Tribunal in paragraph 11 of its reasons that the case of Wild & Ballard (1997) FLC 92-771 stands for the proposition that there does not need to be agreement to a specific school but rather that it is only a particular type of school, is incorrect.
It is submitted on behalf of the Applicant that in Wild & Ballard (supra) the parties had consent arrangements in place via a Child Support Agreement which had been lodged in accordance with the then legislation with the Child Support Registrar.
That agreement provided in part that the Husband was to pay one half of all school fees incurred by the Wife in respect to the child’s attendance at a named private school or such other school as agreed between the parties or as determined by the Family Court of Australia.
Without the Husband’s input, the Wife enrolled the child at a school not named in the Child Support Agreement. The Wife instituted proceedings in the Family Court seeking orders that the Husband reimburse her for half the fees paid by her for the child’s education and that he continue to pay half of those fees going forward.
At first instance the Court ordered the Husband to pay the fees. The Husband appealed that decision. The first ground of the Husband’s appeal was the Tribunal erred in making orders he pay the fees as he was not consulted in respect of the school the Mother had enrolled the child in and because there was no evidence that the child’s welfare required her attendance at that school. He argued he therefore had no obligation to pay any school fees.
The Full Court held that absent any other relevant consideration, the Husband’s obligation to pay one half of the child’s school fees had already been determined by the child support agreement entered into by the parties. The Full Court found that this was not a case in which the issue of lack of agreement by the non-custodian to a private school education or the issue of whether the welfare of the child dictated she should attend such a school was at all relevant.
It is therefore the submission of the Counsel for the Appellant that the Full Court in Wild & Ballard (1997) FLC 92-771 was in essence enforcing the terms of the Child Support Agreement and the case does not stand for the proposition the parties do not need to agree to a specific school but only a type of school.
It is submitted on behalf of the Appellant that the Tribunal erred in limiting itself to a “binary proposition” of public education versus private education when determining the question of the parties’ expectation as to the manner of X’s education.
It is submitted on behalf of the Appellant that the case law clearly requires that in determining this question the decision maker must take a more nuanced approach than that which was taken by the Tribunal in this matter.
Counsel for the Appellant highlighted the particular differences in the manner of education provided by (omitted) School (which the presiding member found the Father agreed X could attend, albeit the Father disputes this) and (omitted) College which X actually attends. The differences between the two schools include (omitted) College is an all-girls school, (omitted) is co-educational, (omitted) College is a (omitted) College, (omitted) is a (omitted) School whose curriculum includes regular (omitted) Studies and (omitted) lessons and the difference of the fees payable at the two different schools.
It is submitted on behalf of the Appellant that whilst the Tribunal noted the submissions of the Appellant’s representative that the manner that was expected by the parties encompasses wider issues than simply public versus private schooling, the Tribunal took that evidence as showing the parties did not agree on a particular school, rather than as evidence that the parents did not share an expectation as to the manner in which the child should be educated.
It is therefore submitted by the Appellant that the Tribunal ignored relevant considerations when determining the question of the parties’ expectations as to the manner of education and thus fell into error.
Submissions on behalf of the Child Support Registrar
The Child Support Registrar (“the Registrar”) prepared comprehensive written submissions and was represented by Mr Tran of Counsel at the final hearing.
It is submission of the Registrar that appeals against a decision of the Social Security Administrative Tribunal under section 110B of the Child Support (Registration and Collection) Act 1988 (Cth) is limited to an appeal on a “question of law.”
In relation to the Appellant’s first ground of appeal it is submitted on behalf of the Registrar that this ground of appeal should be rejected.
In the written submissions the Registrar sets out the four bases for the rejection of the first ground of appeal.
Firstly, it is submitted by the Registrar that “the ground of failure to take into account a relevant consideration can only be made out if a decision maker fails to take into account a consideration which it is bound to take into account in making that decision, having regard to the subject matter, scope and purposes of the act” (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 and 40).
The Registrar submits that the specific failures argued by the Father are not relevant considerations under this section and that as a matter of construction these considerations are brought into the scheme of the Assessment Act by the mandatory considerations set out in section 117 (4).
Secondly, the Registrar submits that the Tribunal clearly took into account the Mother and Father’s financial circumstances at paragraphs 18 and 19 of its reasons, albeit in the context of determining whether it was just and equitable to make a departure determination.
It is submitted that even if the requirement to consider the parties financial positions was a mandatory component of section 117(2)(b)(ii) of the Assessment Act, reading the Tribunals reasons as a whole show that the Tribunal took them into account.
Thirdly, it is submitted by the Registrar that the failures which the Father alleges, such as the Mother having paid X’s last four years of primary school fees, are of a granular nature only and are so case specific that they are not matters which the Tribunal was bound to take into account in every case when determining whether a ground of departure is made out at this stage.
It is further submitted that this granularity belies the true nature of this ground of appeal which is at bottom an invitation by the Father for this Court to engage in and impermissible merits review.
Fourthly, it is argued by the Registrar that requiring the Tribunal to consider the effect of schooling costs on the parents in order to establish the ground of departure would result in the Tribunal having to be satisfied not only as to the costs of educating the child but also the finances of each respective parent at this stage of the analysis. It is submitted that because the financial capacity of each parent is relevant to other grounds of departure, to accept these submissions is tantamount to requiring the Tribunal to be satisfied of multiple grounds of departure. It is submitted that this would be contrary to the proposition that “an application for departure need only establish one ground of departure.”
In response to the oral submissions of Counsel for the Appellant that in relation to this ground of appeal it was incumbent upon the Tribunal to consider the “proportionality” of the parties financial positions when considering whether the costs of maintaining the child were significantly affected, Counsel for the Registrar made reference to the decision of Mabry & Mabry & Anor (SSAT Appeal) [2010] FMCAfam 388. Federal Magistrate Riethmuller, as he then was, held at paragraph 80 as follows:
80. Whether the fees can be met (and the proportions in which the parents must contribute) must be determined having regard to the parties actual financial positions, is a matter to consider under “just and equitable.”
In relation to the Appellant’s second ground of appeal, it is submitted on behalf of the Registrar that in focusing on whether there was an expectation that X will be educated in the private school system rather than in the public school system the Tribunal made no explicit or implicit misconstruction of section 117(2)(b)(i) of the Assessment Act.
It is submitted on behalf of the Registrar that it is well established that section 117(2)(b)(i) and its reference to “the manner of education” is largely, but not entirely, directed to the question of the costs of private school fees versus public school fees. It is submitted that this is not unsurprising as the question of whether a school is public or private is likely to be determinative of the overall cost of a child’s education and it is the expectation about the likely cost of future education which is the touchstone of the provision.
In the Registrar’s written submissions the following reasons were set out as the basis as to why the second ground of the Appellant’s appeal should not be accepted:
35. First, it would be inconsistent with the established principle that there need not be agreement or a common expectation about any particular school to require there to be, as the father contends, a common expectation as to “all the ways by which the education is [to be] delivered”. If every single feature of a child’s possible education is to be of equally determinative significance in every case, it would necessarily follow that the parents would ultimately have to expect or agree upon a particular school before a decision-maker could conclude that this reason for departure was established.
36. Secondly, it may be accepted that other features of a child’s proposed education may be particularly important in a specific case. For example, the religious quality of the proposed education may be salient. That does not deny that, in some other case (and, as the reported cases reveal, the great run of cases), whether public or private education was expected may properly be the focus of a decision-maker’s decision. The SSAT has not explicitly or implicitly misconstrued the statute by proceeding on the factual finding that, whatever else the disagreement, there was a common expectation that the child would be educated in private schooling.
37. Thirdly, the father’s contentions may proceed from an unarticulated premise that the SSAT failed to consider other aspects of the child’s possible education in fixing ultimately upon a common expectation that she educated in private schooling. That premise is flawed. The SSAT clearly adverted to the father’s contentions on this point. That the SSAT determined that the salient feature for its purposes was the common expectation that the child would attend a private school is not to ignore the father’s contentions about the range of other factors relevant in choosing a school.
38. Fourthly, the father’s contentions at bottom appear to be tantamount to a disagreement with the SSAT’s factual finding that there was a common expectation that the child would attend private school. That finding was clearly open to the SSAT, and the father cannot therefore disturb that factual finding. As Judge Scarlett has observed, in terms which may be adopted in the present context, this ground:
is clearly a challenge to the merits of the Tribunal decision. There was evidence before the Tribunal to support its finding that the parties had agreed that the children should educated at private schools. It does not matter that there was other evidence to the contrary. The Tribunal was entitled to come to the decision it did based on the evidence.
In respect to the Appellant’s third ground of appeal it is submitted on behalf of the Registrar that this ground of appeal is nothing more than a rearticulation of ground two and for the reasons argued in relation to ground two, this ground should be rejected.
In relation to the Appellant’s fourth ground of appeal, it is submitted on behalf of the Registrar that as with the third ground of the appeal this fourth ground is largely a rearticulation of ground two and that for the reasons given with respect to the second ground, this ground should be rejected.
It is further submitted on behalf of the Registrar that if the fourth ground of appeal does raise further issues, it makes two additional errors.
Firstly, it is submitted that it is plainly inviting a challenge to the Tribunal’s finding of fact that there was a common expectation as to X’s manner of education. It is submitted the Court only has jurisdiction to determine an appeal on a question of law and the factual matters which the Father agitates in his submissions give rise to no question of law. It is submitted that the Tribunals finding was plainly open to it.
Secondly, it is submitted on behalf of the Registrar that this ground of appeal mistakes the principles to be applied in concluding that a decision maker has failed to take into account a relevant consideration. As was submitted by the Registrar in relation to the Appellant’s first ground of appeal, this argument only applies to matters which, as a matter of statutory construction, the decision maker is bound to take into account. It is submitted that the Appellant inappropriately and incorrectly seeks to invoke this doctrine as a vehicle to engage in a dispute about the Tribunals factual findings in circumstances where this appeal must be limited to questions of law.
The First Respondent
The First Respondent did not prepare any written submissions. She made oral submissions at the final hearing, albeit they were not necessarily directed to questions of law but rather matters of dispute between the parties or of relevance to her.
The First Respondent’s submissions can be summarised as follows:
·The Appellant has not spent time with X since August 2013.
·Every maternal female relative of X’s, including her grandmother, aunts and cousins have all attended (omitted) College.
·When the Mother was fifteen weeks pregnant the parties knew that she was expecting a girl. She and the Appellant agreed that their girl child would attend (omitted) School for her primary education and (omitted) College for her secondary education. They submitted an application to (omitted) College in 2004 accordingly.
·Why would the Appellant consent to an order that X sit a scholarship exam for (omitted) College if he was not open to her attending that school?
·The Appellant’s son from a previous relationship attended (omitted) School from year 7 to year 10 showing the Appellant does not expect his children to attend a (nationality omitted) school for their secondary education.
·(omitted) school fees are slightly higher than (omitted) College fees.
·The First Respondent’s mother pre-paid X’s school fees for the last four years of her primary education at (omitted) prior to there being orders made for the Mother to pay these fees. Whilst the Mother consented to an order she pays those fees she did so in the knowledge they had been paid by her Mother. Accordingly, those fees were not paid by her.
Conclusion
As was submitted by Counsel for the Registrar, a decision of the Tribunal can be appealed on a question of law only (Child Support (Registration and Collection) Act 1988 (Cth) section 110B).
In Tasman & Tisdal (SSAT Appeal) [2010] FMCAFam 425, Federal Magistrate Brown as he then was, held that an administrative Tribunal exceeds its powers and thus commits a jurisdictional error in respect to the question of law if it:
a)Fails to construe properly the legislative provisions applicable;
b)Identifies the wrong issues or asks itself the wrong questions;
c)Ignores relevant material or relies irrelevant material;
d)Fails to accord procedural fairness to the party before it; or
e)Makes an erroneous finding of such magnitude that it goes to the very jurisdiction which it purports to exercise rendering its decision perverse or unreasonable or otherwise offending logic.
The Appellant relies on four grounds of appeal. I will deal with the grounds in order.
Ground One: The Presiding Member erred in failing to have regard to the relevant consideration of the parties’ financial positions before finding that until s117(2)(b)(ii) of the Child Support (Assessment) Act 1989, that in the special circumstances of the case, the costs of maintaining the child were significantly affected.
It is the submission of the Appellant that the Tribunal was required to consider the parties financial positions in considering whether the costs of maintaining the child were significantly affected.
The thrust of the Appellant’s argument is that it was incumbent on the Tribunal at this early stage to consider the respective financial circumstances of the parties in order to ascertain whether the payment of school fees would have a significant impact on them in the context of maintaining the child.
In paragraph 13 of the Tribunal’s decision, it confirms the finding of the department that X’s schooling cost for 2015 are $25,790 and that the Tribunal nominally increased those fees by five per cent for each subsequent year in the absence of clear evidence as to the actual increase in fees by (omitted) College in those periods.
In paragraph 14 the Tribunal found these amounts to be significantly in excess of the ordinary costs of education of the child in the public school system and was accordingly satisfied that in the special circumstances of the case those additional costs would significantly affect the cost of maintaining X.
Whilst there will be matters where the financial circumstances of the parties will be relevant to determining whether special circumstances exist, I reject the submission of the Appellant that a consideration of the parties financial position is a mandatory requirement for the determination of this issue at this stage.
Further, in paragraphs 18 and 19 of its decision, albeit under the heading “Is it just and equitable to make a departure determination,” the Tribunal clearly considered the parties’ financial circumstances. It is apparent that this was a matter taken into account by the Tribunal in its overall determination of whether there should be a Departure Order made.
The manner in which this Court is to review a determination of the Tribunal was addressed by Halligan FM in the matter of LDME & JMA (SSAT Appeal) [2007] FMCAfam 712. 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).
When determining whether a ground of appeal should be upheld the Court should look at the Tribunal’s reasons as a whole. It is apparent when this is done, the Tribunal did look at the parties’ financial circumstances in making its determination.
In these circumstances, I am satisfied there has been no error of law by the Tribunal and ground one of the appeal fails.
Ground Two: The Presiding Member erred in failing to properly construe “the manner” of education in making her determination that a ground for departure existed under section 117(2)(b)(ii) of the Assessment Act.
Ground Three: The Presiding Member erred by failing to apply the correct legal test as to whether a ground for departure existed under section 117(2)(b)(ii) of the Assessment Act.
Ground Four: The Presiding Member erred by failing to have regard to relevant considerations going to whether the child was being educated in a manner expected by her parents as required by section 117(2)(b)(ii) of the Assessment Act.
It was submitted on behalf of the Registrar and not demurred to by the Appellant, that these three grounds are effectively one in the same. Accordingly, they will be considered as a group.
It is submitted on behalf of the Appellant that the Tribunal erred in its proper consideration of the question as to whether X was being educated “in the manner that was expected by his or her parents.”
It is the submission of the Appellant that to determine the manner of education expected by the parents, the type or style of education is relevant and that requires a nuanced approached based on the particular facts of the case.
It is the Appellant’s submission that the Tribunal erred when it limited its enquiry on this issue to a question of whether the parties expectations of X’s education was whether she be educated in a private school or the state system. It is the Appellant’s submission this case required a more nuanced approach as factors such as whether the school was coeducational or same-sex, (nationality omitted) or (omitted) and the level of costs of the schools in question needed to be considered in order to determine whether X was being educated in the manner expected by the parties.
It is argued on behalf of the Registrar that whilst there are matters where the manner of education expected by the parents is such that there is an expectation of a single particular school, an expectation of a school of a particular religious type, an expectation of a school within a particular fee range or that a school be same-sex or coeducational, in the vast majority of cases the determinative factor is whether the school is in the private system or in the state system primarily because of the disparity in the cost of education in those two systems.
It is submitted on behalf of the Registrar that there is considerable case law that the parties do not need to be in agreement that their child attend a particular school in order for there to be a finding that there was an expectation as to the manner of education.
In this matter it is clear the parties were not in agreement as to which particular school X was to attend for her secondary education. On the evidence available to it, it was open to the Tribunal to find the Father preferred X attend (omitted) School and the Mother preferred (omitted) College for her secondary education.
The Registrar submits in those circumstances it was open to the Tribunal to confine its consideration to the question of private school versus state school and to make a finding of fact that the parties had an expectation that X would be educated in the private system for her secondary education.
I am in complete agreement with the submissions of the Appellant that the question of the parties’ expectations as to the manner in which a child is to be educated is determined on the particular facts of each case.
There will be matters where the parties’ expectations will be a question of private versus state education, a question of a religious school versus secular school, a question of a named particular school or a question of private schools at different ends of the fee scale.
In this matter, the Tribunal focused primarily on the question of private school versus state school as being central to the question of the expectation of the parties as to X’s education.
That the Tribunal was aware that the Father raised matters other than private school versus public school is clearly set out in paragraph 9 of the Tribunal’s decision where it states the Appellant’s representatives submitted to the Tribunal… “that the manner that was expected by the party encompasses wider issues than simply public versus private schooling.”
In paragraph (9) of the Tribunal’s decision it notes the Appellant disputed that the parties intended X to remain in the private school system, regardless of which school she attended. They note that the Appellant asserted there were government schools in the area that could have been considered.
The Tribunal was therefore satisfied on the evidence before it that the matter central to the dispute between the parties as to their expectation of the manner in which X was to be educated was whether that education should be in the private or public system, rather than whether the school be co-ed or single sex or (nationality omitted) or (omitted).
Further, when considering the thrust of the Appellant’s arguments as to why the Tribunal erred in its determination as to the parties’ expectation of the manner of X’s education, it is not argued that the Appellant did not want X educated in the private system, but rather his expectation was she be educated in a (nationality omitted), co-educational school.
This argument however is not supported by the consent orders entered into the by both parties in the Family Court of Australia in 2011 which provided for X to sit scholarship exams for both (omitted) School and (omitted) College. If the Appellant had not considered (omitted) College as a suitable school for X it is difficult to understand why he would consent to an order that would possibly lead to her attendance at that school.
Accordingly, I am satisfied that the Tribunal has not erred in confining its consideration of the question of the manner of the education expected by the parties to the question of public school versus private school and that its finding of there being an expectation of the parties that X attend private school was open to it on the facts before it.
In those circumstances no appealable error has been found and grounds 2 to 4 of the Notice of Appeal are dismissed.
Orders
All of the Appellant’s grounds have been unsuccessful. The appeal is dismissed and the decision of the Social Security Appeals Tribunal is affirmed.
The Child Support Registrar seeks an Order that the appeal should be dismissed and that the Appellant pay the Second Respondent’s costs of the appeal.
In those circumstances any party wishing to pursue an order for costs may do so by way of a written submission accompanied by an affidavit setting out the way in which the amount of costs sought is quantified.
Rule 21.02 of the Federal Circuit Court Rules 2001 (Cth) prescribes that an application for costs may be made;
a)at any stage in a proceeding;
b)within 28 days after a final decree or order is made; or
c)within any further time allowed by the Court.
Any written submissions and supporting affidavits seeking costs should be filed and served within 28 days.
Any submission in reply should be filed and served within a further period of fourteen days.
I certify that the preceding one hundred twelve (112) paragraphs are a true copy of the reasons for judgment of Judge Bender
Date: 8 November 2016
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