Forbes & Bream
[2010] FamCAFC 6
•29 January 2010
FAMILY COURT OF AUSTRALIA
| FORBES & BREAM | [2010] FamCAFC 6 |
| FAMILY LAW - APPEAL – CHILD SUPPORT – Leave to appeal decision of Federal Magistrate under Child Support (Assessment) Act 1989 (Cth) – whether the Federal Magistrate erred in finding that the father’s child support assessment should be based on his actual income and financial position not on any potential earning capacity – whether the Federal Magistrate failed to consider the financial impact of the children living with the father at the time of hearing –whether the Federal Magistrate erred in failing to make findings as to the father’s income during the relevant periods – whether the Federal Magistrate failed to provide procedural fairness to the father by not explaining the law to be applied – no merit in any grounds of appeal – application for leave to appeal dismissed. |
| Child Support (Assessment) Act 1989 (Cth), ss 117(2)(a)(iii)(A), 117(2)(c)(ia), 117(2)(c)(ib), 117(7A), 117(7B) |
| Bassingthwaite & Leane (1993) FLC 92-410 |
| APPELLANT: | Mr Forbes |
| RESPONDENT: | Ms Bream |
| FILE NUMBER: | SYM | 3453 | of | 2006 |
| APPEAL NUMBER: | EA | 90 | of | 2007 |
| DATE DELIVERED: | 29 January 2010 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Bryant CJ, Boland & Stevenson JJ |
| HEARING DATE: | 2 December 2008 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 18 July 2007 |
| LOWER COURT MNC: | [2007] FMCAfam 483 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Forbes appeared in person |
| SOLICITOR FOR THE APPELLANT: | Mr John Flanagan acted as a “McKenzie friend” |
| COUNSEL FOR THE RESPONDENT: | Ms Bream appeared in person via telephone |
Orders
That the father’s application for leave to appeal filed 17 September 2007 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Forbes & Bream is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 90 of 2007
File Number: SYM 3453 of 2006
| Mr Forbes |
Appellant
And
| Ms Bream |
Respondent
REASONS FOR JUDGMENT
The application before the Court is by Mr Forbes (“the father”) for leave to appeal orders of Sexton FM made on 18 July 2007 and, if leave is granted, to appeal those orders. The orders in essence dismissed the father’s application to depart from an administrative assessment of child support. Section 102A of the Child Support (Assessment) Act 1989 (Cth) (“the Act”) provides that an appeal lies to the Family Court only if this Court grants leave to appeal.
The Full Court has already determined part of this appeal in a judgment delivered 1 December 2008 (Forbes & Bream [2008] FamCAFC 189). There were two issues before the Full Court which, for reasons set out in our previous judgment, were dealt with as preliminary matters. One of those matters was whether the Court should supply the transcript at its expense to the father. The second was one of the grounds of appeal which did not depend upon the provision of the transcript. That particular ground argued that the Federal Magistrate had fallen into an appealable error of law. The judgment dealt with the asserted error of law and we were satisfied that the father had not established that there was an error of law and thus leave to appeal on ground “u.” of the father’s Notice of Appeal was refused.
The father sought special leave from the High Court to appeal the Full Court’s decision but leave was refused.
As the previous judgment noted, the failure of the father to obtain leave to appeal on ground “u.” of his Notice of Appeal necessitated a consideration of:
a)whether determination of the remaining grounds of appeal required provision of the transcript of the proceedings before Sexton FM; and
b)if so, whether the father should bear the cost of the provision of the transcript, or whether the transcript may be obtained at the Court’s expense.
The Full Court determined that although rules 22.23 and 22.24 of the Family Law Rules 2004 (“the Rules”) place an obligation on the appellant (or cross-appellant) to provide the transcript for insertion in the appeal book, the Court may dispense with the application of the Rules if warranted in a particular case. The Court held that, if the interests of justice require it, and the appellant or cross-appellant seeking it cannot afford the cost of the transcript, the Court may in the exercise of its discretion agree to provide the transcript of relevant parts to enable the appeal to proceed.
On the exercise of that discretion the Full Court found that the father had not, either in his written or oral submissions, advanced any persuasive evidence or argument that he could not afford to procure the transcript himself. Accordingly, the Court did not accede to his application for the transcript to be provided at the Court’s expense. On 9 September 2008 the Court made the following orders:
(1)That leave to appeal on ground (u) of the Appellant’s amended draft Notice of Appeal is refused.
(2)That the balance of the appeal be stood over to a date to be advised by the Appeals Registrar in late November or early December.
(3)That any transcript the Appellant wishes to rely upon at that adjourned hearing be filed and served on the Respondent by 3 November 2008.
At the time the appeal came before us the father had not complied with our orders that he provide the transcript.
Background
The father and the mother are the parents of five children, the eldest of whom, E, was over the age of 18 at the time of the Federal Magistrate’s decision. The remaining four children, J, S, R and L, were aged 17, 16, 13 and 10 respectively. The 16 year old child S has lived with the father since September 2006 and the other three relevant children lived with the mother.
Prior to the child support litigation the parents had been involved in litigation arising from the breakdown of their marriage, both in relation to parenting and property. Interim parenting orders were initially made in the Family Court on 29 May 1998 and final parenting orders were made on 12 November 2003. Those orders provided for the children to live with the mother and spend regular time with the father. In January 2006 further orders were made by the Family Court in relation to schooling for the youngest two children. Property orders were made in October 2000.
At the time of the hearing the father was 52 years of age and the mother was 44 years of age. The parties married in 1986, separated in 1997 and were divorced in 2000.
The Federal Magistrate noted that the mother had remarried and that neither party was in paid employment. The father had described himself as a “teacher” in his application although he had not worked as a teacher since 2003. The mother was a mature-age student.
Child support litigation
The Child Support Scheme, involving the application of the Family Law Act 1975 (Cth), the Child Support (Registration and Collection) Act 1988 (Cth) and the Child Support (Assessment) Act 1989 (Cth) provides that upon application, and the establishment of qualifying criteria, the Child Support Agency (“CSA”) will assess the amount of child support payable by a liable parent to an eligible carer in a particular period by reference to taxable income. If either the parent or carer wishes to challenge that assessment they may do so on specified grounds in an administrative application determined by a Child Support Case Officer. If unhappy with that determination, the law as it then stood provided for an application to be made to either the Family Court or Federal Magistrates Court seeking a departure from the administrative assessment pursuant to s 117 of the Act. Since 1 January 2007 the only avenue for appeal from the decision of the CSA is to the Social Security Appeals Tribunal.
The genesis of the present litigation was an assessment by a Senior Case Officer of the CSA on 17 May 2002 that the father pay child support of $12,000 per annum for the period 1 May 2002 to 31 December 2003 (“the first assessment period”) on the basis that he had an earning capacity of $50,000 per annum. The assessment was made as a result of the mother filing a Change of Assessment Application after receiving notification of the father’s initial assessment which was based on a considerably lower income figure.
In September 2005 the father commenced proceedings in the Family Court seeking a departure from the administrative assessment of child support for the first assessment period. Before his application had been heard, a further assessment of child support had been issued by the CSA for a subsequent period based on the father’s taxable income, which resulted in an assessment of $260 per annum.
The mother filed another Change of Assessment Application and the father was assessed to pay child support by a Senior Case Officer on the basis of a child support income of $40,000 per annum for the period 1 February 2006 to 31 December 2006 (“the second assessment period”). This income calculation was based on the father’s earning capacity as opposed to his actual income disclosed.
As a result the father amended his original application to include the second assessment period in his application for a departure order.
The father did not make the payments required of him and as at 28 February 2006 he had child support arrears of $27,199.98 and informed the Federal Magistrate at the trial that he was paying $10 per fortnight towards those arrears.
On 15 August 2006 the operation of the child support assessment for the first assessment was stayed pending determination of these proceedings.
The Federal Magistrate noted that neither party adduced evidence from the CSA as to the father’s child support arrears at the date of the hearing; although the mother said the balance was just under $27,000.
Thus at the hearing before the Federal Magistrate the father sought a departure from the child support assessment for the two periods:
a)1 May 2002 to 31 December 2003 (during which time he was required to pay child support of $12,000 per annum based on an income earning capacity of $50,000 per annum); and
b)1 February 2006 to 31 December 2006 (during which period his earning capacity was assessed at $40,000 per annum).
The father sought that the assessments for the two periods be based upon his taxable income as disclosed in his tax returns, for outstanding arrears to be discharged and for the school fees he paid for the children to be “taken into account”.
At the hearing before the Federal Magistrate he modified his position slightly and asked the Court to disregard any school fees he might have paid.
At the trial before the Federal Magistrate the mother opposed the father’s applications and submitted that the father chose not to earn an income, to the extent of his capacity to do so, and chose not to derive other income from his assets despite the opportunity to do so.
Neither party was represented before the Federal Magistrate and nor have they subsequently been represented before the Full Court, although we allowed the father to have a McKenzie friend to assist him.
The decision of the Federal Magistrate
The Federal Magistrate set out the relevant law in proceedings for child support which has not been the subject of challenge, save for the matter referred to in paragraph 2 of these reasons which was dealt with in the judgment of the Full Court delivered on 1 December 2008 (Forbes & Bream (supra)).
The Federal Magistrate set out the objects of the Act and noted that in particular the principal object of the Act is to ensure that children receive a proper level of financial support from their parents. In particular, the Federal Magistrate noted that ss 114 and 121 identify that the further objects to Divisions 4 and 5 of Part 7 include ensuring:
a) that the children have their proper needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of both of their parents; and
b) that parents share equitably in the support of their children.
The Federal Magistrate described the provisions relating to a departure from administrative assessment as set out in Division 4 of Part 7 and referred to in Gyselman and Gyselman (1992) FLC 92-279, which set out a three step process to be followed in determining an application for a departure order under s 117. The first step is whether one or more of the threshold grounds in s 117(2) is established and if so the next step is whether it is just and equitable within the meaning of s 117(4) to make a particular order. The final consideration is whether it is otherwise proper within the meaning of s 117(5) to make a particular order.
The Federal Magistrate also noted that it is necessary to undertake the three stage process for each child support year in respect of which a departure is sought (Hides & Hatton (1997) FLC 92-759). Except as noted above, no challenge was made to the Federal Magistrate’s description of the law to be applied.
Father’s grounds for departure
In order to deal with the various grounds of this appeal it is necessary to record the issues before the Child Support Case Officer, and subsequently, the Federal Magistrate. In short, the father had argued before the Child Support Case Officer and the Federal Magistrate that child support should be based upon his taxable income as disclosed in his tax returns for the relevant periods. The mother had challenged that and her challenge had been successful before the Child Support Case Officer. The mother asserted that the child support as assessed on the father’s taxable income did not adequately take into account his income, earning capacity, property and financial resources.
In particular, she asserted that for the first assessment period the rate of child support should be increased in recognition of the fact that the father:
a)earned an income from the agistment of horses on his property;
b)owned a farm at M which was in the process of being sub-divided;
c)received rent of $160 per week from an investment property; and
d)worked as a full-time employee for his brother.
The Child Support Case Officer noted the father’s teaching career and made the following relevant comments:
a)The father resigned from his position as Principal of [a Christian College] at the end of 1997 because he found it impossible to remain at the same school as the children after the parents’ separation.
b)He was working for his brother or was unemployed from the end of 1997 to the start of 1999 when he was employed as the Foundation Principal of a small Christian school in [V].
c)Having been, he said, approached to take up this position, he did not apply for the position of Principal of the school when it was advertised at the end of 1999, saying it was too remote from the children’s home.
d)He subsequently applied for and was offered the position of Teaching Principal at [a Community School] and took up that position at the start of 2000.
e)He said he was unhappy with the after-school care arrangements for the children and that disputes over contact following the child support assessment led him to resign from his three year contract with the [Community School] at the end of term 4 in 2000.
f)He has not worked as a teacher since that time.
The Child Support Case Officer concluded that the father was highly regarded within his profession and had enjoyed a considerable reputation. Further, the father had been able to obtain work as a Principal on two occasions since ceasing work at the Christian College and he thus concluded that the father had the capacity to find work as a teacher. He concluded that the father had chosen not to exercise his earning capacity as a teacher and he was thus not satisfied that an income (as disclosed in his tax return) of $12,774 served as a proper assessment of the father’s earning potential. Consequently, for the first assessment period he set child support at a rate of $12,000 based on an earning capacity of $50,000 per annum.
For the second assessment period the mother sought that child support be increased to $12,000 from 1 July 2005 through until the youngest child turned 18 years of age. For largely the same reasons, the Child Support Case Officer concluded that the father had a capacity to earn an annual income of about $40,000 securing casual teaching positions and had an earning capacity that he was choosing not to exercise.
The Child Support Case Officer also found that the father resided in a property estimated to be worth $800,000 and that he claimed there was a loan on the property exceeding $1 million. This loan, the father claimed, was due to someone else having loaned him the funds to pay out the mother following their property settlement. The Child Support Case Officer noted that that there was no supporting documentation regarding the alleged $1 million loan. Consequently, for the second assessment period and in particular from 1 February 2006 to 31 December 2006 the Child Support Case Officer fixed the father’s child support income amount at $40,000 for the purposes of calculating his child support liability.
It was from those assessments that the father made application to the Federal Magistrates Court seeking orders for departure from the assessments. Noting that the father was unsure as to which sub-sections of s 117(2) of the Act he relied upon, the Federal Magistrate explained that the father’s case was essentially that his child support assessment should be based on his actual income and financial position during both assessment periods and not on any potential earning capacity. The Federal Magistrate noted that, having regard to how the father’s case was brought, it was clear that his case was based upon his income and financial resources – s 117(2)(c)(ia) – and that the mother brought her case for dismissal of the father’s application on the basis of his earning capacity – s 117(2)(c)(ib). These sub-sections provide:
…
(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:
…(ia)because of the income, property and financial resources of either parent; or
(ib)because of the earning capacity of either parent …
The Federal Magistrate noted that the Court would not interfere with the administrative assessment unless it was satisfied that there were “special circumstances” and that the onus was on the applicant to establish grounds for departure.
In summary, in dismissing the application, the Federal Magistrate found that the father had failed to adduce adequate evidence of his financial circumstances, his actual employment or his employment opportunities during either of the assessment periods in which he sought a departure order. The Federal Magistrate found that the father had made sweeping assertions that were rarely supported by verifying evidence, when such evidence should have been available to him. Federal Magistrate Sexton found that much of his affidavit material concerned grievances with the CSA and was irrelevant to the issues to be determined. The Federal Magistrate noted, for her part, that the mother adduced no evidence as to the quantum of the father’s earning capacity during the relevant periods.
The appeal
Section 102 of the Act provides that no appeal can be brought against an order made under that Act without the appeal court giving the appellant leave to appeal. In this matter we have dealt with the application for leave together with the appeal.
Generally, before permission to appeal will be granted, it must be demonstrated that there has been an error of principle in the making of the order sought to be appealed or that the order will result in substantial injustice. However, in relation to child support orders, it is inevitable that such orders will affect the financial position of the parties and this is a relevant matter in taking into account whether to grant permission to appeal (see Van de Berg &Van de Berg [2009] FamCAFC 112, Wild v Ballard (1997) FLC 92-771, Gilmore and Gilmore (1995) FLC 92-591 and Bassingthwaite & Leane (1993) FLC 92-410)
The father asserted that there was a substantial prospect of success and that at the time of the appeal he remained in receipt of a carer’s pension and he asserted that the mother was employed. The father asserted that the balance of convenience supported him being granted leave.
The father’s grounds are lengthy and discursive and virtually reproduced his amended summary of argument. They can be summarised as falling under the following headings:
a)Factual errors.
b)Erroneous findings.
c)Errors of law.
d)Failing to provide procedural fairness.
Factual errors and erroneous findings
It is difficult to entirely distinguish between these two categories so we will deal with the grounds of appeal that appear to relate to these two categories together.
Appeal Ground A
The first complaint by the father is that the Federal Magistrate noted that of the five children E “is now over the age of 18 years”. The father contents that E was under the age of 18 and still at school and living with him during the second assessment period. He concedes the Federal Magistrate noted that S “has lived with the father since September 2006” but seems to be contending that the Federal Magistrate did not take account of the fact that S was living with him at the time of hearing, and that E lived with him during the second assessment period.
This ground seems to be factually misconceived. The second assessment period was from 1 February 2006 to 31 December 2006. E had already turned 18 and was irrelevant to the assessment. The Child Support Case Officer noted that the parties agreed that E had been in the care of the father for several months but also noted that she would be 18 in
November 2005 and said “[t]he current assessment provides the minimum amount of child support and the change in [E’s] care, without Mr [Forbes’] notification of the change, has no impact on the amount of child support currently payable.” The fact that E was 18 meant that when the child support income amount was increased from 1 February 2006 to 31 December 2006 the actual assessment would not include E as a relevant child for the purposes of child support. The assertion that she was under the age of 18 during the second assessment period is factually incorrect.Insofar as this ground also contends that the Federal Magistrate failed to consider the financial impact of S and E living with the father the Federal Magistrate accurately, as far as we can see in paragraph 58 of her reasons, recorded the fact that:
From soon after separation until 2005 the mother had the care of all 5 children of the marriage. Until September 2006 she had the care of 4 of the children. She still has the care of 3 of the children, who remain dependent on her
However as the gravamen of the Federal Magistrate’s decision was that the father had failed to establish a threshold ground for departure, she did not need to go on to consider the financial impact of the children living with him during the second assessment period or at the time of hearing.
Appeal Ground B
The father then complains that the Federal Magistrate misapplied the law in Hides & Hatton (supra) by failing to take account of the current weakness in his financial position when considering each previous child support assessment period in respect of which departure is sought.
As the Federal Magistrate indicated, correctly in our view, although the Full Court in Hides v Hatton (supra) said that regard could be had to the current circumstances of the parties and in particular the present capacity of the payer to meet a new assessment, the applicant had not made out a threshold ground for departure. As such the Federal Magistrate did not need to go on to consider whether a particular order would be made, which might arguably have involved a consideration of current circumstances.
Appeal Ground C
This ground asserts the Federal Magistrate erred in law by not considering the proceedings could be conducted under both s 117(2)(a)(iii)(A) and s 117(2)(c)(ia). These sections say as follows:
(2) For the purposes of subparagraph (1)(b)(i), the grounds for departure are as follows:
(a) that, in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of:
…
(iii) commitments of the parent necessary to enable the parent to support:
(A) himself or herself; or …
…
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:
…
(ia) because of the income, property and financial resources of either parent; or ….
In essence s 117 (2)(a)(iii)(A) provides for the establishment for a ground for departure that in special circumstances of the case the capacity of either parent to provide financial support for the child is significantly reduced because of commitments of the parent necessary to enable the parent to support himself or herself.
Section 117(2)(c)(ia) provides for the establishment for a ground for departure on the basis that the applicant establishes that in special circumstances of the case application in relation to the child of the provisions of the Act relating to an 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 because of the income, property and financial resources of either parent.
In support of this ground the father complains that the Federal Magistrate failed to take into account his summary of argument filed on 26 September 2006 and conducted the proceedings only under s 117(2)(c)(ia) of the Act. This ground, in our view, is misconceived. At paragraph 19 of her reasons the Federal Magistrate recorded that at the commencement of the hearing she had canvassed with the father the grounds upon which he might seek to rely and noted that they included the grounds set out in s 117(2)(a)(iii)(A), s 117(2)(c)(ia) and s 117(2)(c)(ib). She went on to then say:
However, on the basis of both parties’ evidence and their submissions, it is clear to me the father brings his case on the basis of his income and financial resources – s 117(2)(c)(ia) while the mother brings her case for dismissal of the father’s application on the basis of his earning capacity – s 117(2)(c)(ib ).
The father has not provided the transcript from which we could determine whether or not discussion with the Federal Magistrate or other particular pieces of evidence would assist the father with this ground. While it is true that in his written summary of argument the father states that his application was made in reliance upon, inter alia, s 117(2)(a)(iii)(A), as indicated by the Federal Magistrate the gravamen of his argument as discerned from his summary of argument is clearly related, as the Federal Magistrate found, to his income and financial resources. He said in his written summary:
Firstly, I can establish that there are “grounds” to my application for a departure.
- The grounds are I did not (and do not) have the earning capacity to earn the income that the administrative assessment(s) that are in dispute were based on. For example, I have been and still am on Centrelink payments. This includes a carer’s payment to previously take care of my father (who has since died) and now take care of my mother. My other sources of income in that period have been negligible.
Secondly, that administrative assessment is “unjust and inequitable” in that
- My principal source of income is from Centrelink payments. I was and still am on Centrelink payments. Therefore my overall income is very low – just enough to support myself.
- My earning capacity is significantly reduced by the need to look after my parents (my father who has since died, in the first instance, and my mother in the second instance).
- My property, which is also part owned by my mother, has severe negative equity. I don’t have any money in the bank or any other financial resources. Therefore my overall financial resources are negligible.
- The [mother’s] husband is in a highly paid position with [W] City Council. Therefore the income of the household in which the Respondent resides is significantly higher than mine.
- The [mother] has a greater income earning capacity than I have because she has fewer commitments than I do.
- The [mother] (with her husband) has positive equity in a property in [C] Street, West [W].
- The [mother] also has significantly greater other financial resources than I have – e.g. more money in the bank.
In our view it is demonstrably clear that the thrust of the father’s case was that his actual income from Centrelink payments should be the income considered, not the income which it was found he had the capacity to earn. In our view the Federal Magistrate did not err in finding that the father’s application was essentially brought on the basis of his income and financial resources. However, as we will describe, the issue of his commitments became relevant to his earning capacity and was dealt with by the Federal Magistrate.
In his oral argument before us, the father said the commitments he relied upon were the fact that he was caring for his father, had made application for a carer’s payment and was sharing the same house as his parents. His father apparently died in 2003 but at the time of the first assessment period the father asserted that he was caring for him.
The Federal Magistrate was aware of this contention and in paragraph 43 of her reasons said:
The father says he obtained a carer’s pension for 4 months before his father’s death in January 2003. He adduces no evidence as to what care he provided to his father during this period or as to how his father’s health may have affected his capacity to work. The father adduces no evidence as to the state of his own health during this period. The father does not contend that the decisions he made concerning his employment can be justified on the basis of his caring responsibilities or his state of health. On the contrary, he gives other reasons for his change in work arrangements. I am satisfied s.117(7B)(b) does apply in this case. I am satisfied that the father’s decision not to work, or to reduce his number of hours of work or to change his occupation is not justified on the basis of either his caring responsibilities or his state of health.
Before us in oral argument the father contended that he had paid school fees for the children in excess of $40,000 and that the Federal Magistrate paid no regard to the fact that he was paying fees even though he had set this out in detail. This assertion can perhaps most conveniently be considered with ground ‘f’, in which the father complains that the Federal Magistrate was mistaken when she made the comment that “[h]e says he paid school fees but could not explain the source of those funds, nor does he adduce any verifying evidence as to how much he actually paid in school fees”.
In support of this ground, the father contends that the Federal Magistrate erred by failing to accept his evidence that the school fees were paid from one-off redemptions from his superannuation fund, which was redeemed on hardship grounds. This contention however ignores the finding by the Federal Magistrate in paragraph 8 of her reasons where she said:
At hearing [sic], the father asks [sic] the Court to disregard any school fees he might have paid. Otherwise, the father relies on his Amended Application filed 26 September 2006, his Financial Statements sworn 25 January 2006 and 8 May 2007 and his affidavits sworn 8 May 2007 and 26 September 2006.
In paragraph 26, to which the father refers in respect of this ground, the balance of what was said by the Federal Magistrate is of relevance. What she said was “[t]he father did not claim any school fees as non-agency payments against his child support liability, nor does he ask the court to have regard to any such fees when determining this application.”
Accordingly, we cannot see that the Federal Magistrate fell into error, given the way the father conducted his case. As no transcript was provided to us, whether or not the father did give evidence as to where the funds came from, and whether the Federal Magistrate was mistaken in that evidence or overlooked it, is not of relevance to the decision, given that the father was not asking the Court to have regard to school fees. Before us the father confirmed that that had been his position.
Appeal Ground D
This ground was not pursued by the father.
Appeal Ground E
This ground is discursive but in essence it is that the Federal Magistrate fell into error in concluding that the father was deliberately avoiding work to avoid child support by placing too much weight on his attitude to the CSA, as evidenced by various written communications with them. The father asserts that the context of his frustration with the CSA stemmed from reasonable responses in the face of actions taken by the CSA. His written submissions provide as an example that the Federal Magistrate ignored the statements made in paragraphs 40 to 52 and 56 to 79 of his affidavit filed 26 September 2006, and in particular paragraph 71 and 72 of that affidavit.
Having considered those paragraphs however, we do not find any support in them for the contentions of the father. They amount to a catalogue of criticisms of certain CSA employees and their various assessments in relation to the father from time to time. The father regards the actions of the members of the CSA and their decisions as unsatisfactory and erroneous but provided no objective evidence supportive of his views. While in paragraph 21 of her reasons the Federal Magistrate found much of the father’s affidavit material concerned his “anger and frustration with the Child Support Agency”, she found this was irrelevant to the issues to be determined and far from giving them too much weight, she appears to have given them no weight.
The reference in his oral submissions to page 159 of the Appeal Book, which is a table indicating details of the father’s gross income, tax, child support, school fees and net income from 3 March 2003 to 20 July 2003 (Attachment K), which he asserted was not considered by the Federal Magistrate, does not advance this ground.
In paragraph 25 of her reasons the Federal Magistrate noted that the father was employed casually as a teacher for the first two terms of the school year until July 2003, which information appeared to be sourced from attachment ‘K’ referred to on page 159 of the Appeal Book. She was thus aware the father asserted he had income from casual teaching but observed that he did not provide corroborative evidence by way of a group certificate or any payslips from the school. She noted that he received agistment fees but did not provide verifying evidence.
There is no doubt the father did have strong views about the CSA, which he believed was responsible for some of the parenting arrangements which he regarded as unsatisfactory (to him), and consequently largely ignored the financial obligations created by the assessments. He contends however, that despite his views, he continued to work and that the Federal Magistrate was therefore not entitled to draw adverse inferences against him because of his attitude towards the CSA. But as we have observed, other than to recite the facts and his attitude, the Federal Magistrate did not determine the case on the basis that the father had antipathy towards the CSA, nor did the Federal Magistrate use it as the basis for any findings.
Appeal Ground F
This ground relates to the father’s alleged payment of the children’s school fees and we have already dealt with this issue.
Appeal Ground G
This is a complaint that the Federal Magistrate erred in coming to the conclusion that “[o]n the inadequate evidence before me I can make no findings as to the father’s actual income during this child support period.” The period in question was May 2002 to December 2003. The argument in support of the ground is a general one that the Federal Magistrate did not give sufficient weight to the evidence that was before her. What the Federal Magistrate said about this issue is to be found in paragraphs 23 to 26 inclusive of her reasons. She said first that it was common ground that during this period, the five children were living primarily with the mother. Secondly, that the father adduced minimal evidence as to his income and expenses during this period. Thirdly, that the father claimed that he was “almost destitute” during this period and the Federal Magistrate set out the taxable income to which the father deposed.
The Federal Magistrate noted that the father asserted that during this period he was self-employed as a painter and builder’s labourer, working in part for his brother, until there was no work coming into the business. She noted that he adduced no evidence as to the contractual arrangements and provided no accounts for the business. She noted that he received a carer’s payment until his father died in January 2003 and was then casually employed as a teacher for the first two terms of the school year until July 2003. She noted he did not provide a group certificate or any pay slips from the school and that he had thereafter been dependent on Newstart allowance until 31 December, the end of the child support period. She noted that although he said he had received agistment fees, there was no evidence of this.
The Federal Magistrate also found there was no specific evidence of the father’s expenses during this period and although he paid school fees, he could not explain the source of the funds, nor did he adduce verifying evidence as to how much he actually paid in school fees. She noted, as previously explained, the father did not claim any school fees as non-agency payments against his child support liability, nor did he ask the Court to have regard to any such fees in determining the application. The Federal Magistrate’s conclusion was that on the inadequate evidence before her, she could make no findings as to his actual income during this child support period or as to his expenses or how he met them.
In support of this ground the only documents in the Appeal Book that corroborate any income in this period are: two pages taken from a tax return for the year 2002, being pages two and eight of a document of eight pages; one page of a tax return for 2003, being page two of ten; and one page of a 2004 tax return, being page two of nine. The first is some income from labouring for contract and decorating services, the second for 2003 is income from the Christian College Ltd of $24,387 and the third is income from the Christian College Ltd of 2004 of $21,990.
At paragraph 25 of the Reasons for Judgment the Federal Magistrate acknowledged these amounts but noted that no group certificate or payslips from the school were provided. In our view, given that only selected pages from tax returns were adduced without other corroboration which would properly verify documents produced, the Federal Magistrate could not be criticised for not being able to make a finding as to the father’s actual income during the child support period and we find no support for this ground.
Appeal Ground H
This ground asserts that the Federal Magistrate erred in identifying a property at M, of which the father is a two-thirds owner, as having “coastal views” and therefore inferring that the property was valuable. He also complains that the Federal Magistrate accepted the unsubstantiated evidence of the mother and otherwise that she placed too much weight on the evidence of the mother about the property, which was unsupported by any expert evidence or evidence of value that would be admissible.
In paragraph 30 of her reasons the Federal Magistrate noted that the father lived on a 107 acre property at M of which he is a two-thirds owner, with his mother owning the other one-third. She noted that the property had coastal views and that the father deposed to the whole property having an estimated value of $650,000 in January 2006 and $780,000 in May 2007. She noted that he said its value was increasing. The Federal Magistrate noted that the mother believed the property had a much higher value because of its size and unique position and noted the mother’s concession that it was difficult to value. The difficulty, as we see it, for the father in this ground is that the Federal Magistrate made no findings as to value of the M property about which the father could legitimately complain.
The second part of this ground is a complaint that in not making a finding as to the amount of equity the father had in the M property, the Federal Magistrate fell into error and should have found on the evidence that the father had a negative equity in the property. At paragraph 31 the Federal Magistrate explained that in his financial statement the father claimed that he owed over $1 million by way of mortgage to a number of creditors, which he claimed had increased to $1,228,500 by May 2007. The Federal Magistrate noted that the corroborative evidence of a title search dated 20 October 2000 disclosed one registered mortgage to Mr and Mrs H dated 17 October 2000 for a principal amount of $385,000. The Federal Magistrate noted and found that the father said he had not repaid any of the debt, did not know the current balance of the debt to the H’s or to any of the other creditors, nor did he know the overall balance owed. She recorded that he said that none of the mortgagees had taken steps to enforce payment of their debts and that in relation to mortgage debts allegedly owed to other creditors, the father adduced no other evidence.
The Federal Magistrate went on to observe there was no evidence as to when the debts arose, that the father did not explain why the creditors, most of whom were members of his family, had not sworn affidavits or been called to give evidence and when asked how he proposed to repay the debts, informed the Federal Magistrate that some of the lenders were “friendly” and others were not and that the property was increasing in value all the time. She noted that he provided vague details of possible plans to alter boundaries between his and his sister’s adjacent properties to create access ways, which might enable him to refinance the loan to Mr and Mrs H.
The Federal Magistrate found (at paragraph 32) the father’s evidence in relation to these loans “so unsatisfactory as to be unreliable” and was consequently unable to make a finding as to the amount of his equity in the M property.
In oral submissions to us the father contended that he did provide material from which the Federal Magistrate could have found conclusively what his liability was and that he had a negative equity. He referred us to pages 215 and 216 of the Appeal Books but page 215 contains the mortgage referred to by the Federal Magistrate dated 17 October 2000, showing a liability of $385,000 to Mr and Mrs H. At page 216 of the Appeal Book is another part of that incomplete document setting out the default interest clause, when the mortgage would be deemed to be in default, and the fact that the principal and the accrued interest would be repayable no later than ten years from the date, namely 17 October 2000. None of those facts advance this ground, nor corroborate the father’s liability, nor deal with the matters raised by the Federal Magistrate. In any event, as she was unable to make a finding as to value of the property because of inadequate evidence, it is logical that she was unable to establish what equity the father had in it.
The third part of this ground was the fact that the Federal Magistrate failed to take into account the significance of the fact the property was also a third owned by the father’s mother, who was a resident on the property. The complaint is that the Federal Magistrate erred by failing to consider that if the child support assessments were left to stand as they are, they might well result in action being taken by the CSA to have the property sold and, inferentially, that two of the children would be without residential accommodation. The father did not point us to any material provided to the Federal Magistrate which suggested that the sale of the property was imminent and as he did not produce any transcript, it is impossible to determine whether or not this was an argument raised with the Federal Magistrate at all.
Appeal Ground I
This ground relates to the Federal Magistrate’s inability to make a finding as to the amount of equity in the M property and we have already dealt with that ground.
Appeal Ground J
This ground complains that the Federal Magistrate erred by accepting unsubstantiated evidence given by the mother. At paragraph 34 of her reasons the Federal Magistrate noted that in her change of assessment application dated March 2002 the mother contended the father had other sources of income not taken into account including, inter alia, “agistment of horses” and “rent from house on property”. At paragraph 35 she observed that neither party adduced any evidence as to income potential from agisting animals and although the father said he had earned $1,000 a year at times from agistment fees, that he adduced no evidence as to the property’s capacity to agist horses or other animals. The Federal Magistrate therefore indicated she was unable to make any findings about the father’s earning capacity from this source. We are thus unable to see how it could be reasonably asserted that the Federal Magistrate had accepted any unsubstantiated evidence of the respondent mother.
Appeal Ground K
This ground complains that the Federal Magistrate made a finding that was not open to her on the evidence when she found that “he gave one of his creditors, Mr [H], the right to occupy the ‘top house’ in exchange for interest payments on the loan”. This was dealt with in paragraph 36 of the Reasons for Judgment. The Federal Magistrate there said:
There are two dwellings on the [M] property. The father and his mother live in one. The father says he does not know who is living in the ‘top house’, being the second dwelling. In response to questions as to why he does not receive rent from the second dwelling, the father says he gave one of his creditors, Mr [H], the right to occupy the ‘top house’ in exchange for interest payments on the loan, as part of their agreement in October 2000. He says the rental potential is approximately $300 a week. He says Mr [H] took possession of the dwelling in 2000, and spent money on the house to make it liveable. The father adduces no verifying evidence of any such agreement nor does he adduce any evidence from Mr [H] or Mrs [H] about any aspect of their loan arrangements. The father concedes he has not advised the Australian Taxation Office of this arrangement, nor declared the income to the Child Support Agency “because I have a poor relationship with them.”
She concluded in paragraph 37 “[g]iven the paucity of evidence on this issue, the father does not persuade me that he cannot make arrangements to derive income from tenanting the second dwelling”.
The father has produced nothing by way of a transcript to suggest that the Federal Magistrate was not entitled to make these findings, which appear to be quotes from evidence given by the father. In oral submissions to us, he denied having said there was an agreement regarding the dwelling and interest and said the interest was capitalised. He admitted he said the rental potential was $300 per week and submitted to us that as part of the agreement with Mr H, interest was capitalised and occupation of the house was an arrangement he negotiated with Mr H. The arrangement he said was there was to be a sub-division and Mr H was to occupy the property until then. The sub-division failed and Mr H continued to occupy the premises. The father asserted that all this was before the Federal Magistrate.
The difficulty, as we have said, is that the father has not provided the transcript which may support his submission to us. In any event, the matters found in paragraph 36 by the Federal Magistrate are not inconsistent with the matters put to us in oral submissions. The Federal Magistrate said “[t]he father adduces no verifying evidence of any such agreement nor does he adduce any evidence from Mr [H] or Mrs [H] about any aspect of their loan arrangements.” The father did not suggest to us that there was any such evidence that the Federal Magistrate had ignored and accordingly we cannot see that the findings made by the Federal Magistrate were not open to her.
Finally, in this ground, the father complains that the Federal Magistrate was not entitled to find that he had a poor relationship with the Australian Taxation Office or that he was not paying child support because of an alleged poor relationship with the CSA. It is clear in our view that the Federal Magistrate’s finding was that it was a concession by the father that he had not declared the income to the CSA because he had a poor relationship with them. He produced no transcript to support his contention that the Federal Magistrate’s noting of the concession was inaccurate.
Appeal Ground L
This ground is really part of ground “k.” and asserts that the conclusion reached by the Federal Magistrate, namely that the father had not persuaded her he cannot make arrangements to derive income from tenanting his second dwelling, given the paucity of evidence on this point, was in error. In our view, without the production of the transcript at least, there is nothing to suggest that the Federal Magistrate was not entitled to come to this conclusion.
Failure to provide procedural fairness
Appeal Ground M
This ground relates to procedural fairness and the father indicated that he proposed to add nothing further in oral submissions. The ground asserts that in applying s 117(7A) and s 117(7B) without advising the father she was proposing to do so, the Federal Magistrate denied the father procedural fairness.
At paragraph 19 of her reasons, the Federal Magistrate indicated that the “Amending Bill (No 53)” required “the court to apply the current provisions of the Act”. At paragraph 28 she set out the provisions of s 117(7A), being:
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.
At paragraph 39 she set out the provisions of s 117(7B), being:
In having regard to the earning capacity of a parent of the child, the court may determine that the parent’s earning capacity is greater than is reflected in his or her income for the purposes of this Act only if the court is satisfied that:
(a) one or more of the following applies:
(i) the parent does not work despite ample opportunity to do so;
(ii) the parent has reduced the number of hours per week of his or her employment or other work below the normal number of hours per week that constitutes full‑time work for the occupation or industry in which the parent is employed or otherwise engaged;
(iii) the parent has changed his or her occupation, industry or working pattern; and
(b) the parent’s decision not to work, to reduce the number of hours, or to change his or her occupation, industry or working pattern, is not justified on the basis of:
(i) the parent’s caring responsibilities; or
(ii) the parent’s state of health; and
(c) the parent has not demonstrated that it was not a major purpose of that decision to affect the administrative assessment of child support in relation to the child.
In paragraph 41 the Federal Magistrate concluded that, given the inadequacy of the father’s evidence, it was difficult to make precise findings as to his employment history, but she was satisfied that s 117(7B)(a) applied and that the father had changed his working pattern during that period, that is July 1997 and 31 December 2003, and at times changed the occupation in which he worked and when he was employed in the teaching profession worked only for limited periods, thereby reducing his working hours to below the normal number of hours that constitutes full-time work for that profession. She then went on to consider in paragraph 42 under s 117(7B)(b) whether or not the decision to reduce his hours, change his occupation or change his working pattern was justified on the basis of either his caring responsibilities or state of health and found that s 117(7B)(b) was not satisfied. We make the point again that without the transcript to suggest otherwise, the father has not established that the Federal Magistrate did not make clear to him the provisions of the Act she was obliged to apply and their consequences, and thus that he was deprived of the opportunity to make submissions.
Appeal Ground N
This ground essentially complains about the Federal Magistrate’s findings pursuant to s 117(7B)(a), that the father changed his working pattern at the end of 1997, moving from full-time employment as a teacher to working in his own business as a painter/labourer, teaching casually or not working at all (reasons paragraphs 41 and 53) and pursuant to s 117(7B)(b) his decision not to work, to reduce the number of hours or to change his occupation, industry or working pattern was not justified on the basis of his caring responsibilities or state of health of his parents. In particular, the father contends that the Federal Magistrate failed to take into account the need to carry out the caring responsibilities to his parents.
In relation to the first assessment period the Federal Magistrate addressed this issue in paragraph 43 of her reasons, noting that although the father said he had obtained a carer’s pension for four months before his father’s death in January 2003, he adduced no evidence as to what care he provided to his father during this period or as to how his father’s health may have affected his capacity to work. As well, the Federal Magistrate noted that the father did not contend that the decisions he made concerning his employment “can be justified on the basis of his caring responsibilities or his state of health.” She indicated that on the contrary, he gave other reasons for the change in his work arrangements.
The father in oral submissions referred us to paragraphs 40 to 52 and paragraphs 56 to 79 of his affidavit, filed 26 September 2006. However, it is difficult to see how these paragraphs assist him with this ground. Paragraphs 42 to 52 complain about the manner in which the Child Support Assessment Case Officers dealt with his capacity to work and complained he did not have an adequate opportunity to respond. That was clearly not the case before the Federal Magistrate. Paragraphs 56 to 79 are equally unhelpful to this ground for the same reasons. It is only when one reaches paragraph 74 it becomes of any relevance and it is useful to set out what he said (paragraphs 74 to 79):
During 2000 while I was employed as a teacher at [the Community School] my net income was $7 340. This was after deductions of $10 052 for Child Support, $6 505 for taxation, $5 050 for school fees and $4 800 for work related travel and accommodation costs.
During 2000 I had only $7 340 to cover the costs of my 29% contact time with my children as well as my own living expenses.
Similarly in 2006, while employed as casual teacher at [the Christian College], my net income was substantially less than my gross income. On one occasion my fortnightly gross income of $1 249.06 was reduced to a net income of $0.00. This is because the CSA disregarded the exempt income amount, which they are able to do when there are arrears. This is detailed in Attachment “K”.
The implications of this is [sic] that I was unable to continue in this employment and had no option other to rely on Centrelink benefits. An explanation of this is included in two successful applications for early withdrawal of preserved superannuation funds (Attachment “L”).
I continually seek work, primarily in full-time teaching positions. Attachment “M” is a response from one such application. There had been 77 applicants for this position.
I am currently enrolled in a course of study at … TAFE in Information Technology Certificate 1 in an endeavour to bring my teaching skills up to date.
Two comments can be made about this material, apparently relied upon in support of this ground. The first is that it is consistent with what the father submitted orally to us, namely that he found that when he was teaching, as a result of deductions made by the CSA he was not left with much money. This is essentially the point made in his affidavit and supports the Federal Magistrate’s conclusion that the father was choosing not to return to full-time teaching for reasons other than the need to carry out caring responsibilities to his parents or either of them. In relation to the second assessment period the Federal Magistrate made similar findings and commented (at paragraph 52 of the Reasons for Judgment):
I have earlier referred to s 117(7B). If the court determines a parent has an earning capacity greater than reflected in his or her income for the purposes of the Act, it must be satisfied that (a) (b) and (c) of s 117(7B) apply. There is no evidence to satisfy me anything has changed substantially since the 2002/3 child support period.
The Federal Magistrate then went on to note that the father had changed his work pattern at the end of 1997, and by 2006 he had stopped work as a casual teacher altogether. She noted that in relation to the second assessment period (in paragraph 54) that the father said that he was caring for his elderly mother and was in receipt of a carer’s pension. She noted that although he said he believed “his presence in the house with his mother has almost certainly prolonged her life”, the Federal Magistrate noted no medical or other independent evidence of his mother’s state of health or the role he was required to play in 2006 was provided. She further noted that the father did not contend that his reason for not working as a teacher in either a full-time or casual role or for not working as a builder’s labourer more than five weeks during 2006 is in any way related to his caring responsibilities. On the contrary, she noted the father told the Senior Case Officer in September 2005 and said in his affidavit sworn September 2006 that he was actively seeking employment in both the building industry and the teaching profession.
Indeed the Federal Magistrate’s observations are borne out by statements in the father’s affidavit filed on 8 May 2007 in which he said:
102. I continually seek work. Up until about a year ago this has been primarily in full-time teaching positions…
...
103.In 2006 I enrolled in a course of study at … TAFE in Information Technology Certificate 1 in an endeavour to bring my teaching skills up to date.
104.I am currently enrolled in a Fine Arts course at … TAFE. The reason for enrolling in this course is to become better equipped as a primary school teacher.
105.My current income is a Centrelink Carers Payment and Allowance. I care for my elderly mother.
106.Although not required to by Centrelink, I remain registered with a Job Network Agency. With their assistance I am actively seeking employment.
The father then went on to say he no longer sought work as a teacher of children in either public or private schools because the respondent’s brother had threatened him with violence and death on two occasions (paragraphs 108 and 109).
Given this evidence, it was quite clear that the Federal Magistrate was entitled to find that the father did not contend that his reason for not working as a teacher in a full-time or casual role or for not working as a builder’s labourer related to his caring responsibilities for his mother.
Appeal ground O
This ground contends that several factual findings, culminating in a conclusion that the father’s evidence on this issue was implausible, was against the weight of the evidence and that the Federal Magistrate was not entitled to make various findings.
The father contends that the Federal Magistrate erred by finding that (reasons paragraph 44(f)) “[t]he father claims to have borrowed hundreds of thousands of dollars from members of his family and others, yet claims to have been unable to afford to register his motor vehicle from August 2003 for 18 months”. The father contends this finding was not open to the Federal Magistrate because she failed to appreciate that he was required to meet a large property settlement to the mother in 2000 and that the borrowed funds had already been fully expended for that purpose more than three years prior to August 2003.
To the extent that this finding had any direct bearing on the Federal Magistrate’s decision, which we doubt, we think that the father misunderstands the gravamen of what the Federal Magistrate was saying. She was not indicating that the loan that he had borrowed had not already been applied, but rather that he had family members and friends who were obviously willing to lend him large sums of money to whom he might have recourse for the fairly modest payment of the registration of his motor vehicle if it enabled him to obtain employment.
The father complains that the Federal Magistrate accepted the mother’s comments that the father had ready access to his mother’s car and rejected his evidence that the car was only available to transport the children and not to travel for work.
The Federal Magistrate clearly found his evidence on this issue implausible. Having regard to the benefit to the trial judge of seeing and hearing the father and the mother give evidence, the Federal Magistrate was entitled as part of her role to have regard to the whole of the evidence before her in determining whether to accept the evidence of the father or the mother on this point and the finding was in our view open to her. (See CGU Insurance Ltd v Porthouse (2008) 235 CLR 103, Fox v Percy (2003) 214 CLR 118 and Warren v Coombs (1979) 142 CLR 531).
Appeal Grounds P and Q
Appeal ground “q.” complains that the Federal Magistrate erred in not accepting the evidence provided in the father’s financial statement sworn on 2 May 2007. The findings with which the father takes issue are to be found at paragraphs 47 to 49 inclusive of her reasons. The father swore two financial statements and both of these are discussed by the Federal Magistrate. The Federal Magistrate simply noted what the father claimed in his financial statements and pointed out some discrepancies between the two. In particular, she noted that in his statement sworn on 25 January 2006 he deposed to expenses of $495 a week but omitted a number of other expenses that occurred in his later statement and provided no explanation for the differences.
The inference we draw from the Federal Magistrate having included this material is that when one includes expenses the father appeared to be incurring, not accounted for in the financial statement, such as health insurance premiums, vehicle insurance and property insurance, his expenses would be even higher and consequently not able to be met from the income he claimed to be receiving, with no explanation as to how he paid these expenses. In addition, the Federal Magistrate noted that the father opposed the mother’s application to the Family Court to have the two younger children moved from private to public schools and asked the Court to accept he would meet the fees without explanation for where the money was to come from. The Federal Magistrate having noted these disparities simply then concluded “the father has not completed his Financial Statements accurately”. Mindful of the father’s explanation for capacity to meet the school fees, we nevertheless do not see that there is reason why the finding made by the Federal Magistrate was not open to her, given the disparities to which we have referred.
The Federal Magistrate was not satisfied the father was deriving all the income he could from agistment fees and rent from the property at M. As to the first of these, the father contends the Federal Magistrate was not entitled to make this finding without any evidence, and furthermore if it had been raised he could have met such an argument. However there was evidence from which the Federal Magistrate could come to this conclusion. In relation to the first assessment period the father had said that he received $1,000 a year at times in agistment fees, as set out in paragraph 35 the Federal Magistrate’s reasons. Without any evidence to the contrary from the father, the Federal Magistrate was entitled to assume, in our view, that this was a continuing source of income.
Other findings the father contends were not open to the Federal Magistrate have already been addressed they are:
· Availability of rent from the M House.
· How the funds from the mortgage were applied.
· How the mortgage has increased by capitalisation of interest.
Appeal ground “p.” complains that the Federal Magistrate erred in concluding that the provisions of s 117(7B) had been met, in particular sub-section (c), the effect of which is as follows:
In having regard to the earning capacity of a parent of the child, the court may determine that the parent’s earning capacity is greater than that reflected in his or her income for the purposes of this Act only if the court is satisfied that:
…
(c)the parent has not demonstrated that it was not a major purpose of that decision to affect the administrative assessment of child support in relation to the child.
Despite the use of a double negative in the legislation, it is clear that once sub-sections (a) and (b) are satisfied, as the Federal Magistrate found them to be in this case, the onus passed to the father to demonstrate that it was not a major purpose of his decision (not to work or to reduce the number of hours) to affect the administrative assessment of child support in relation to the children.
The father contends that the Federal Magistrate’s conclusion was wrong, based upon incorrect observations and an inappropriate approach with respect to s 117(7B). We do not think there was anything inappropriate in the Federal Magistrate’s approach to s 117(7B) and the father did not expand upon what he meant by this ground in oral submissions. The Federal Magistrate dealt with s 117(7B) in relation to the first assessment period in paragraph 44 of her reasons and in relation to the second assessment period at paragraph 55. The Federal Magistrate canvassed the evidence quite extensively in relation to both periods and satisfied herself on consideration of this evidence that the father had not demonstrated (to the appropriate evidentiary standard) that it was not a major purpose of his decision to change his work pattern to affect the administrative assessment of child support. The matters canvassed by the Federal Magistrate are considered, and it is noted that the father does not attack the evidence as set out, and the Federal Magistrate was well entitled to be satisfied that the father had not met the evidentiary burden placed upon him by s 117(7B)(c).
Appeal grounds R and T
This ground complains that the Federal Magistrate erred in her finding pursuant to s 117(7B)(c) that the father’s assertion did not persuade her that it was not a major purpose of his decision to change his work pattern and to affect the administrative assessment of child support. We have already dealt with the Federal Magistrate’s comprehensive findings on the evidence, which all appear to have been open to her and in respect of which the father has not directed us to any contradictory evidence.
Appeal ground S
This ground relates to a particular comment by the Federal Magistrate in paragraph 51 which deals with the second assessment period. The Federal Magistrate referred to information provided by the father to the Senior Case Officer and in particular that “[the father] is no longer prepared to work as a casual teacher because it is “not suited to his style of teaching” and in any event, it is not viable financially”.
The father’s complaint is that the Federal Magistrate accepted hearsay comments made by the Senior Case Officer and that, had he been aware that the Federal Magistrate proposed to “make an issue of these unfounded comments”, he could have proved them to be false. However, the father did know this material was before the Federal Magistrate because it was part of the mother’s case and the material which appeared in the Notice of Decision of the Senior Case Officer, Mr D, as appendix “G” to the mother’s affidavit filed 23 June 2006. The father was not taken by surprise by this document and knew that the mother was relying on it. In addition, the Notice of Decision was attached to the father’s own affidavit and the Federal Magistrate was entirely entitled to conclude that this was material upon which the father relied.
The father had ample opportunity to refute matters of fact which he may have contended were not accurate and we can see no error in the Federal Magistrate relying upon his statement. But in any event we make the point that this is a very small fact in a much larger body of facts that led the Federal Magistrate to her final conclusion.
Arising from the same paragraph, the father complains that the Federal Magistrate erroneously found that he complained he was unable to continue in employment as a casual teacher at the Christian College in 2003 but did not provide details of gross income or deductions. The father asserts that he did provide details of gross income and deductions in exhibit “K” to his affidavit of 26 September 2006. This document has been referred to earlier and purports to be a hand-written document indicating pay details from the Christian College. The father ignores in his submission that the Federal Magistrate had already earlier dealt with that document by expressing her concern that (at paragraph 25 of the Reasons for Judgment) that the father did not provide a group certificate or any payslips from the school, nor tax returns, to verify this evidence.
The third part of the complaint is that the Federal Magistrate stated in paragraph 51 that the evidence of the father was that he was unable to continue in his employment after deductions for taxation and child support and a reduction in Centrelink benefits and that was why he successfully withdrew reserved superannuation funds during this period. The father complains that the Federal Magistrate concluded that as a result of obtaining income from that source, the father was able to avoid employment. We do not consider that that is the conclusion to which the Federal Magistrate came to at all. In fact, all she appears to have been doing in paragraph 51 was noting the evidence of the father. She did not reject the evidence that he had left his employment and gone onto Centrelink benefits or that he had withdrawn preserved superannuation funds, quite the contrary. She simply did not accept the reasons he provided for doing so. Thus we find no error by the Federal Magistrate.
Appeal ground U
The final ground asserts an error of law on the part of the Federal Magistrate with regard to the implementation of s 117(7B). This ground, which essentially asserts that the relevant sections were not in operation at the time of the hearing were dealt with by us in our judgment dated 9 September 2008, in which we rejected this ground.
Accordingly, for the reasons expressed, the father’s application must fail.
Conclusion - Leave to Appeal
We return to the issue referred to earlier in paragraphs 38 and 39, namely that the father must satisfy us that leave to appeal should be granted. Having regard to the fact that we do not find any merit in the grounds of appeal asserted by the father, it follows that the application for leave to appeal will be dismissed.
The mother appeared by leave by telephone and sought no costs for the appeal. Accordingly, there will be no order for costs in this appeal.
I certify that the preceding one hundred and eighteen (118) paragraphs are a true copy of the Reasons for Judgment of the Honourable Full Court.
Associate:
Date:
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