Holman and Child Support Registrar and Ors (SSAT Appeal) (No.2)
[2014] FCCA 2382
•22 October 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HOLMAN & CHILD SUPPORT REGISTRAR & ORS (SSAT APPEAL) (No.2) | [2014] FCCA 2382 |
| Catchwords: FAMILY LAW – Appeal from Social Security Appeals Tribunal – whether grounds of appeal raise matters of law – Tribunal’s decision clearly open on materials before it – no errors of law shown – application dismissed. |
| Legislation: Administrative Appeals Tribunal Act 1975, s.44(1) |
| LDME v JMA (SSAT Appeal) (2007) 38 Fam LR 132 Jordan v Verne (SSAT Appeal) [2012] FMCAfam 21 Comcare v Etheridge (2006) 149 FCR 522 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 Beard v Fisher [2013] FCCA 755 |
| Applicant: | MR HOLMAN |
| First Respondent: | CHILD SUPPORT REGISTRAR |
| Second Respondent: | SOCIAL SECURITY APPEALS TRIBUNAL |
| Third Respondent: | MS VINGE |
| File Number: | MLC 4842 of 2013 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 14 August 2014 |
| Date of Last Submission: | 14 August 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 22 October 2014 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the First Respondent: | Mr Maat |
| Solicitors for the First Respondent: | Australian Government Solicitor |
| The Second Respondent: | No appearance |
| The Third Respondent: | In person (by telephone) |
ORDERS
The appeal is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Holman & Child Support Registrar & Ors (SSAT Appeal) (No.2) is approved pursuant to s.110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).
| FEDERAL CIRCUIT COURT AT MELBOURNE |
MLC 4842 of 2013
| MR HOLMAN |
Applicant
And
| CHILD SUPPORT REGISTRAR |
First Respondent
| SOCIAL SECURITY APPEALS TRIBUNAL |
Second Respondent
| MS VINGE |
Third Respondent
REASONS FOR JUDGMENT
Introductory
Although the applicant, Mr Holman, filed an initiating application on 21 March 2014, the substantive matter now before the Court is his Notice of Appeal (Child Support) filed in Court by leave on 9 May 2014. It is an appeal from a decision of the Social Security Appeals Tribunal (“SSAT”) and lists five grounds of appeal, to which a further ground was added by leave given in Court.
It is common cause that appeal to this Court is limited to appeals on questions of law. The applicant asserts that all the matters he relies upon amount to errors of law. The second respondent disputes the facts as asserted by the applicant, and the first respondent submits that the matters advanced by the applicant do not amount to errors of law in any event.
For the reasons that follow, I think the Child Support Registrar – (there has been continuing confusion as to who the parties are but the written submissions were filed by the Registrar and I will assume he is the correct person to be the first respondent) - is correct, and it follows that the application will be dismissed.
The Nature of the Appeal
Pursuant to s.110B of the Child Support (Registration and Collection) Act 1988 (“the Registration and Collection Act”), a party may only appeal to this Court on a question of law from a decision of the SSAT on a review under s.103S of the Registration and Collection Act.
The decision of Judge Halligan in LDME v JMA (SSAT Appeal) (2007) 38 Fam LR 132 (“LDME”) at [20] and [21] suggests that an appeal of this sort is analogous to that under s.44(1) of the Administrative Appeals Tribunal Act 1975. Judge Halligan’s decision was the subject of express approval by Judge Jarrett in Jordan v Verne (SSAT Appeal) [2012] FMCAfam 21, and it is clear that I should follow it. Authorities concerned with the Administrative Appeals Tribunal Act make it clear that findings of fact cannot be called into question in an appeal of this sort (see Comcare v Etheridge (2006) 149 FCR 522 at [14] per Branson J, with whom Spender and Nicholson JJ agreed).
I respectfully agree with Judge Halligan, who in LDME observed at [31]:
“I am therefore of the view that an unduly legalistic or pedantic approach should not be taken in analysing the grounds of appeal stated in the notice of appeal. Especially with unrepresented litigants, the court must strive to identify from the case presented whether a question of law arises that may justify the orders sought and strive, consistent with the requirements of procedural fairness, to deal with the substance of the case.”
Nonetheless, it remains clear that an appeal in these circumstances is limited to one of law alone.
As the Full Court of the Federal Court observed in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at [287]-[288]:
“The limitation of the jurisdiction to the resolution of questions of law imposes a significant constraint upon the role of the court in reviewing decisions of the tribunal. The appealable error of law must arise on the facts found by the tribunal or must vitiate the findings made or must have led the tribunal to omit to make a finding it was legally required to make. A wrong finding of fact is not sufficient to demonstrate error of law: Waterford v Commonwealth (1987)163 CLR 54 at 77–8; 71 ALR 673. Where the decision of the tribunal involves matters of fact and degree, then provided it applies correct principles of law, no appeal will lie: FCT v Brixius (1987) 16 FCR 359 at 365.”
The Procedural History of the Matter
The first initiating application (Family Law) filed by the applicant was on 19 June 2013, and that, relevantly, sought a stay of back-payment of child support pending the outcome of an application by the applicant to have his assessment changed due to special circumstances. I was informed by counsel for the Registrar during the currency of the hearing that that stay, as a matter of administrative practice, is still in place.
As earlier indicated, the applicant filed an initiating application on 21 March 2014, following the conclusion of that review process, seeking leave to appeal a decision of the SSAT “on reason that the decision was incorrect and unfair and that the tribunal erred in their interpretation of the definition of ‘special needs’.”
The applicant filed an affidavit together with substantial annexures on 21 March 2014, and, as earlier indicated, his Notice of Appeal, which, as it were, regularised the nature of the application, was filed in Court on 9 May 2014. Shortly before that, on 5 May 2014, the third respondent filed her affidavit in opposition, which put in issue many of the factual assertions made by the applicant in his own affidavit.
When the matter commenced before the Court on 14 August 2014, the applicant sought an adjournment on the basis that the outline of submissions of the Child Support Registrar had been late filed. When I refused to adjourn the trial to give the applicant more time to consider the Registrar’s outline of submissions, a recusal application was made. I refer to, without repeating, the reasons I gave both for not allowing the adjournment and refusing to recuse myself.
The Material Filed with the Applicant’s Affidavit
The applicant’s affidavit runs to 31 closely typed paragraphs. Given the applicant’s self‑representation, it is no surprise that while being very detailed, it does not necessarily proceed in a very ordered way. There are complaints of the way in which the Tribunal conducted the appeal. There are complaints that the decision of the Tribunal improperly directs moneys to be paid which were considered and taken into account during the property settlement between the applicant and the third respondent. There are legal submissions, which are now taken up in the Notice of Appeal, and detailed criticism made of the evidence before the Tribunal and what the Tribunal made of it. Given its density, it will be more appropriate to deal with each of the matters the applicant raises in his Notice of Appeal seriatim.
The affidavit annexes a copy of the decision of the Tribunal dated 18 February 2014. The decision under review was varied so that:
·from 1 October 2012 to 12 June 2013, Mr Holman’s adjusted taxable income was set at $88,697 per annum, and
·from 19 February 2014 to 18 February 2015, the Mr Holman’s rate of child support payable is increased by $2,250 per annum (on account of the children’s special needs).
This figure was subsequently administratively increased to $2,750 per year.
The affidavit was also accompanied by substantial tranches of material, which appear to be materials filed by the parties in relation to the Tribunal hearing. An exception is a Statement of Financial Circumstances (Child support reviews) declared on 19 March 2014 after the Tribunal hearing.
Ground 1 That the decision of Mr J of the Social Security Appeals Tribunal be dismissed or set aside on the grounds that he has made an error at Law in regards to his interpretation of subparagraph 117(2)(b)(ia) of the Child Support (Assessment Act) 1989 in that he did not have grounds to establish ‘on account of the children’s special needs’.
This matter is addressed, as the Registrar’s submissions correctly point out, in paragraphs 10-24 of the applicant’s affidavit. Put shortly, it is the applicant’s assertion that the orthodontic needs of the children, [X] and [Y], were not special needs within the meaning of the Act and were for cosmetic purposes only. The applicant makes criticism of the materials before the Tribunal and the way in which the Tribunal dealt with them. I note that the Tribunal was clearly seized with the terms of the legislation (see paragraph 8, Tribunal’s decision, where s.117(2)(b)(ia) of the Child Support (Assessment) Act 1989 is set out).
I note, further, that following a directions hearing, Ms Vinge provided an undated letter from Dr H of The [omitted] Centre which relevantly stated (see paragraph 12, Tribunal’s decision):
“This treatment is not simply for aesthetic concerns, but has also persevered and in many aspects improved their quality of life. Augmentation of airways patency and improved chewing function are two primary examples of these benefits.”
The Tribunal recorded that the applicant did not present any expert evidence concerning the children’s needs or lack thereof or any expert evidence concerning the correct interpretation of Dr H’s letter. The applicant expressed his own opinion that the treatments were purely for aesthetics, but the Tribunal accepted Dr H’s evidence. The Tribunal said at paragraph 14:
“… In the Tribunal’s opinion, orthodontic treatments tend to fall on a spectrum with need at one end and aesthetics at the other. It is unfortunate that Dr H was not more specific about the degree to which the treatments were needed. However, findings must be made on the available evidence. The Tribunal notes that [X]’s condition included a severe degree of dental crowding and [Y]’s condition included a severe mouth breathing condition. Such descriptions suggest that the children’s needs were significant. The Tribunal finds, on balance, that the children had special needs.”
In his affidavit the applicant criticises the remarks of Dr H about [Y]’s mouth breathing condition on the basis that he was not appropriately qualified to make that assertion. He further asserts at paragraphs 23 and 24:
“23. Further to this, Mr J states I did not provide any expert evidence concerning the correct interpretation of Dr H’s letter. I did not receive this document until days before the hearing and was in no position to have the letter reviewed.
24. Again I reiterate that Mr J has placed undue emphasis on the above information and that the information does not constitute special needs or special circumstances.”
As the written submissions of the Registrar correctly point out, orthodontic needs can constitute a special need for the purposes of s.117(2)(b)(ia) (see Beard v Fisher [2013] FCCA 755 at [67] and the other authorities quoted in paragraph 17 of the Registrar’s written submissions).
I accept the submission of the Registrar that the Tribunal’s finding that the treatments were not simple for aesthetic concerns was a finding of fact, and it is not reviewable by this Court. The reality is that the Tribunal was dealing with the applications before it on the evidence before it and did not fall into error of law in doing so.
In circumstances where the Tribunal made a finding clearly open to it that the children’s treatments cost $7,500 each without braces of which $5,500 was still owing at the time the applicant had lodged his departure application, the Tribunal’s finding that such costs significantly affect the costs of maintaining the children (see paragraph 16 Tribunal’s decision) clearly supported the ultimate finding made that the orthodontic needs were special needs and that the significant associated costs thereof met the requirement in s.117(2)(b)(ia).
Ground 2 That the decision of Mr J of the Social Security Appeals Tribunal be dismissed or set aside on the grounds that he has made an error at Law in regards to his interpretation of section 98C subparagraph 98C(1) & (2) of the Child Support (Assessment Act) 1989 in that he erred in establishing that he had proven one, or more than one, grounds for departure and that it was just & equitable to make his particular determination.
This matter is addressed at paragraphs 25-30 of the applicant’s affidavit. The applicant asserts that the Tribunal unfairly relied upon information earlier provided by Mr Holman which consisted of hastily provided estimates. He refers to addendum E to his affidavit which is the subsequent statement of financial affairs which, of course, was not before the Tribunal.
The applicant further asserts that the Tribunal gave insufficient weight to his financial position and that his employment circumstances had changed and that this would impact upon his earnings and allowances.
This matter can be dealt with shortly. The Registrar is correct to submit that this matter merely goes to challenge factual findings made by the Tribunal. In fact, the Tribunal was well aware of the three-step process indicated by ss.98C and 117 of the Child Support (Assessment) Act 1989. The Tribunal first questioned whether there was a ground of departure and determined, as earlier set out, that there was. The Tribunal then considered whether a departure would be just and equitable at paragraphs 19-28 of its decision and considered whether a departure order would be otherwise proper at paragraphs 29 and 30 of the decision.
The claim insofar as it is advanced under this ground is, essentially, a simple merits review and does not raise any error of law.
Ground 3 That Mr J failed to take into account section 71C of the Child Support (Registration and Collection) Act 1988.
This matter does not appear to be addressed in the applicant’s affidavit. Section 71C of the Registration and Collection Act did not arise in the context of the hearing before the Tribunal, and the Tribunal, therefore, was not required to deal with it and did not do so.
Ground 4 That as noted in paragraph 23 of Mr J’s decision, he has erred by agreeing that my income was an estimate only but has then stated I had capacity to make further contributions without seeking further assistance or clarification of my income and expenses.
I note, as the Registrar’s written submissions point out, that the applicant forwarded his financial statement in haste on 18 November 2013 (paragraph 2 of the applicant’s affidavit).
The applicant had until the hearing on 18 February 2014 to provide more detailed or accurate information. The decision of the Tribunal, and for that matter the applicant’s affidavit, does not suggest that any application for any sort of adjournment was ever pressed by the applicant at the hearing. In the circumstances the Tribunal’s finding at paragraph 23 stated that:
“… Mr Holman stated, and the Tribunal accepts, that the figures he provided are estimates. Mr Holman also has debts which need to be repaid over time. However, on the evidence provided, the Tribunal is satisfied that Mr Holman has some capacity to make a further contribution towards the children’s expenses.”
In my view, the way the Tribunal dealt with this aspect of the matter does not reveal any error of law.
Ground 5 That Mr J has further erred in his calculations that I have $165 in excess income per week after expenses. That Mr J utilised various figures & calculations to come to his total but are incorrect when scrutinised.
Once again, I accept the submission made by the Registrar that this ground invites the Court to impermissibly review or interfere with the findings of fact made by the Tribunal.
I also note the figures set out at paragraph 36 of the Registrar’s written submissions. What the Tribunal quite correctly found was that on the figures the applicant had given there was a surplus of $165. The Tribunal, however, accepted these were estimates, but the ultimate finding was that:
“Mr Holman has some capacity to make a further contribution towards the children’s expenses.”
This factual finding does not reveal error of law.
Ground 6
The additional ground was advanced orally. At Court the applicant asserted that the Tribunal’s decision was unlawful as it sought to override an earlier decision of Judge Baumann. He tendered exhibit A1 which was an application to the Court made by Ms Vinge on 25 March 2013. That application sought final orders on a broad range of matters and sought interim orders relating to passports for the children and payment of orthodontist, school camp and speech therapy expenses.
Exhibit A2 are orders made by Judge Baumann on 31 May 2013 which made passport orders and other travel related orders and otherwise dismissed the applications.
There is nothing in the materials filed by the applicant that suggests that the decision of Judge Baumann in any way disposed of the parenting orders or the child support orders that were contained in that application. As the Registrar submits, there is no question of res judicata or issue estoppel. This alleged ground of appeal is not made out.
Conclusion
I have not dealt with the oral submissions made at Court. The oral submissions made by the applicant were essentially concerned with the new ground to which I have referred. The submissions made by
Ms Vinge were to the effect that Judge Baumann told her that she had made a mistake and that her application by way of child support should have proceeded through the Social Security Appeals Tribunal. She otherwise made criticisms of the failure of the applicant to include financial resources in the material he had given to the Tribunal.
In reply the applicant took issue with tax as asserted by Ms Vinge and asserted that she had given false information to the Tribunal and was misleading the Court. None of these submissions, in my view, take the matter any further. It is quite apparent that the applicant and respondent are involved in an ongoing and bitter dispute. The child support issues are just a part of it.
More importantly, none of the matters alleged by the applicant by way of criticism of the Tribunal’s decision disclose any errors of law, and it follows that the appeal must be dismissed.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.
Associate:
Date: 22 October 2014
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