Hoskings and Hoskings and Anor
[2015] FCCA 1926
•7 August 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HOSKINGS & HOSKINGS & ANOR | [2015] FCCA 1926 |
| Catchwords: CHILD SUPPORT – Administrative Appeals Tribunal (Social Services and Child Support Division) – appeal from a decision of the AAT in a child support first review. |
| Legislation: Child Support (Registration and Collection) Act 1988, ss.110b, 103c, 103(3), 103c(4) Administrative Appeals Tribunal Act 1975, s.44 |
| Haritos v Commissioner of Taxation [2015] FCAFC 92 Child Support Registrar & Crabbe and Anor (2014) 51 Fam LR |
| Applicant: | MS HOSKINGS |
| First Respondent: | MR HOSKINGS |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | MLC 3854 of 2011 |
| Judgment of: | Judge Jones |
| Hearing date: | 26 June 2015 |
| Date of Last Submission: | 26 June 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 7 August 2015 |
REPRESENTATION
| Solicitors for the Applicant: | Self Represented |
| Solicitors for the First Respondent: | Self Represented |
| Solicitors for the Second Respondent: | Mr Maat |
ORDERS
The applicant’s Amended Notice of Appeal filed on 2 March 2015 is dismissed.
The Second Respondent file and serve an Outline of Submissions regarding costs by 21 August 2015.
The Applicant file and serve an Outline of Submissions regarding costs by 4 September 2015.
IT IS NOTED that publication of this judgment under the pseudonym Hoskings & Hoskings & Anor is approved pursuant to s.110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 3854 of 2011
| MS HOSKINGS |
Applicant
And
| MR HOSKINGS |
First Respondent
| CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By her Amended Notice of Appeal (Child Support) filed on 2 March 2015, the applicant appeals from a decision of the Social Security Appeals Tribunal (“the Tribunal”) dated 23 July 2014. In that decision the Tribunal affirmed the decision under review, the effect of which is, that there was no change in the child support assessment on the basis of extra costs incurred as a result of the children attending private school (not including school fees). The applicant seeks orders including that the Tribunal decision be set aside and the application be remitted to the Tribunal. In her notice of appeal the applicant raises five grounds of appeal in support of her application, each of which is dealt with below.
The Child Support Registrar (“the Registrar”) seeks orders that the appeal be dismissed and that the applicant pay its costs in accordance with Division 2 of Part 2 of Schedule 1 of the Federal Circuit Court Rules 2001.
Legal principles
This appeal is brought pursuant to s.110B of the Child Support (Registration and Collection) Act 1988 (“CSRC Act”). That section provides:
“s.110B A party to a review by the SSAT under Part VIIA may appeal to a Court having jurisdiction under this Act, on a question of law, from a decision of the SSAT on that review under section 103S.”
Section 110B is in the same terms as s.44 of the Administrative Appeals Tribunal Act 1975 (“AAT Act”) aside from the reference to the SSAT.
In Haritos v Commissioner of Taxation [2015] FCAFC 92 (“Haritos”), the Full Court comprising a five member Bench, considered the authorities regarding the approach to be adopted by Courts to s.44 of the AAT Act and held as follows:
“62. We now turn to consider the more general questions raised by the appeal in relation to s.44 of the AAT Act. In summary, our conclusions are as follows:
(1) The subject-matter of the Court’s jurisdiction under s 44 of the AAT Act is confined to a question or questions of law. The ambit of the appeal is confined to a question or questions of law.
(2) The statement of the question of law with sufficient precision is a matter of great importance to the efficient and effective hearing and determination of appeals from the Tribunal.
(3) The Court has jurisdiction to decide whether or not an appeal from the Tribunal is on a question of law. It also has power to grant a party leave to amend a notice of appeal from the Tribunal under s.44.
(4) Any requirements of drafting precision concerning the form of the question of law do not go to the existence of the jurisdiction conferred on the Court by s.44(3) to hear and determine appeals instituted in the Court in accordance with s. 44(1), but to the exercise of that jurisdiction.
(5) In certain circumstances it may be preferable, as a matter of practice and procedure, to determine whether or not the appeal is on a question of law as part of the hearing of the appeal.
(6) Whether or not the appeal is on a question of law is to be approached as a matter of substance rather than form.
(7) A question of law within s. 44 is not confined to jurisdictional error but extends to a non-jurisdictional question of law.
(8) The expression “may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal” in s.44 should not be read as if the words “pure” or “only” qualified “question of law”. Not all so-called “mixed questions of fact and law” stand outside an appeal on a question of law.
(9) In certain circumstances, a new question of law may be raised on appeal to a Full Court. The exercise of the Court’s discretion will be affected not only by Coulton v Holcombe[1986] HCA 33; 162 CLR 1 considerations, but also by considerations specific to the limited nature of the appeal from the Tribunal on a question of law, for example the consideration referred to by Gummow J in Federal Commissioner of Taxation v Raptis [1989] FCA 557; 89 ATC 4994 that there is difficulty in finding an “error of law” in the failure in the Tribunal to make a finding first urged in this Court.
(10) Earlier decisions of this Court to the extent to which they hold contrary to these conclusions, especially to conclusions (3), (4), (6) and (8), should not be followed to that extent and are overruled. Those cases include Birdseye v Australian Securities and Investments Commission [2003] FCA 232; 76 ALD 321, Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244, 133 FCR 290, Etheridge, HBF Health Funds and Hussain v Minister for Foreign Affairs [2008] FCAFC 128; 169 FCR 241.”
I respectfully adopt the exposition by the Full Court in Haritos to the appeal before me pursuant to s.110B of the CSRC Act.
I propose to determine the issue as to whether or not the appeal is on a question of law as part of the hearing of this appeal.
As to the determination of whether there is a question of law raised by the appeal, in Child Support Registrar & Crabbe and Anor (2014) 51 Fam LR, the Full Court of the Family Court stated at [54]:
“[54] The following principles emerge from these authorities and have relevance to our decision as to whether the Federal Magistrate erred in his review of the SSAT decision in a manner which requires our intervention:
§The question of whether there is evidence to support a finding of fact or an inference drawn from findings of fact is a question of law (Al-Miahi).
§The making of a finding of fact or the drawing of an inference in the absence of evidence is an error of law (Al-Miahi).
§A wrong finding of fact is not an error of law (Al-Miahi).
§A finding of fact based on reasoning that is “demonstrably unsound” or an “illogical course” or a “faulty process” of reasoning is not an error of law (Al-Miahi).
§Judicial review is not to be overzealous in seeking to find inadequacy of reasoning by an administrative decision maker; the review of the reasons of an administrative decision maker must not be turned into a reconsideration of merits of the decision (Wu Shan Liang).
§Section 103X(3)(B) of the Registration and Collection Act (by analogy with s 430 of the Migration Act) requires the SSAT to do no more than set out the findings which it did make on facts which it considered material to the decision which is made (Yusuf).”
(footnotes omitted)
The essential nature of the task of a Court reviewing a decision of an administrative tribunal was explained in Collector of Customs v Pozzolanic (1993) 43 FCR 280, where the Full Court of the Federal Court (Neaves, French and Cooper JJ) said, at 287-288:
“[t]he 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 limits within which the jurisdiction is conferred required that it be exercised with restraint. Only in exceptional circumstances should the decision of the tribunal not be the final decision: Blackwood Hodge (Australia) Pty Ltd v Collector of Customs (1980) 47 FLR 131 at 145 (Fisher J); FCT v Cainero 88 ATC 4427 (Foster J). A s the Full Court said in Repatriation Commission v Thompson (1988) 82 ALR 352 at 357:
“… the nature of the task of this court is clear. It is to leave to the tribunal of fact decisions as to the facts and to interfere only when the identified error is one of law.”
Appeal Grounds
Ground One
The applicant’s first ground of appeal is as follows:
“That the Social Security Appeal Tribunal allowed the liable parent to attend the hearing by telephone without giving due consideration to the provisions of Section 103C(4) of the Child Support (Registration & Collection) Act. Or if they did give due consideration did not set their reasons in their decision.”
At [10] of the Tribunal’s decision record, the Tribunal stated:
“The hearing was held on 23 July 2014 in relation to Ms Hoskings’ application. The Tribunal received oral evidence from Ms Hoskings who participated in person. Mr Hoskings participated in the hearing by conference telephone.”
Section 103C is located in Division 4, Part VIII of the CSRC Act, which deals with reviews by the Tribunal. Division 4 is concerned with submissions to the Tribunal other than by the Registrar. Section 103C(3) relevantly provides:
(3) The SSAT Principal Member may determine that submissions to the SSAT by a party or a party's representative are to be made by telephone or by means of other electronic communications equipment.
(4) Without limiting subsection (3), the SSAT Principal Member may make a determination under that subsection in relation to an application if:
(a) the application is urgent; or
(b) the party lives in a remote area and unreasonable expense would be incurred if the party or the party's representative had to travel to the place at which the hearing is to be held; or
(c) the party is unable to attend the hearing because of illness or infirmity; or
(d) the party has failed to attend the hearing and has not indicated that he or she intends to attend the hearing.
The applicant submits that the Tribunal failed to give due consideration to the relevant subsections of s.103C in that there “is no indication (in the record of decision) that the other party fitted any off (sic) the above criteria or the Tribunal ever put their mind to it. There is a basic concept that the parties should attend a hearing unless there is a good reason why they should not. A Tribunal can then have an opportunity to view the person giving evidence and draw conclusions about his/her bona fides first hand.”[1]
[1] Submission by Applicant filed 18 March 2015 at [1]
The Registrar submits that this ground is misconceived as a decision made under s.103C(3) of the CSRC Act is a decision of the SSAT Principal Member whereas an appeal under s.110B is confined to an appeal on a question of law by a party to a review from a decision of the Tribunal on the review. The Registrar submits that there is no appeal available under s.110B from a decision of the SSAT Principal Member. In any event, the Registrar argues, a SSAT Principal Member is not confined in making his/her decision under s.103C(3) to the matters specified in subsection 103C(4).
I agree with the Registrar’s submission that s.110B confines the scope of an appeal to a decision of the Tribunal on a review. The terms of s.103C(3) make it clear that the decision as to whether a party (or their representative) may appear by telephone or other electronic means, is a decision of the Tribunal’s Principal Member.
In Manchester & Manchester (SSAT Appeal) [2010] FMCAfam 947, his Honour Judge Halligan considered the question whether the exercise by the Principal Member of the power under s.101(5)(c) of the CSCR Act, to remove a party from a proceeding was susceptible to an appeal to the Court under s.110B. I am satisfied that his Honour’s reasoning is equally applicable to s.103C. His Honour concluded, having considered the relevant authorities, at [75] to [80]:
“75.In my view, Part VIIA of the Registration Act draws a clear distinction between the Principal Member and the SSAT in conferring various powers and functions in relation to an application for review.
76.The clear distinction drawn in Part VIIA between the Principal Member and the SSAT and the failure to mention decisions of both in s.110B must be for a reason, and in my view that reason is that it was not intended to create any right of appeal to a Court on a question of law under s.110B from a decision of the Principal Member in relation to a review.
77.In my view, the structure of the Administration Act and the Registration Act makes clear that a reference to the Principal Member cannot be synonymous with a reference to the SSAT. The Principal Member may only constitute the SSAT for a review if subject to a direction in writing by himself or herself under Clause 10, Schedule 3 of the Administration Act. But when so directed, the Principal Member is indistinguishable from any Senior Member, Assistant Senior Member or other member subject to a written direction under Clause 10. That is, a member or members of the SSAT, including the Principal Member, directed to constitute the SSAT for a review is or are the SSAT for that review, but not otherwise, and their decisions are decisions of the SSAT only when so constituted.
78.In my view, the “decision of the SSAT” to which s.110B refers is a decision of the SSAT as constituted pursuant to Clause 10, Schedule 3 of the Administration Act and s.103M of the Registration Act for the proceeding under Part VIIA in which the decision is made.
79.This view is consistent with the decisions in Byrne, McCormack and Simon.
80.Both decisions the father appeals against were made in the exercise of a power conferred on the Principal Member, albeit one was exercised by the Principal Member and the other by a delegate of the Principal Member. I am satisfied neither is a decision of the SSAT within the meaning of s.110B. I am therefore satisfied there is no right to appeal from either decision under s.110B of the Registration Act, and hence the father's appeal must be dismissed.”
In my opinion, the scope of an appeal under s.110B of the CSRC Act is confined to an appeal from a decision of the Tribunal and not a decision of a Principal Member of the Tribunal exercised pursuant to s.103C. Consequently, the applicant’s first ground of appeal is not competent. This is not to say that a question of law does not embrace an alleged ground that the Tribunal failed to accord an applicant procedural fairness and/or natural justice. However, this is not how the applicant has particularised her ground of appeal. It should be noted, in addition, that the discretion given a Principal Member of the Tribunal under s.103C(3) is a broad discretion and, by the opening words of subsection (4), is not confined by the matters specified in subsection (4).
Accordingly I find that this ground of appeal does not raise a question of law.
Ground Two
The applicant’s second ground is as follows:
“That the Social Security appeal Tribunal misinterpreted the definition of the term “special circumstances” in the case of Gyselman v Gysleman [1992] FLC 92-279 and therefore misdirected themselves.”
The applicant’s written submission in relation to this ground is as follows:[2]
[2] Ibid at [2].
“The special circumstances of this case fit within the definition and the act. This is a case where the father has a significant income and can afford to pay the school fees requested.
Section 117 (6) (a) of the Child Support (Assessment) Act states:
section 117 (3C) in determining whether would be just and equitable…………..
117 (6)(a) the manner in which the child is being, and which the parents expected the child to be, cared for, educated or trained;
It is my submission that the court must accept that both parties want their children educated privately. The Tribunal appears to have decided that the requirement to pay for specific and specified private education expenses can somehow be offset against the father’s payment he is already making. The act requires the court or the child support agency to consider the education chosen by the parties for the children be in private or public.”
It is appropriate to set out, in some detail, the Tribunal decision.
In accordance with s.98C(1)(b) of the Child Support Assessment Act 1989 (“CSA Act”), the Tribunal said, at [12], that the issues for determination were:
(a)whether there is a ground established to depart from the administrative assessment of child support; and
(b)whether it is just and equitable and otherwise proper to make a particular departure determination.
The Tribunal commenced its review by considering whether a ground existed to depart from administrative assessment. At [16] it stated:
“[16] The grounds for departure are set out in subsection 117(2) of the Act. Each ground is prefaced by the words “in the special circumstances of the case”. The meaning of this expression is not defined in the Act, but the Family Court in Gyselman & Gyselman (1992) FLC 92-279 has held: “… as a generality it is intended to emphasise that the facts of the case must establish something which is special or out of the ordinary. That is, the intention of the Legislature is that the court will not interfere with the formula in the ordinary run of cases.” Likewise, in Phillippe and Phillippe (1978) FLC 90-433 the Court held that “special circumstances” are “facts peculiar to the particular case which set it apart from other cases”. In considering whether the relevant grounds set out in subsection 117(2) were established in this case the Tribunal was guided by these cases.”
The Tribunal identified the applicant’s single ground for departure under section 117(2)(b)(ii) of the CSA Act which provides:
(b) that, in the special circumstances of the case, the costs of maintaining the child are significantly affected:
………………………
(ii) because the child is being cared for, educated or trained in the manner that was expected by his or her parents;
The Tribunal noted that in deciding this matter it was required to consider and determine whether both parents expected the children would be educated privately and whether the circumstances of the case were “special” or “out of the ordinary” in addition to the costs incurred being significant, such that they impact on the overall costs of maintaining the child (at [18]).
The Tribunal stated that there was no dispute that both parents expected the children would be educated privately having regard to orders made by the (then) Federal Magistrates Court of Australia on 22 December 2011. Clause 13 of those orders provided as follows:
“That the husband shall be responsible for one half of all future school fees for (omitted) School until such time as they have finished their primary and secondary school education.”
The Tribunal stated that it was clear that the Court order did not extend to associated costs of education such as books, stationery and uniforms and it was these items which Ms Hoskings was requesting the Tribunal to consider under s.117(2)(b)(ii) of the CSA Act .
The Tribunal noted that Ms Hoskings provided documentary evidence of the costs associated with the private education of the three children for the 2013 calendar year and 2014 year to June 2014. The Tribunal said (at [21]):
“……….The costs included school shoes, sport shoes, school uniforms, uniform alterations and dry cleaning, specific sport accessories, school books, stationery, iTunes cards, iPad accessories and specific attire required for ski and bike camps. Ms Hoskings summarised the additional costs she incurred for X, Y and Z as follows:
2013 school year - $3,343
2014 school year to June 2014 - $2,764
Ms Hoskings gave oral evidence that there is no indication that the costs by December 2014 would be any more than those incurred in the 2013 school year.”
The Tribunal then set out the oral submissions of both parties at [22] to [25].
With respect to the first issue it had identified for its determination (see [22] above), the Tribunal stated that the applicant was required “to establish firstly that the cost she incurs for the girls over and above those specified in the school accounts, create special circumstances in comparison to the average child.”
Having considered the submissions of the parties and the Child-Support Guide (at 2.6.9) in relation to this ground of departure, the Tribunal stated that it was not satisfied that the types of expenses, on the basis of which departure was sought, were any different from those of children attending government schools and completing the same subjects. It stated at [26] to [27]:
“[26] The Tribunal is satisfied that Mr Hoskings contributed equally to the actual costs of camps and excursions in addition to the iPad through payment of the school accounts. In addition he has contributed equally to the costs of the bike. The Tribunal is not persuaded that the costs incurred by Ms Hoskings in relation to other necessities for the camps such as a torch, first aid kit, thermals, etc., are any different to the types of items necessary for most camps attended by Year 9 students in either a private or government school.
[27] In relation to costs of books, stationery and uniform, the Tribunal is satisfied that these costs would not be any different to those incurred by parents of children who attend a government school and completed the same subjects. In addition, if a child did not play more than one sport at a government school, it is common that a child would play a sport in a local club. Therefore, the Tribunal was not convinced that the costs for equipment and uniforms for two sports per year created circumstances which were out of the ordinary, as the formula assessment takes into account these types of costs to determine the costs of children. Ms Hoskings has not demonstrated that special circumstances exist in this case and the Tribunal finds accordingly. Therefore the ground at subsection 117(2)(b)(ii) is not established.”
In relation to this ground, the applicant’s argument is that the father has significant income and can afford to pay the school costs that she requests he pay. The argument misconceives the issues which the Tribunal was required to determine. Firstly, it was required to satisfy itself that in the special circumstances of the case the ground for departure relied on by the applicant has been established. The income earning capacity of the father is not relevant to the determination of this issue given the ground upon which the applicant seeks a departure order.
The applicant’s submission that the Tribunal appears to have decided that the requirement to pay for specific and specified private education expenses can somehow be offset against the payments the father is already making, in my opinion, misapprehends the statement made by the Tribunal. This was to the effect that the formula assessment (upon which the father pays child support) takes into account the type of costs associated with equipment and uniforms for two sports per year.
The applicant also relies on s.117(6)(a) of the CSA Act, arguing that both parties want their children to be educated privately and, by inference, arguing that the Tribunal failed to take this into account when considering whether in the special circumstances of the case the ground for departure relied on by the applicant has been established. This argument, in my opinion, misconceives the law.[3] This is because, as a Registrar points out in its written submissions, consideration of whether or not any of the requirements of s.117(6) of the CSA Act have been met, occurs once, and only once, the Tribunal is satisfied that in the special circumstances of the case the ground for departure relied on by the applicant has been established. In other words, the section is relevant, only when the Tribunal considers the second issue; namely, whether a departure would be just and equitable.
[3] Outline of Submission of the Child Support Registrar filed 15 April 2015 at [24].
Otherwise, the applicant does not explain how she asserts that the Tribunal failed to apply or misinterpreted the term “special circumstances.” I am satisfied that the Tribunal correctly applied the relevant test in considering whether in the special circumstances of the case the ground for departure relied on by the applicant has been established. It specifically directed itself to the question whether the costs, in relation to which a departure was sought, were out of the ordinary or set it apart from other cases. The Tribunal found that they did not. I concur with the Registrar’s written submission that this was a finding of fact and does not raise a question of law. [4]
[4] Ibid at [23].
Accordingly, I find that this ground does not raise a question of law.
Grounds 3 and 4
I will consider grounds three and four of the applicant’s Amended Notice of Appeal together. The issue raised by both grounds is that the Tribunal erred by making findings without the evidence to make these findings.
Ground three is as follows:
“At paragraph 26 of their decision, the Tribunal incorrectly asserted that the requirements for school camps at private schools or government schools (sic) without explaining why they made the statement or the evidence relied on to make the statement.”
Ground four is as follows:
“At paragraph 27 of their decision, the Tribunal incorrectly made assumptions about the costs comparison of school sports by private schools and public and that a child, “would play sport in a local club”. The Tribunal has no grounds to make that assumption.
In her written submissions with respect to ground three the applicant argues that, “The Tribunal makes the statement without any explanation to substantiate the statement or any reason given as to why the statement is significant and why it relates to my situation. They appeared not to draw on any studies or other sources to make these claims.”[5]
[5] Submission by Applicant filed 18 March 2015 at [3].
With respect to ground four, the applicant submits that, “The Tribunal cannot use a reason that they “assumed” children in public schools would play sport at local clubs and therefore could not “assume” that sports costs would be similar.” [6]
[6] Ibid at [4]
The Registrar submits that, “both grounds three and four …. amount to an invitation to review the Tribunal’s findings of fact which, absent an error of law, is not permissible in an appeal on a question of law.”[7]
[7] Outline of Submission of the Child Support Registrar at [26].
The Registrar concedes that, if a decision-maker makes a finding of fact for which there is a complete absence of evidence, then that is an error of law: Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390, at 418, [91] per Hayne, Heydon, Crennan and Kiefel JJ.
However, the Registrar argues that:
a)Section 103N(2) of the CSRC Act enables the Tribunal to consider other matters or facts within its own knowledge: Australian Postal Corporation v D’Rozario (2014) 222 FCR 303at [70];
b)a specialist Tribunal may rely on its specific expertise or acquired knowledge: Muin v Refugee Review Tribunal and Ors (2002) 190 ALR 601 at [291]; Wheldon v Dinh [2010] FamCA 740 at [571];
c)the Tribunal is recognised as a specialist tribunal which may rely on its particular knowledge and expertise with respect to child support: Kindree & CSR and Anor (SSAT Appeal) [2010] FMCAfam 357 at [50]:
Section103N of the CSRC Act provides:
Hearing procedure
(1) The SSAT, in reviewing a decision under this Part:
(a) is not bound by legal technicalities, legal forms or rules of evidence; and
(b) is to act as speedily as a proper consideration of the review allows.
(2) The SSAT may inform itself on any matter relevant to a review of a decision in any manner it considers appropriate.
Note: The SSAT Principal Member may give directions as to the procedure to be followed in connection with reviews (see section 103ZA).
In considering these grounds of appeal, it must be noted that the Tribunal was considering the documentary evidence provided by Ms Hoskings regarding the costs incurred for uniforms (including sports uniforms) books, stationery, specific attire for ski and bike camps (see [28] above).
Further, the Tribunal was considering the oral evidence given by Ms Hoskings and referred to at [22] of its decision record as follows:
“[22] In response to a question from the Tribunal as to why the costs incurred for the girls would be greater than any other child completing the same subjects and attending school camps in a government school, Ms Hoskings was adamant that the expectation in government schools to have the necessary uniforms and equipment was not there. She further stated that the girls play only at school and are compelled to choose a different sport in winter and summer, hence requiring different equipment and uniforms, which she understands is not the case in a government school.”
The Tribunal considered the evidence in the context where it was required to determine whether those costs were “special or out of the ordinary”.
The Tribunal was satisfied, because of the documentary evidence of statements of account issued by the children’s school and paid by the parties, that Mr Hoskings contributed equally to the actual costs of camps and excursions in addition to the iPad and to the costs of a bike (at [26]).
The Tribunal turned then to consider whether the additional costs which the applicant maintained had been incurred by her for the children’s education were “special or out of the ordinary”. The Tribunal firstly considered costs, identified by Ms Hoskings as having been incurred by her children for other necessities at camp, and concluded that there was not any difference to those necessary for any school camps attended by Year 9 students (at [26]). This statement is the subject of the applicant’s ground three of appeal.
The applicant objects to two statements then made by the Tribunal (at [27]). Firstly, that the costs of books, stationery and uniform (identified by Ms Hoskings as having been incurred by her children) would not be any different to those incurred by parents of the child who attend a government school and completed the same subjects. Secondly, that if a child did not play more than one sport at a government school, it is common that a child will play a sport in a local club.
The Tribunal then stated it “was not convinced that the costs for equipment and uniforms for two sports per year created circumstances which were out of the ordinary, as a formula assessment takes into account these types of cost to determine the costs of children” (at [27]).
The Tribunal then concluded that the applicant had “not demonstrated that special circumstances exist in this case and the Tribunal finds accordingly. Therefore the ground at subsection 117(2)(b)(ii) is not established” (at [27]).
It is not uncommon in statutes which provide for the establishment of specialist tribunals to allow those tribunals, in the conduct hearings, to inform themselves about any matters relevant to the hearing which that tribunal considers relevant or appropriate. In Australian Postal Corporation v D’Rozario (2014) 222 FCR 303, Justice Jessup, referring to section 590 of the Fair Work Act 2009 which provided that the Fair Work Commission may inform itself about any matter before it in the manner that it considered appropriate, held that it was competent for the Fair Work Commission to bring to the disposition of the case its knowledge in relation to the “trend” of cases in analogous matters (at [70]).
In a similar vein, in relation to the Refugee Review Tribunal, established to conduct merits reviews under the Migration Act 1958, Callinan J stated in Muin v Refugee Review Tribunal and Ors (2002) 190 ALR 601 at [291]:
“The Tribunal is not bound by the rules of evidence. As this case shows, it goes to many sources of information and acts upon material that Courts would not ordinarily receive and use. The Tribunal is a specialist Tribunal: its members hear many cases and can be expected to have accumulated a great deal of knowledge, so far as it is ascertainable, about other peoples and other countries. And the Act makes clear distinctions, in the ways to which I have referred, between what the Tribunal must do and what it may, in its discretion, do in relation to the gathering, hearing and use of evidence.”
In Wheldon v Dinh [2010] FamCA 740, his Honour Justice Murphy stated at [571]:
“115.Further, as is evident from the other decision footnoted by his Honour, the distinction drawn by Full Court authority in this Court is a distinction consistent with the common law:
229 According to Cross on Evidence at [3135] there is a distinction between “general expertise which enables the specialist Tribunal to understand quickly the evidence before it and to draw appropriate inferences from the evidence, and special knowledge which permits it to assert the existence of a particular fact.” In the latter case, according to Cross, “it is not proper for the Tribunal to act upon such special knowledge without disclosing it to the parties and affording them the opportunity to rebut it or qualify by argument or by adducing evidence of the existence of that particular fact or by assigning a different significance to it.”
(ICI Australia Operations Pty Limited (now known as Orica Australia Pty Limited) & 1 Ors v The WorkCover Authority of New South Wales [2004] NSWCA 55 at par 229)”
In Kindree & CSR and Anor (SSAT Appeal) [2010] FMCAfam 357, Federal Magistrate Riethmuller, as his Honour then was, commenced by stating that the Tribunal is not a Court, nor subject to the rules of evidence and extracted the then provisions of s.103N. Subsection (2) was in the same terms as the present subsection 103N(2) of the CSRC Act.
His Honour was considering an appeal in relation to a decision of the Tribunal for a departure order on the ground that s.117(2)(c) of the CSA Act :
“(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:
………………………………
(ib) because of the earning capacity of either parent; or”
His Honour stated at [51] to [63]:
“51.Whilst the rules of evidence do not apply, there must nonetheless be some evidentiary foundation for the findings of the availability of employment of the relevant type.
52.At paragraph 32 the Tribunal outlines the evidence it had before it, saying:
[32] The Tribunal considered the evidence provided by both [the appellant] and [the second respondent] and the information available on the CSA file.
53.As there was no evidence of the parties or in the CSA files on this issue, the key question in this case appears to be whether the availability of public service employment is within the realm of common knowledge and thus able to be relied upon by the Tribunal.
54.There does not appear to be any evidentiary foundation for the finding that there are regular advertisements for public service positions in the area in which the appellant lived, as there is nothing in the Tribunal documents, nor any specific reference to such evidence in the decision. Similarly, the income amount selected does not appear to relate to any particular pay scale, nor a statistical average of the income earned by public servants in a particularly category, or even full time employees generally. The reference to the availability of public service employment and pay rates by the Tribunal was, at best, the Tribunal relying on its general knowledge.
55.In industrial cases before specialist commissioners or arbitrators, a less restrictive approach has sometimes been taken as to general knowledge. For example, in J & H Timbers Pty Ltd v Nelson (1971) 126 CLR 625 at 651, Gibbs J noted:
The Commission can use its general knowledge of the labour market, but it is not expected to have, or if it has cannot use, particular knowledge of the facts of an individual case (cf. Reynolds v Llanelly Associated Tinplate Co., Ltd (4)).
56.In Reynolds v Llanelly Associated Tinplate Co Ltd [1948] 1 All ER 140, the Court of Appeal said:
[A]lthough the arbitrator was entitled to use his knowledge, properly applied and within reasonable limits, of matters which were within the common knowledge of persons in the district, the present was a special and individual case, and the arbitrator must, wrongly, have based his decision on some particular knowledge which he had relating to the possibility of a workman of such skill and age obtaining work at so high a rate of wages.
57.More recently, in Secretary, Department of Social Security v Murphy [1998] FCA 809, Drummond J, considering the question with respect to the members of the AAT, said:
Material necessary to support the Tribunal’s decision will generally have been provided by the parties themselves. But it can be obtained by the Tribunal from its own inquiries: see s.33(1)(c) of the AAT Act. It would also be open to the Tribunal to satisfy itself as to a critical fact by noticing the existence of that fact, if it were a notorious fact which Tribunals bound by the rules of evidence could notice either under the common law doctrine of judicial notice or under statutory provisions such as s 11 [of] the Evidence Act 1995 (Cth). … There is also an area in which the Tribunal can rely upon its own expertise to acquire information necessary to the making of its determination.
…
Where the Tribunal obtains material of importance to its decision otherwise than from the parties, it will be a breach of the rules of natural justice if the Tribunal fails to alert the party affected that it has obtained material of potential importance to its decision in sufficient time to give that party an opportunity to deal with that material. Such a breach would, of course, result in the decision being affected by appealable error of law. … The Tribunal did not say anything in its reasons to suggest it had sought out for itself information which might have justified what it had to say about the matter now in question. [Emphasis added]
58.Whilst the SSAT is a specialist Tribunal, its speciality lies in social security and child support law. It is not an industrial Tribunal. It is difficult to conclude that it has specialist expertise with respect to the availability of employment. It appears to me that the comments of Drummond J in Secretary, Department of Social Security v Murphy [1998] FCA 809 are apposite and I ought to apply them in this case.
59.Whilst the appellant is often the person possessed of the best evidence (that of diligent search and application for employment, as well as exploration of options for self employment in appropriate cases), its absence does not prove availability of employment. A bare allegation of employment availability, without an appropriate response by the appellant, is not sufficient as this would be proof without any evidentiary foundation. This is a practical reflection of the fact that it is logically possible that there may be no work opportunities for a person even if they have not sought work.
60.In the absence of any evidence as to the availability of employment of the relevant type, the failure of the appellant to seek that type of employment does not show he has an earning capacity, simply that he had not explored a possible option. The relevant question has two parts:
a) whether income earning opportunities are available, and
b) whether he has made appropriate endeavours.
61.Only slight or circumstantial evidence of opportunity to work may be sufficient to shift the persuasive onus back to the appellant, particularly in a case where there is a lack of appropriate endeavours by the appellant to obtain employment. However lack of appropriate endeavour without any evidence at all of available opportunity to work is not sufficient to support findings of earning capacity.
62.I have considered whether the Tribunal have referred to the public service positions and income of $55,000 per annum in order to take a cautious approach, given that the appellant’s last income as a solicitor was around double this rate. However, there is no finding that he could earn an income as a solicitor at the previous rate, nor evidence of average earnings of employed solicitors in the region.
63.I must therefore find that this ground of the appeal succeeds and the appeal must be allowed. Whether the outcome is better or worse for the appellant once the matter is reheard will depend upon the actual evidence before the Tribunal, including any evidence the Tribunal gathers under s.103N(2) on the re-hearing”.
In relation to the applicant’s articulation of appeal ground three, the Tribunal was at [26] only considering the necessities of camping trips for Year 9 school students (such as torches and first aid). It was not, as the applicant seems to assert, comparing the totality of camping trip expenses as between those incurred by the applicant’s children at their private school and government schools generally. In [27], the subject of appeal ground four, the Tribunal was undertaking a comparison of the costs of books, stationery and uniform (including sports uniforms and equipment) incurred by the applicant’s children at their private school and government schools generally.
There is no doubt that the Tribunal’s decision that the applicant had not demonstrated that special circumstances exist in this case flowed from its comparisons with government schools. I am satisfied that the Tribunal did not identify in its decision record the particular information upon which it based this comparison.
I am satisfied that, accepting that the Tribunal is a specialist Tribunal in the area of social security in child-support law, the issues to be determined must therefore be:
a)whether the costs incurred by parents of private and government schools in relation to the necessities of camping trips, books and uniforms and sporting activities are matters about which the Tribunal can be said to have specialist expertise; and
b)whether the Tribunal afforded the applicant an opportunity to address this information or specialist expertise.
I am satisfied that the Tribunal, as a specialist Tribunal in the area of social security in child-support law, in the course of reviewing applications for departure orders on the ground that in the special circumstances of the case, the costs of maintaining the children are significantly affected because they are being educated in the manner expected by the parents, would have acquired information and developed an expertise with respect to the costs associated with sending children to private and public schools, including extra-curricular activities
On balance, I am satisfied that, on the issue of costs incurred by parents of children who attend private schools and government schools in the areas relied on by the applicant, the Tribunal can be said to have specialist expertise. In my opinion, the Tribunal was entitled to rely on that expertise in stating it was “not persuaded that the costs incurred by Ms Hoskings in relation to other necessities for camps such as torches, first aid kits, thermals, etc., are any different to the types of items necessary for most camps attended by year nine students in either private or government school.” (at [26]) (my emphasis). I am satisfied that the reasoning of the Tribunal, read in context, makes it clear that it drew on this information in applying the relevant test in determining whether there were special circumstances.
In my opinion, the Tribunal was entitled to rely on its expertise in stating it was satisfied that the costs of books, stationery and uniform (which the applicant relied on) “would not be any different to those incurred by parents of children who attended a government school and completed the same subjects.” (at [27]) In my opinion, in making its finding that it was “not convinced that the costs for equipment and uniforms for two sports per year created circumstances which were out of the ordinary”, the Tribunal was entitled to have regard to information it acquired by reason of its being a specialist Tribunal that, “if a child did not play more than one sport at a government school, it is common that a child will play a sport in a local club.” (at [27]) (my emphasis)
I am also satisfied that the applicant was on notice that the Tribunal had information on this and was considering this information (see [22] of the decision record at [47] above). Indeed, the applicant herself raised for the Tribunal’s consideration the argument that her children play sport only at school and incur costs in relation to different equipment and winter and summer uniforms, which she understood was not the case in a government school.
I agree with the Registrar’s written submission at [29]:
“…. In this case, the Tribunal was entitled to rely on its knowledge of the costs of raising children where a child attends private or government schooling. This entitlement must necessarily follow from the test in s 117(2)(b)(ii) of the Assessment Act itself. The Tribunal is required to consider whether the circumstances of the case are sufficiently ‘special’. This requires comparison with the ‘ordinary run of cases’ (Gyselman). It is only possible to make this comparison by having regard to the Tribunal’s general knowledge of these ‘ordinary cases’. The Tribunal, therefore, did not err by making the findings set out at [26] and [27] of the Tribunal Decision .”
Accordingly, I find that Grounds three and four do not raise a question of law.
Ground Five
The applicant’s ground five is particularised as follows:
“At paragraph 29 of the decision, the Tribunal misquoted the decision of Mee and Ferguson (1986) FLC 91 – 716 in that they state as follows:-
“the fact that a payer can afford to pay the costs (of private school fees) it is not in itself a reason to imposing (sic) a liability”.
The decision in Mee and Ferguson which imposes a much stronger obligation and says as follows: -
“where the non-custodian parent has agreed to the child attending private school, that person is liable to contribute to the fees involved so long as, and to the extent that he or she has a reasonable financial capacity to do so.”
The applicant submits that the quote by the Tribunal refers to the test applied to non-custodial parents who have not consented to their children attending private school. She submits that the test applied in this instance is more rigid for the non-custodial parent to pay school fees than that quoted by the Tribunal. Consequently, she argues the Tribunal applied the wrong test.
The Tribunal stated at [29]:
“29. In relation to the issue relating to the disparity of the parents wages as raised by Ms Hoskings, the Tribunal notes that the fact that a payer can afford to pay the costs, is not itself a reason for imposing a liability to contribute to school costs (Mee v Ferguson 1986). While this case is in relation to school fees, Tribunal considers it equally applicable to associated costs of a private or government school education.”
The first thing to be said about the consideration by the Tribunal contained in [29] of its decision record, is that it was engaged in notwithstanding the Tribunal had earlier found that there were no special circumstances and consequently, subsection 117(2)(b)(ii) was not established. In other words, it was unnecessary for the Tribunal to proceed to consider whether the actual costs incurred could be considered to be significant as it had found that special circumstances did not exist in this case.
As I have found that the Tribunal did not err in coming to the conclusion that there were not special circumstances in this particular case, it is strictly unnecessary for the Court to deal with this ground of appeal.
In any event, I am satisfied that the Tribunal did not misapply the “tests” set out in Mee and Ferguson. The relevant passage must be read in context and in full. The decision concerned the father’s capacity to pay school fees and the relevant paragraph is as follows:
“Where the non-custodian has agreed to the child attending such a school that person is liable to contribute to the fees involved so long as and to the extent that he or she has a reasonable financial capacity to continue to do so. Where the non-custodian has not agreed to the child attending such a school he or she is not liable to contribute to those expenses unless there are reasons relating to the child's welfare which dictate attendance at that school rather than at a non-private school. Then the non-custodian, as an aspect of the welfare and maintenance of the child, is required to contribute to the extent that he or she has a reasonable financial capacity to do so. However, the mere fact that the non-custodian can afford to pay the fees, or indeed if he or she is a wealthy person, is not in itself a reason for imposing that liability.”
As the Registrar points out in its submissions, the applicant relies on the first sentence of that passage, whereas the Tribunal was referring to the final sentence of that passage. The Tribunal observed that the decision in Mee and Ferguson which concern the payment of school fees was also applicable to associated costs. The Tribunal did not misapply any test. The weight to be given to any disparity in income of the parents was a matter for the Tribunal in engaging in its merits review and did not raise a question of law.
I find that this ground of appeal does not raise a question of law.
Conclusion
Accordingly, for the reasons set out in this judgment, I will dismiss the appeal. I will make directions for the hearing of the Registrar’s cost application.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Judge Jones
Associate:
Date: 7 August 2015
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