Jordan & Verne (SSAT Appeal)

[2012] FMCAfam 21

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JORDAN & VERNE (SSAT APPEAL) [2012] FMCAfam 21

CHILD SUPPORT – Decision of Social Security Appeals Tribunal set aside.

Child Support (Assessment) Act 1989, s.117
Child Support (Registration and Collection) Act 1988, ss.103X, 110B
Administrative Appeals Tribunal Act 1975, ss.43, 441(1)
Social Security (Administration Act) 1999
Family Law Act 1975, s.75
Local Government Act 1919 (NSW), s.118(1)

Gyselman v Gyselman (1992) FLC 92-297
LDME & JMA (SSAT Appeal) (2007) 38 Fam LR 132
Lockie [2009] FamCA 656
Tasman & Tisdall [2008] FMCAfam 126
Byrne & Graham (SSAT Appeal) [2010] FMCAfam 1116
Travers & Gibbon (SSAT Appeal) [2011] FMCAfam 543
Rana v Repatriation Commission [2011] FCAFC 124
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Collector of Customs v Pozzolanic (1993) 43 FCR 280
Summerby & Cadogen [2011] FamCAFC 205
Sagigi v Comcare [2009] FCA 385
Christiansen v Social Security Appeals Tribunal [2010] FCA 1146
Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321
Gyselman v Gyselman (1991) 15 Fam LR 219
Savery and Savery (1990) FLC 92-131
Hope v Bathurst City Council (1980) 144 CLR 1
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Minister for Immigration and Citizenship v SZMDS (2010) 266 ALR 367

Applicant: MS JORDAN

Respondent: MR VERNE

File Number: ROC 459 of 2007

Judgment of: Jarrett FM

Hearing date: 30 June 2011

Date of Last Submission: 30 June 2011

Delivered at: Brisbane

Delivered on: 13 January 2012

REPRESENTATION

Counsel for the Applicant: Mr Green

Solicitors for the Applicant: Harrington Family Lawyers

Counsel for the Respondent: Mr Arnold

Solicitors for the Respondent: Dave McHenry & Associates

ORDERS

1. That the decision of the Social Security Appeal Tribunal made on 7 September, 2010 between Mr Verne and Ms Jordan be set aside.

IT IS NOTED that publication of this judgment under the pseudonym Jordan & Verne (SSAT Appeal) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ROCKHAMPTON

ROC 459 of 2007

MS JORDAN

Applicant

And

MR VERNE

Respondent

REASONS FOR JUDGMENT

1. This is an appeal by Ms Jordan pursuant to s.110B of the Child Support (Registration and Collection) Act 1988 from a decision of the Social Security Appeals Tribunal (“SSAT”) made on 30 August, 2010. The SSAT’s decision set aside certain determinations of an objections officer made pursuant to Part 6A of the Child Support (Assessment) Act 1989.  The objections officer’s decision was made in respect of a decision of a senior case officer of the Child Support Agency in relation to certain change of assessment applications by Mr Verne and Ms Jordan.

Background

1. The decision of the SSAT sets out the background to this application as follows:

   History

   1. Mr Verne and Ms Jordan are the parents of [X] born [in] 1992 and [Y] born [in] 1997.  At all material times, the Child Support Agency ('CSA') has recorded the children as being in the primary or above primary care of Mr Verne and the regular or below regular care of Ms Jordan.

   Assessments

   2. The administrative assessment of child Support for the period from 1 November 2009 to 19 March 2010 was based on a deemed income for Ms Jordan of $25,235, and an adjusted taxable income for Mr Verne of $68,797. It resulted in Ms Jordan having a liability for the payment of an annual rate of child support of $835. That assessment was subject to recalculation when Ms Jordan filed her tax return for the 2008/2009 year.

   3. On 21 September 2009, Mr Verne made a departure application under Part 6A of the Child Support (Assessment) Act 1989 ('the Act'). Ms Jordan cross applied on 20 October 2009. A senior case officer allowed Mr Verne's application on 18 November 2009. She fixed the assessment to be based on an adjusted taxable income for Mr Verne for the period 1 July 2009 to 31 December 2009 of nil. The senior case officer considered that Ms Jordan's income should be fixed at $57,000 annually for the period 1 October 2009 to 31 December 2010. This was based on the amount of Ms Jordan's income as at the date of termination of her employment, and based on a finding that that was a reflection of her earning capacity.

   4. Ms Jordan objected to that decision on 8 December 2009. On 3 February 2010, an objections officer allowed the objection. The objections officer fixed the assessment to be based on an adjusted taxable income for Mr Verne of nil for the period 21 September 2009 to 31 December 2009; and an adjusted taxable income for Ms Jordan of $54,368 from 21 September 2009 to 5 November 2009, and also fixed Ms Jordan's child support liability from 6 November 2009 to 28 February 2010 at the minimum annual rate. This was to reflect the fact that both parents were unemployed and looking for work after Mr Verne's redundancy, and Ms Jordan leaving her employment to accompany her husband after his transfer.

   Current appeal

   5. Mr Verne appealed to the Tribunal on 11 February 2010.

   6. The Tribunal heard the matter in Brisbane on 31 May 2010. Both parents spoke to the Tribunal by conference telephone, and gave sworn evidence. The Child Support Registrar was not present.

   7. The matter was adjourned with directions that Mr Verne provide additional material, specifically proof of his income for the 2009/2010 year. On 31 May 2010, Mr Verne produced his employment separation certificate from [P] Pty Ltd together with three payslips. On 7 June 2010, further submissions were received from Ms Jordan. On 23 June 2010, further submissions were received from Mr Verne with additional assertions about Ms Jordan's position. Further submissions from Ms Jordan were received on 1 July 2010, however the Tribunal considered that they were repetitive of submissions already made, and elected not to take the document into evidence.

   8. The Tribunal reconvened on 30 August 2010 and made its decision.

2. Ms Jordan’s complaints about the SSAT’s determination centre around its decision to impute to her a child support income amount for certain periods when she was without employment.  At the relevant times, her income from personal exertion was nil but the SSAT determined that she had available to her a financial resource in the form of the financial support she received from her husband.  The SSAT made findings about that level of support on an annualised basis and found that
   Ms Jordan had an income for child support purposes of equivalent value.

The Statutory Framework

1. A party may appeal a decision of the SSAT pursuant to s.110B of the Registration and Collection Act. That section is in the following terms:

   “A party to a proceeding before the SSAT under Part VIIA may appeal to a court having jurisdiction under this Act, on a question of law, from any decision of the SSAT in that proceeding.”

2. As Halligan FM pointed out in LDME & JMA (SSAT Appeal) (2007) 38 Fam LR 132:

   19.    The Explanatory Memorandum accompanying the Bill that became the New Formula Act says of s.110B:

   “Section 110B deals with appeals from decisions of the SSAT.  It provides that a party to a proceeding before the SSAT may appeal to a court having jurisdiction, on a question of law, from any decision of the SSAT in that proceeding.  This is consistent with how matters are currently appealed from the AAT to a court.  The SSAT and AAT are tribunals which consider the merits of a case, whereas a court usually only considers matters which raise a question of law.”

   20. The provision creating a right of appeal, on a question of law, from the Administrative Appeals Tribunal (the AAT) is s.44(1), Administrative Appeals Tribunal Act 1975 (the AAT Act), which is in the following terms:

   “(1)  A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.”

   21.    Section 110B and s.44(1) are identical provisions apart from the references to the Tribunals whose decisions may be appealed and the court to which the appeal lies.  And other provisions of Division 3, Part VII of the Registration Act are based on provisions in relation to appeals, on a question of law, from the AAT, including provisions as to the court’s powers on an appeal (cf. s.110F, Registration Act and s.44(4) and (5), AAT Act) and the limited power to make findings of fact on an appeal (cf. s.110G, and s.44(7), (8) and (9)).  ….

The Nature of this Appeal

1. Consistently with other decisions of this Court, the approach to be taken to this application should be informed by the approach adopted when dealing with appeals pursuant to s.44(1) of the AAT Act: e.g. LDME & JMA (SSAT Appeal) (above), Tasman & Tisdall [2008] FMCAfam 126, Byrne & Graham (SSAT Appeal) [2010] FMCAfam 1116; Travers & Gibbon (SSAT Appeal) [2011] FMCAfam 543.

2. As to the approach to be adopted on an appeal brought pursuant to s.44(1) of the AAT Act, the principles have recently been summarised by the Full Court of the Federal Court in Rana v Repatriation Commission [2011] FCAFC 124. In that case Kenny, Stone and Logan JJ said:

   [11] The right of appeal conferred by s 44 of the AAT Act is a right to appeal to this court "on a question of law". The question of law is, as was emphasised by Gummow J when a judge of this court, the very subject matter of the appeal: TNT Skypak International (Aust) Pty Ltd v FCT (1988) 82 ALR 175 at 178 Recognising this, Ryan J in Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524 highlighted the importance of stating a question of law in the notice of appeal. This importance has been repeatedly emphasised in recent years by the Full Court in cases such as Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 at 324-325 (Birdseye); Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290 at 300-302 and Comcare v Etheridge (2006) 149 FCR 522 at 526-527. The need for a notice of appeal to specify a question of law is not just a matter of pleading. In the absence of a question of law there is no subject matter for the appeal and the court has no jurisdiction to entertain the proceeding.

   [12] The respondent Repatriation Commission relied upon this line of authority as offering one reason why the appeal against the judgment below should be dismissed.

   [13] The learned primary judge was plainly alive to the importance of the requirement that there be a question of law: see in particular para 41 of his Honour's reasons for judgment and the reference to Birdseye. At the time, 0 53 r 3(2) of the (now former) Federal Court Rules 1979 (Cth) required that a notice of appeal separately specify the question of law raised by the appeal and the grounds relied upon in support of the order sought on the appeal. In Birdseye at [18] Branson and Stone JJ drew attention to this rule and to a resultant expectation that the grounds specified in a notice should form a link between the specified questions of law and the orders sought. In effect, the grounds should detail why it is that the nominated questions of law should be answered in a way which entitles the applicant to the orders sought.

   [14] The learned primary judge scrutinised the grounds which Mr Rana had specified in his notice of appeal to the end of determining whether there was any such link and also to the end of determining whether, read as a whole, a question of law was in substance revealed by the notice ...

   [15] The end result of his Honour's scrutiny of these grounds were conclusions that Mr Rana's appeal from the Tribunal raised no question of law but was, instead, an impermissible endeavour to have the court to review on the merits the question of his pension entitlement. In so concluding, his Honour stated (at [88J-[89]), “This was a case quintessentially which had to be decided upon its facts. The Deputy President addressed all of the relevant evidence and decided the case factually adversely to the applicant ...

3. Respectfully, I agree with Halligan FM in LDME & JMA (SSAT Appeal) (above) where his Honour said:

   [30]  Notwithstanding this ideal, in my view this Court must have regard to the statutory requirement binding it to “proceed without undue formality” and to “endeavour to ensure that the proceedings are not protracted” (s 42, Federal Magistrates Act 1999), reflecting the objects of the Federal Magistrates Court Act (see especially s 3(2)(a) and (b)).  The eschewing of undue formality is particularly significant in matters, such as child support matters, where unrepresented litigants are a significant phenomenon.  The lack of representation of a s 44 appellant has been recognised in this Court as justifying some amelioration of the usually strict requirement in such appeals for the question of law to be stated in the Notice of Appeal (Burgess v Centrelink and Ors [2006] FMCA 1952 at [5] and [6]).

   [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.

   [32]  Of even greater significance in my view is the guidance the above mentioned cases provide to the Court in deciding a section 110B appeal.  They illustrate the analysis and process of reasoning required in deciding such an appeal.

   [33]  Thus, of relevance to s.110B appeals in my view are cases on s.44 appeals in relation to:

   ·    what is a “question of law” (for example, Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287; Collector of Customs v Agfa-Gevaert Ltd (1996) 196 CLR 389 at 394-399; Repatriation Commission v Hill [2002] FCAFC 192 at [59], (2002) 69 ALD 581; Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 at [6] – [8], (2003) 131 FCR 28, 37 AAR 309); Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 at [45] and [46] per Branson J, (2003) 202 ALR 450, 47 ACSR 649; Hartnett v Migration Agents Registration Authority [2004] FCA 50 at [50])

   ·    the centrality to the appeal on a question of law and its impact on the nature of the proceedings (for example, Birdseye above at [10] to [22] per Branson and Stone JJ, (2003) 76 ALD 321, 38 AAR 55: Saxby Bridge, above, at [107] per Jacobsen and Bennett JJ; Comcare v Etheridge above at [13] and [14] per Branson J, with whom Spender and Nicholson JJ agreed; Brown v Repatriation Commission [2006] FCA 914 at [7]);

   ·    the necessary connection between the question of law raised on an appeal and the relief sought (for example, Birdseye, above, at [18] per Branson and Stone JJ; Saxby Bridge, above, at [47] per Branson J).

The Present Appeal

1. The present appeal was prosecuted by Ms Jordan on the basis of a further amended Notice of Appeal filed on 28 January, 2011 in which the questions of law are specified. The Notice of Appeal specifies eight questions of law. Only some of them are pure questions of law as explained in the authorities set out above. I will deal with each one in turn.

Question 1

1. The question is stated as follows:

   1. Whether the Tribunal was required to consider, as a discrete question or issue, whether there were special circumstances of the case that made it appropriate to have regard to: the income, earning capacity, property and financial resources of Mr Jordan as required by section 117(7A)(b)(i) of the Child Support (Assessment) Act 1989 ("the Act"), when determining whether they could be considered a "financial resource" of Ms Jordan, for the purposes of determining if the ground for departure in section 117(2)(c) of the Act was established.

2. Relevantly, the Tribunal summarised Mr Verne’s claim to a departure order as follows:

   Income, property and financial resources and earning capacity

   15. Subparagraphs 117(2)(c)(ia) and 117(2)(c)(ib) - commonly referred to as "Reason 8" - provide as a ground for departure:

   (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 ...

   16. Mr Verne seeks a change to the child support assessment because he asserts that Ms Jordan has an income, earning capacity and financial resources which are not taken into consideration in the assessment. He considers that she had an income up to the time that she left her employment, an earning capacity she is choosing not to exercise thereafter, and also that she has financial resources which ought to be applied to the support of the children.

3. It will be seen from s.117(2)(c)(ia) of the Assessment Act set out above that one of the relevant matters for the Tribunal’s consideration was the financial resources of Ms Jordan.

4. The relevant child support year under consideration by the Tribunal was the 2009/2010 year.  The evidence accepted by the Tribunal was that Ms Jordan worked for remuneration until 16 November, 2009 and between 1 July, 2009 and 16 November, 2009 she earned $21,510.30.  Thereafter she was unemployed, although she attempted to find employment.  She ceased her employment in November, 2009 so that she might relocate interstate with her husband who had been promoted and transferred by his employer from South Australia to Queensland.  He was subsequently transferred to the USA and Ms Jordan has moved with him to that country.

5. The Tribunal took the view that Mr Jordan’s financial support of
   Ms Jordan following her unemployment was a financial resource that was available to her.  The Tribunal considered “the decision of the Family Court in Lockie [2009] FamCA 656 to the effect that a person’s partner can be considered to be a financial resource of that person” (at paragraph 31 of the Tribunal’s reasons).

6. The reliance upon Lockie (above) is, respectfully, misplaced.  That was a case dealing with property division between spouses for the purposes of Div VIII of the Family Law Act 1975. Although it assists in determining what falls within the scope of the phrase “financial resource” for the purposes of s.75(2) of the Family Law Act, it is not particularly helpful for the purposes of the present inquiry.

7. Nonetheless, I am satisfied that the Tribunal was correct to assert that the financial support to be derived from a parent’s spouse is a financial resource for the purposes of s.117(2)(c)(ia). One need go no further than the terms of s.117(7A)(b) of the Assessment Act (set out below) to reach that conclusion. Were it otherwise, that section would have no work to do.

8. Section 117(7A) of the Assessment Act provides:

   (7A) In having regard to the income, property and financial resources of a parent of the child, the court must:

   …

   (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.

9. Relevantly for this claimed ground of departure, the Tribunal made the following findings:

   a)Ms Jordan’s child support income amount should not be assessed on her earning capacity because the Tribunal was not satisfied that the circumstances in which she ceased employment engaged s.117(7B) of the Assessment Act (which permits a finding that a parent’s earning capacity is greater than that reflected in their actual income);

   b)Ms Jordan disclosed no savings in her financial statements and so it was reasonable to assume that her income, when she was working, was fully absorbed by her expenses;

   c)Now that she was not working, her expenses, which the Tribunal assumed would be ongoing, must still be met;

   d)Mr Jordan must be providing to Ms Jordan such support as was necessary for her to continue to meet her expenses;

   e)Ms Jordan’s financial support from her husband could be quantified as $53,000 based on the Tribunal’s assumption that her expenses equalled her income when she was working; and

   f)The support from her husband was a resource available to her which ought to be taken into account for child support purposes.

1. The Tribunal’s reasons disclose that the Tribunal did not refer to s.117(7A)(b)(i) set out above in terms. Ms Jordan argues that the Tribunal took account of Mr Jordan’s income, earning capacity, property and financial resources without first identifying the “special circumstances of the case” that made it appropriate to have regard to them as required by s.117(7A)(b)(i) of the Assessment Act.

2. Relevantly the Tribunal set out its findings on this issue at paragraphs 30 – 33 and 56 – 57 of its reasons for decision.  Those paragraphs are as follows:

   30. Ms Jordan gave evidence that her husband has $150,000 in a joint savings account.  She said that she can draw on those funds only to the extent of the monies that she deposits into the account.  However, she accepted that her husband pays for the running of the household, and gives her housekeeping money.  He provides a motor vehicle for her use.  She agreed that she has access to their accounts.

   31. The Tribunal has also considered the decision of the Family Court in Lockie [2009] FamCA 656 to the effect that a person’s partner can be considered to be a financial resource of that person.  The Tribunal considers that Ms Jordan’s partner does meet all of her expenses such that she does not have any outgoings of her own which he does not meet.

   32. The administrative assessment of child support does not reflect that position, and relies on a very much lower income, including an estimated income of nil, reflecting Ms Jordan’s actual income.  The resultant disparity between the resource available to be applied to Ms Jordan’s use, and the income available to be applied to her outgoings constitute a special circumstance in the Tribunal’s view.  The Tribunal considers that an assessment based on her actual income would result in an unjust and inequitable determination of the level of financial support to be provided to the children by Ms Jordan.

   33. This ground is established in relation to Ms Jordan’s financial resources.

   …

   56. The Tribunal has found that [X] has had an income such that he did not require support from his parents after the commencement of his full time employment on 23 November 2009.  The Tribunal has also found that Ms Jordan’s husband is a financial resource to her.  To the extent that this could be viewed as taking into account the income of Mr Jordan, who does not have a duty to maintain the children, the Tribunal considers that there are special circumstances in this case.  The arrangement between Ms Jordan and her husband over the years has [been] that she accompanies him as he furthers his career nationally and internationally.  This is at the expense of Ms Jordan’s ability to be continuously employed, and therefore her capacity to substantially support the children from her own income at times, but Mr Jordan provides for her while she is unable to work because of the relocations required to further his career.

   57. Ms Jordan’s Statement of Financial Circumstances which appears at Exhibit 5 indicates that she had no savings of her own as at the time of completion of that document.  This would indicate to the Tribunal that the whole of her income was applied to meet her expenses.  Hence, the Tribunal proposes to quantify the extent of the financial resource provided by her husband at the amount of the income that it has found for her when she was working, that is, $53,000 annually.

   (my emphasis)

3. Before going on, it is worth recording that the authorities reveal that upon a review of a decision by an administrative decision maker, such as the SSAT in this case, it is inappropriate “to be ‘concerned with looseness in the language ... nor with unhappy phrasing’ of the reasons of an administrative decision-maker...‘The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error’ ”: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271 approving Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287. In Wu Shan Liang the Court continued:

   31. These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.

4. In my view, in paragraph 30 – 33 of the reasons, the Tribunal considers that the disparity between the resource available to Ms Jordan to meet her expenses and her actual income, constitutes “a special circumstance.” It is unclear however, whether the Tribunal is determining that in the context of s.117(2)(c)(ia) or s.117(7A)(b)(i). On balance it seems to me that the Tribunal is making that determination for the purposes of the former section rather than the latter.

5. In paragraph 56 of the Tribunal’s reasons, the Tribunal records that it had found that Ms Jordan’s husband was a financial resource to her and “to the extent that this could be viewed as taking into account the income of Mr Jordan, who does not have a duty to maintain the children, the Tribunal considers that there are special circumstances in this case.”  Although the Tribunal’s reasons are not crystal clear, it is apparent by the adoption of words from the section, that in paragraph 56 the Tribunal is considering whether there are special circumstances in the case which would warrant taking into account Mr Jordan’s income even though he does not have a duty to maintain the subject children.

6. In answer to the question of law posed by the applicant, in my view the Tribunal does have to consider, as a discrete question or issue, whether there are special circumstances in the case for the purposes of s.117(7A)(b)(i) and that consideration is distinct from the consideration of whether there are special circumstances for the purposes of s.117(2)(c) of the Assessment Act. Each “set” of special circumstances may be different, the same or have elements in common, but the inquiry for the purposes of each subsection is a separate and distinct inquiry.

7. In this case the Tribunal undertook both exercises.  The Tribunal’s reasons disclose that the facts found to constitute special circumstances for the purposes of each section were different.

8. As to s.117(7A)(b)(i), in paragraph 56 of the Tribunal’s reasons, the Tribunal identified the relevant special circumstances as:

   a)The arrangement between Ms Jordan and Mr Jordan over the years that she accompanies him as he furthers his career nationally and internationally;

   b)That such movements are at the expense of Ms Jordan’s ability to be continuously employed;

   c)That such movements are at the expense of Ms Jordan’s ability and capacity to substantially support the children from her own income at times; and

   d)The fact that Mr Jordan provides for her while she is unable to work because of the relocations required to further his career.

9. For the purposes of s.117(2)(c), the special circumstances are set out in paragraph 32 of the Tribunal’s reasons and are:

   a)The resource available to be applied to Ms Jordan’s use furnished by Mr Jordan;

   b)The fact that she has had no income available to her to be applied to her outgoings;

   c)The disparity between the resources that were met by Mr Jordan and Ms Jordan’s own income.

10. Ms Jordan is critical of the Tribunal’s reasons because the consideration it gave to the special circumstances required to be found for the purposes of s.117(7A)(b)(i) is recorded in paragraph 56 of the reasons under the heading: Would departure from the formula be just and equitable?  A number of points can be made about this:

    a)The Tribunal may be required to deliver a written notice to the parties to a review that sets out:

    i)The reasons for its decision; and

    ii)The findings on any material questions of fact; and

    iii)Refers to the evidence or other material on which the findings of fact are based.

    (s.103X(3)(b) of the Registration and Collection Act which is in similar terms to s.43(2B) of the Administrative Appeals Tribunal Act);

    b)The Tribunal is not a court and so the same level of scrutiny that might be applied to a court’s reasons is not appropriate (see the authorities referred to above);

    c)

    The Tribunal’s reasons in paragraph 56 relevantly record what it has found in respect of the appropriateness of taking into account Mr Jordan’s income as a financial resource available to

    
    

    Ms Jordan. The words used by the Tribunal clearly indicate that the Tribunal was alive to the requirements of s.117(7A)(b)(i) even though there is no express reference to that section.

    d)Reasons for judgment of a court are to be considered “as a whole and not dissected, paragraph by paragraph, as if they were a work in progress”: Summerby & Cadogen [2011] FamCAFC 205 at [63]. That must be even more so in the case of a tribunal, the obligation of which to give written reasons is delineated by statute. So long as the reasons comply with the statutory mandate, they will generally be adequate. The substance is more important than the form: Sagigi v Comcare [2009] FCA 385 at [15] – [18]; Christiansen v Social Security Appeals Tribunal [2010] FCA 1146 at [30] – [31].

11. The fact that the Tribunal records its findings about special circumstances for the purposes of s.117(7A)(b)(i) in paragraph 56 of its reasons for decision does not indicate that the tribunal failed to consider the test in that section for the purposes of determining whether to disregard Mr Jordan’s income as a financial resource available to

    
    

    Ms Jordan.  It clearly did so.

12. Notwithstanding that the question of law posed by Ms Jordan has been answered in a way for which she contended, it does not follow that the appeal should succeed.  In my view the Tribunal in fact carried out the exercise that Ms Jordan contends that it was bound to carry out.

Question 2 and Question 3

1. Question 2 is stated as follows:

   2. If the Tribunal was required by section 117(7A)(b)(i) to consider, as a discrete question or issue, whether there were special circumstances of the case that made it appropriate to have regard to the income, earning capacity, property and financial resources of Mr Jordan: whether the Tribunal was required on a proper construction of that subsection, to consider compendiously all of the following: the income, earning capacity, property and financial resources of Mr Jordan; when determining that the special circumstances of the case that made it appropriate to consider the them as a financial resource of Ms Jordan.

2. The applicant argues that as a matter of statutory construction where a tribunal determines that there are special circumstances of the case that make it appropriate to have regard to the income, earning capacity, property and financial resources of a person who does not have a duty to support a relevant child, the Tribunal is required to consider all of those matters and not just some of them. 

3. In the present case the Tribunal focussed upon Mr Jordan’s income. It said nothing of his earning capacity, property or other financial resources. Ms Jordan argues that the Tribunal ought to have considered all of those matters as part of its determination as to the existence of special circumstances for the purposes of s.117(7A)(b)(i).

4. Ms Jordan argues that such an interpretation seems logical because the decision maker would be required to have regard to the overall financial picture of such a person before determining whether the special circumstances of the case made it appropriate to consider them as part of considering, in turn, the income, property, and financial resources of a parent.

5. However, s.117(7A)(b)(i) gives a list of matters which the Court must disregard. It is not a list of matters to which the Court must have regard when determining whether to take any of those things into account. The matters listed in s.117(7A)(b)(i) are a list of matters which the Court should disregard, except in certain circumstances, when considering the income, property and financial resources of the subject parent.

6. In my view the Tribunal was not required, on a proper construction of s.117(7A)(b)(i), to consider compendiously the income, earning capacity, property and financial resources of Mr Jordan when determining in the special circumstances of the case it was appropriate to have regard to them as a financial resource available to Ms Jordan.

7. Question 3 is better viewed as a ground of appeal (in the sense explained by the Full Court of the Federal Court in Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 at [18] and Rana at [13]) It asks:

   Whether the Tribunal did give any or any proper consideration to all of the following – the income, earning capacity, property or financial resources of Mr Jordan.

8. By this question (and assuming a positive answer to question 2)

   
   

   Ms Jordan seeks to link the positive answer to question 2 to the relief sought by her in this appeal: if the Tribunal was required to give compendious consideration to the Mr Jordan’s income, earning capacity, property and financial resources, it did not do so and, had it done so, the outcome may have been different.

9. Given the conclusion I have come to concerning question 2, it is unnecessary to consider this third question. Nonetheless it is worth noting that the Tribunal is only obliged to consider the evidence before it and it was not suggested that there was evidence of other matters relating to
   Mr Jordan’s earning capacity, property and financial resources before it which, if considered, would have affected the outcome. Thus, even if the question 2 was to be answered as Ms Jordan would have it answered, the appeal would not be successful because it cannot be demonstrated that the result would have been any different.

10. There is no merit in these questions.

Questions 4 and 5

1. These questions are stated as follows:

   “Whether the evidence before the Tribunal and where they were made, the findings of fact made by the Tribunal, were capable at law, of supporting a finding that there were “special circumstances of the case” for the purposes of section 117(2)(c) of the Act.”

   “Whether, a finding that “in the special circumstances of the case, application in relation to the child of the provisions of [the] Act relating to the administrative assessment of child support would result in an unjust and inequitable determination of the level of support to be provided by the liable parent” for the purposes of section 117(2)(c) of the Act, is a “jurisdictional fact.””

2. In the applicant’s outline and oral argument it was suggested that questions 4 and 5 are related. By these grounds the applicant asserts that the facts identified by the Tribunal (and set out above) as constituting the special circumstances of the case cannot, as a matter of law amount to “special circumstances” for the purpose of s.117(2)(c) of the Assessment Act and, because a finding that a ground for departure exists (which necessarily requires a finding that there are special circumstances in the case) such a determination is a determination of a “jurisdictional fact.” The existence of a jurisdictional fact is said to be a question of law and if this Court concludes that the jurisdictional fact was found in error by the Tribunal, the Tribunal exceeded its authority to decide and this Court is entitled to revisit the matter.

3. The Tribunal correctly identified that the phrase “special circumstances of the case” was explained in Gyselman v Gyselman (1991) 15 Fam LR 219. In that case, the Full Court of the Family Court of Australia said of the phrase “special circumstances” (at 225):

   “Whilst it is not possible to find with precision the meaning of that term, as a generality it is intended to emphasise that the facts of the case must establish something that is special or out of the ordinary.  That is, the intention of the legislature is that the Court will not interfere with the administrative formula result in the ordinary run of cases. [It has been held] that “special circumstances” were “facts peculiar to the particular case which set it apart from other cases”.  The approach to the interpretation and the application of the particular grounds in Section 117 (2) must be guided by that qualification”

4. Ealier, in Savery and Savery (1990) FLC 92-131 Kay J said that “special circumstances” were “facts peculiar to the particular case which set it apart from other cases.”

5. Those authorities are consistent with the proposition that the phrase “special circumstances” and particularly the word “special” is not being used in any technical sense, but according to its usual or everyday meaning.  In that regard, the Macquarie Dictionary Australian Encyclopedic, 2006, Sydney relevantly defines “special” as follows:

   1. of a distinct or particular character. 2. being a particular one; particular, individual, or certain.  3. relating or peculiar to a particular person, thing, instance, etc.: the special features of a plan.  4. having a particular function, purpose, application, etc.: a special messenger. 5. dealing with particulars, or specific, as a statement.  6. distinguished or different from what is ordinary or usual: a special occasion.  7. extraordinary; exceptional;  exceptional in amount or degree; especial: special importance…

6. It is apparent, having regard to both the authorities just set out and the definition of the word “special” that it has its ordinary meaning where it appears in s.117(2)(c) of the Assessment Act.

7. The applicant submits that the question of whether the facts as fully found fall within the statutory prescription of “special circumstances”, properly construed, is a question of law. However, that is only so where the words of the statute are not used according to their ordinary or everyday meaning. The position is explained in Hope v Bathurst City Council (1980) 144 CLR 1 by Mason J (as his Honour then was and with whom Gibbs, Stephen, Murphy and Aickin JJ agreed) at 7 as follows:

   10. Many authorities can be found to sustain the proposition that the question whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law. One example is the judgment of Fullagar J. in Hayes v. Federal Commissioner of Taxation [1956] HCA 21; (1956) 96 CLR 47, at p 51 , where his Honour quoted the comment of Lord Parker of Waddington in Farmer v. Cotton's Trustees (1915) AC 922, at p 932 , which was adopted by Latham C.J. in Commissioner of Taxation v. Miller [1946] HCA 23; (1946) 73 CLR 93, at p 97 , that where all the material facts are fully found, and the only question is whether the facts are such as to bring the case within the provisions properly construed of some statutory enactment, the question is one of law only. Fullagar J. then said (1956) 96 CLR, at p 51 :

   “... this seems to me to be the only reasonable view. The distinction between the two classes of question is, I think, greatly simplified, if we bear in mind the distinction, so clearly drawn by Wigmore, between the factum probandum (the ultimate fact in issue) and facta probantia (the facts adduced to prove or disprove that ultimate fact). The ‘facts’ referred to by Lord Parker ... are the facta probantia. Where the factum probandum involves a term used in a statute, the question whether the accepted facta probantia establish that factum probandum will generally - so far as I can see, always - be a question of law.” (at p7)

   11. However, special considerations apply when we are confronted with a statute which on examination is found to use words according to their common understanding and the question is whether the facts as found fall within these words. Brutus v. Cozens [1972] UKHL 6; (1973) AC 854 was just such a case. The only question raised was whether the appellant's behaviour was “insulting”. As it was not unreasonable to hold that his behaviour was insulting, the question was one of fact. (at p7)

   12. The judgment of Kitto J. in N.S.W. Associated Blue-Metal Quarries Ltd. v. Federal Commissioner of Taxation (1956) 94 CLR 309 is illuminating. Kitto J. observed that the question whether certain operations answered the description “mining operations upon a mining property” within the meaning of s. 122 of the Income Tax Assessment Act 1936, as amended, was a mixed question of law and fact (1956) 94 CLR, at pp 511-512 . He went on to explain why this was so: “First it is necessary to decide as a matter of law whether the Act uses the expressions ‘mining operations’ and ‘mining property’ in any other sense than that which they have in ordinary speech.” Having answered this question in the negative, he noted that the “common understanding of the words has ... to be determined” as “a question of fact”. He continued (1956) 94 CLR, at p 512:

   “The next question must be whether the material before the Court reasonably admits of different conclusions as to whether the appellant’s operations fall within the ordinary meaning of the words as so determined; and that is a question of law (1941) 65 CLR, at p 155: see also per Isaacs and Rich JJ. in Australian Slate Quarries Ltd. v. Federal Commissioner of Taxation [1923] HCA 69; (1923) 33 CLR 416, at p 419. If different conclusions are reasonably possible, it is necessary to decide which is the correct conclusion; and that is a question of fact: see per Williams J. in the Broken Hill South Case [1941] HCA 33; (1941) 65 CLR 150, at p 160 .” (at p8)

1. The above passage was cited with approval in Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at 450.

2. In Hope Mason J went on to determine that the word to be construed in that case – “business” had its ordinary or popular meaning when used in the phrase “carrying on business” in s.118(1) of the Local Government Act1919 (NSW). His Honour determined that meaning (at pp.7-8). His Honour then turned to the next question: “the critical issue for decision is whether the material before the Court reasonably admits of different conclusions on the question whether the appellant's activities constitute a "business". On the facts as found, I conclude that the appellant's activities amounted to a business and that no other conclusion was reasonably open”. That question was a question of law and that the trial judge had concluded that the appellant’s activities had not amounted to a “business” meant that he had erred in law.  If the facts as found had permitted of competing conclusions, the inquiry into which was correct the correct conclusion would have been a question of fact.

3. Here Ms Jordan argues that the facts as found by the Tribunal do not amount to “special circumstances” for the purposes of s.117(2)(c) of the Assessment Act. Given my view that the word “special” used in the phrase “special circumstances” has its ordinary meaning, the relevant question of law is whether the facts as found by the Tribunal reasonably admit of different conclusions on the question of whether those facts constitute “special circumstances”. If the answer is that they could not and no other conclusion is open, the Tribunal has made an error by concluding to the contrary. If the answer is that they might, then it is a matter entirely for the Tribunal to determine what conclusion might be drawn from them.

4. Ms Jordan points out that after she and Mr Verne separated, Ms Jordan
   re-partnered and married Mr Jordan. Mr Verne also re-partnered. Mr Jordan has a job which has required him to relocate and Ms Jordan has relocated with him. In order to do so Ms Jordan had to leave one job and is presently seeking the necessary work permits to look for employment in the United States. This has brought about an interruption to her income. She submits that there is nothing in these facts which is special or out of the ordinary. Parents routinely re-partner after a separation and this often necessitates changes to parents’ employment.

5. Ms Jordan argues that there is nothing special or out of the ordinary about these facts. With respect, however, I consider that these arguments do not address the point to be considered.

6. The Tribunal set out at paragraph 32 of its reasons the determination as to “special circumstances” for the purposes of s.117(2)(c) of the Act. I have set that paragraph out above. Apart from paragraph 32, there is no other mention in the Tribunal’s reasons of the “special circumstances of the case” that are necessary to be found before a departure order might be made. Paragraph 32 sets outs the Tribunal’s sole reasons on this point. Earlier in the reasons, at paragraphs 18 – 22 and 29 - 30 the Tribunal recites a number of facts about Ms Jordan, her financial resources, her relationship with Mr Jordan, her employment and the support that she derives from Mr Jordan now that she is unemployed. However, the Tribunal makes no attempt to suggest that these facts are “special” or are part of the factual circumstances which might compendiously be described as “special circumstances”. They are not referred to in paragraph 32 of the Tribunal’s reasons.

7. Even adopting the approach urged by the authorities about how one should approach a consideration of the Tribunal’s reasons, in my view, the circumstances found by the Tribunal to amount to the special circumstances for the purpose of s.117(2) of the Act are set out solely in paragraph 32 of the reasons for decision . They are:

   a)The resource available to be applied to Ms Jordan’s use furnished by Mr Jordan;

   b)The fact that she has had no income available to her to be applied to her outgoings;

   c)The disparity between the two.

8. In my view, those facts alone do not and cannot permit of a conclusion that there are “special circumstances” of the case for the purposes of s.117(2)(c) of the Assessment Act. There is nothing special or out of the ordinary about one spouse meeting another’s expenses and providing financial support during periods when the supported spouse has no income. Indeed, I would venture to suggest that it is an entirely ordinary circumstance that is one of the key elements of a spousal relationship. That there is therefore a disparity between the supported spouse’s income (nil) and the financial support received from the supporting spouse is nothing more than the natural consequence of the provision of support. Again, it is nothing out of the ordinary.

9. Given that conclusion, it is clear that the Tribunal has made an error in determining otherwise.  Had the correct determination been made,

   
   

   Mr Verne’s claim would otherwise have been dismissed and no departure order made.

Question 6

1. Question 6 is in the following terms:

   “Whether the way the Tribunal valued the financial resource of Mr Jordan to Ms Jordan, at AU$53,000.00 was illogical or irrational or unreasonable or all three.”

2. The Tribunal determined that the value of the financial resource received by Ms Jordan from Mr Jordan was $53,000.  The Tribunal’s reasons are dealt with in paragraphs 22, 57 and 67 as follows:

   22. Consequently, Ms Jordan's income from her own earnings ceased as of 16 November 2009.  As indicated, her total income to the end of that employment was $21,510.30.  Extrapolating over the remainder of the year at that same rate to annualise her income, she will have had the equivalent of a total gross salary of $56,483.  Applying similar expenses in deriving that income as she had in the 2008/2009 year, and allowing for some increase in those expenses, the Tribunal considers that over a whole year, Ms Jordan could have expected to have expenses approximating $3,500.  The Tribunal considers that $53,000 is a fair approximation of her income after expenses to the date that she voluntarily resigned.  Ms Jordan has had no income subsequent to her resignation.

   …

   57.  Ms Jordan’s Statement of Financial Circumstances which appears as Exhibit 5 indicates that she had no savings of her own as at the time of completion of that document.  This would indicate to the Tribunal that the whole of her income was applied to meet her expenses.  Hence, the Tribunal proposes to quantify the extent of the financial resource provided by her husband at the amount of the income that it has found for her when she was working, that is, $53,000 annually.

   …

   67.  The Tribunal considers that Ms Jordan should be assessed to pay child support based on the income that she was deriving at the time of her voluntary resignation from her employment, which the Tribunal has found coincides with the extent of the financial resource which her husband provides to her. The Tribunal considers that Ms Jordan should be assessed to pay child support up to the time that [X] started working, 23 November 2009, based on that income and resource, quantified at $53,000 annually. This is a period only sightly longer than when she resigned from work.

3. I have very real misgivings about the way in which the Tribunal approached the task of determining Ms Jordan’s child support income amount as set out above.  However, illogicality or irrationality in reasoning is not of itself an error of law where all that is determined is a question of fact and there is some basis for the finding made.  In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Mason CJ (with whom Brennan, Toohey and Gaudron agreed) said at 356:

   87. The question whether there is any evidence of a particular fact is a question of law: McPhee v. S. Bennett Ltd. (1934) 52 WN(N.S.W.) 8, at p 9; The Australian Gas Light Co. v. The Valuer-General (1940) 40 SR(NSW) 126, at pp 137-138. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law: Australian Gas Light, at pp 137-138; Hope v. Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1, at pp 8-9. This is because, before the inference is drawn, there is the preliminary question whether the evidence reasonably admits of different conclusions: Federal Commissioner of Taxation v. Broken Hill South Ltd. [1941] HCA 33; (1941) 65 CLR 150, at pp 155, 157, 160. So, in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law: Sinclair v. Maryborough Mining Warden [1975] HCA 17; [1975] HCA 17; (1975) 132 CLR 473, at pp 481, 483.

   88. But it is said that "(t)here is no error of law simply in making a wrong finding of fact": Waterford v. The Commonwealth [1987] HCA 25; (1987) 163 CLR 54, per Brennan J. at p 77. Similarly, Menzies J. observed in Reg. v. The District Court; Ex parte White [1966] HCA 69; (1966) 116 CLR 644, at p 654:

   "Even if the reasoning whereby the Court reached its
   conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record. To
   establish some faulty (e.g. illogical) inference of fact
   would not disclose an error of law."

   Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.

4. Ms Jordan relies upon certain remarks made in Minister for Immigration and Citizenship v SZMDS (2010) 266 ALR 367 as authority for the proposition that the question of whether a decision is illogical or irrational is a question of law. In particular I am directed to the decision of Crennan and Bell JJ in that case at paragraphs 131 and 133. Their Honours remarks, however, are made in the context of irrationality or illogicality in decision making concerning jurisdictional facts. The inference (or finding) drawn by the Tribunal about the value of the financial resource received by Ms Jordan from Mr Jordan cannot be said to be a jurisdictional fact.

5. Whilst criticism might be made of the Tribunal’s approach to the quantification of the financial resource enjoyed by Ms Jordan from

   
   

   Mr Jordan, in my view it cannot be said that there was no evidence from which the relevant inference could have been drawn.  No question of law is reveal by this ground.

Question 7

1. Question 7 is stated as follows:

   “Whether the Tribunal took into account an irrelevant consideration when it determined that it was “otherwise proper” to depart from the administrative assessment as required by section 98C(1)(b)(ii)(B) of the Act; namely that Ms Jordan voluntarily left employment paying her AU$53,000.00 per annum, to travel with her husband to the USA where he had obtained remunerative employment, in circumstances where the Tribunal found the requirements of section 117(7B) were not satisfied.”

2. Ms Jordan argues that the Tribunal erred when it decided to fix her child support income amount based on the income that she was deriving at the time of her voluntary resignation from her employment and which the Tribunal found coincided with the extent of the financial resource which her husband provides to her. The Tribunal’s determination is set out in paragraph 67 of its reasons for decision extracted above.

3. At paragraphs 23 – 27 of its reasons for decision the Tribunal considered whether Ms Jordan had an earning capacity which was not reflected in her income. It did so by considering s.117(7B) of the Assessment Act. It found that s.117(7B) was not engaged because the Tribunal was not satisfied that that Ms Jordan’s decision to voluntarily cease employment was motivated by child support considerations. The Tribunal found that Ms Jordan did not have a relevant earning capacity which she was not exercising.

4. In those circumstances, it was not open to the Tribunal to use an imputed earning capacity to fix a child support income amount for Ms Jordan. Paragraph 67 suggests, clearly in my view, that Ms Jordan’s child support income amount is fixed by reference to her annualised earnings at the time she ceased work. The reference to the coincidental correlation between that sum and the amount determined by the Tribunal as the value of Mr Jordan to her as a financial resource is by the by. That s.117(7B) of the Assessment Act was not engaged meant that Ms Jordan’s income for child support purposes could not be assessed according to an imputed earning capacity.

5. There is merit in this ground of appeal also.

Question 8

1. Question 8 is framed as follows:

   “Whether the Tribunal discharged its obligation under s103X of the Act; specifically whether it failed to disclose in its reasons for decision, its process of reasoning leading to its conclusions:

   i.   That there were special circumstances of the case that made it appropriate to have regard to Mr Jordan’s income, earning capacity and property and financial resources and to further conclude the order it made was just and equitable and otherwise proper.

   ii.  That Mr Jordan was a financial resource to the appellant for the purposes of s117(2)(c)(ia) of the Act.

   iii.     Valuing the financial resource that it found was Mr Jordan at AU$53,000.”

2. Given my conclusions in respect of questions 4 and 7. I do not consider it appropriate to further consider this ground.

Conclusions

1. The decision of the SSAT should be set aside. In my view, the facts found by the SSAT and relied upon by it to conclude that there were “special circumstances” of the case for the purposes of s.117(2)(c) of the Assessment Act, do not and cannot permit of such a conclusion. In those circumstances, there seems little utility in remitting the matter to the Tribunal to be re-determined.

2. For the above reasons I make the orders set out at the commencement of these reasons.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Jarrett FM

Date: 13 January 2012