Julius and Murphy and Anor (SSAT Appeal) - [2010] FMCAfam 267

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JULIUS & MURPHY & ANOR (SSAT Appeal)

[2010] FMCAfam 267

CHILD SUPPORT – Appeal from SSAT – determining income amounts – relevant considerations.

Child Support (Registration and Collection) Act 1988, s.110B

Minister for Immigration v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481; (1996) 70 ALJR 568; (1996) 9 Leg Rep 2; (1996) 41 ALD 1

Appellant:

MR JULIUS

First Respondent:

MS MURPHY

Second Respondent:

CHILD SUPPORT REGISTRAR

File Number:

MLC 11313 of 2008

Judgment of:

Riethmuller FM

Hearing date:

10 February 2010

Date of Last Submission:

10 February 2010

Delivered at:

Melbourne

Delivered on:

25 March 2010

REPRESENTATION

Counsel for the Appellant:

The Appellant appearing in person.

Counsel for the First Respondent:

The Respondent appearing in person

Counsel for the Second Respondent:

Ms Ghosh

Solicitors for the Respondent:

Australian Government Solicitors

ORDERS

The appeal filed 12^th October 2009 be dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLC 11313 of 2008

MR JULIUS

Applicant

And

MS MURPHY

First Respondent

CHILD SUPPORT REGISTRAR

Second Respondent

REASONS FOR JUDGMENT

The appellant appeals from a decision of the Social Security Appeals Tribunal dated 28 August 2009 and forwarded to the parties on 9 September 2009. In that decision the tribunal set the appellant’s child support income amount at $47,580 from 16 May 2008 to 30 June 2008 and thereafter to set his adjusted taxable income amount at $47,580 for the period 1 July 2008 to 31 December 2009.
The proceedings before the senior case officer, under part 6A of the Child Support (Assessment) Act, and the objections officer, centred around the question of the true income and earning capacity of the appellant.
Appeals against decisions of the SSAT are limited to issues of law: see s.110B of the Child Support (Registration and Collection) Act.
On the hearing of the appeal the appellant argued four issues:
a)That he was denied procedural fairness as a result of being disconnected during a telephone hearing;
b)That at the hearing he was hounded about the reasons why he was not seeing the children more often and that this was irrelevant to the questions being decided by the tribunal;
c)That the tribunal failed to have regard to the evidence before them that he had increased his borrowings to meet his day-to-day expenses; and
d)That the tribunal acted without any evidentiary basis in considering the income and earning capacity of a [tradesman] when the appellant did not hold such a qualification.
Issue 1
The appellant outlines in his affidavit in support of the appeal that during the telephone hearing before the SSAT the connection to the tribunal was severed. The appellant maintains that this was through no fault of his and that initially he assumed that he had been cut off by the tribunal. It appears clear that the tribunal did not terminate the call and, had attempted to reconnect the applicant but were unable to do so.
At the time that the applicant’s telephone connection to the telephone hearing was lost the respondent was giving evidence before the tribunal.
This event caused an issue for the tribunal with respect to procedural fairness as, through no fault of anyone, it appears that the electronic communication system had failed denying the applicant the opportunity to hear the evidence of the respondent.
Some time later the appellant spoke to an officer of the SSAT to advise of the difficulty. The tribunal member was alive to the issues that this technical failure presented to the conduct of a fair hearing. The tribunal member compiled a summary of the evidence given at that hearing which extends for two and a half pages in single-spaced typed dot points. The tribunal member made directions for the appellant to provide additional information including any response he wished to make to the summary of the evidence given at the hearing. These directions were forwarded to the appellant on 3 August 2009. The appellant sought an extension of time to respond to the directions, which was granted, extending the time limit to 25 August 2009. On 25 August a further extension was sought, and the tribunal granted the extension to close of business on 27 August. No further material was forthcoming from the appellant and the tribunal proceeded to make a determination.
There are a number of salient features that must not be overlooked in this course of events:
a)the telephone call to the appellant for the purpose of the hearing appears to have been terminated through no fault of the tribunal or the parties;
b)the tribunal has taken steps to notify the appellant of the substance of the evidence that was placed before it at a time when he was not present;
c)the tribunal has specifically sought his response with respect to a number of issues relevant to the matter and included the summary of evidence provided by them to the appellant;
d)the appellant was granted two extensions of time within which to respond to these directions; and,
e)the appellant made no response with respect to the material nor did the appellant seek that the hearing be reconvened or to have an opportunity to cross-examine.
Having regard to the informal nature of the tribunal process, and balancing this against the need to ensure procedural fairness, it appears to me that the tribunal in this case has taken sufficient steps to provide procedural fairness to the appellant. Indeed, the tribunal has gone further than merely requesting that he provide further information but ensured that he was aware of the substance of the evidence so he could respond. It was open to him to apply to the tribunal to reconvene the hearing. The tribunal, no doubt because he was representing himself, has granted two extensions of time to enable him to have sufficient time to consider his position. In the unusual circumstances of this case, I am not persuaded that the appellant has established that the tribunal erred at law by failing to provide him with procedural fairness. He had an adequate opportunity to respond after being given the relevant information by the tribunal.
Therefore I dismiss the appeal to the extent that he relies upon this ground.
Issue 2
The second ground of appeal by the appellant, as argued before me, was that the tribunal member examined him at length, and with some intensity, with respect to the reasons why he may not be spending more time with his child. There was not an issue before the tribunal as to the amount of time that the appellant was spending with the child. In the circumstances, it does not appear that this was a relevant issue for the tribunal to determine.
There was no transcript of the proceedings placed before me to provide any evidence of the conversation that took place. In such an emotionally charged environment it is often difficult to assess the extent to which inquiries by a tribunal member, to ensure that they have a general understanding of the family arrangements, go beyond appropriate inquiries or not. Often the subjective experiences of those involved in such hearings differ somewhat from what is set out in the transcripts. This is the reason why a transcript is essential in cases where this type of issue is raised.
The respondent, also not producing a transcript, maintained that there had not been any strong questioning of the appellant about time with the child.
A review of the decision of the tribunal member does not indicate that there was any reliance upon any information relating to the care arrangements of the child, beyond that necessary to determine the appropriate number of nights for the application of the formula and subsequent considerations.
On the evidence before me, I am not satisfied that the tribunal member conducted themselves in an inappropriate way nor focused upon irrelevant issues in this case. Therefore I dismiss the appeal so far as it relates to this ground.
Issue 3
The third ground of appeal relates to the findings by the tribunal member as to the actual income and financial capacity of the appellant. The appellant works in his father’s business. He is clearly involved in the business at a level greater than simply a wages employee. This required the tribunal to analyse not simply his wage slips but also the financial circumstances of the appellant. There are a number of relevant findings that the tribunal member has made. Paragraph 45, the tribunal concluded:
[45] [The appellant] told the Tribunal that he and [Ms D] increased their mortgage from $50,000 to $85,000 to meet the expense of [R1] and [R2’s] school fees, indicating that the costs of the private school had caused financial hardship. In support of this contention [the appellant] provided the Agency with a St George Transaction History for his residential home loan, showing that the loan was increased from $57,891.12 to $100,791.12 on 27 May 2008 because of an advance of $42,900, although $28,000 was redeposited the next day. Bank statements show that on 28 May 2008 remaining funds of $14,838.95 were withdrawn from [the appellant’s] Freedom account with St George and credited to his St George Gold Mastercard.
In paragraph 55, the tribunal noted that:
[55]…[the appellant] has been able to pay for five children to attend [omitted], maintain the mortgage payments, and meet credit card bills which were regularly in the vicinity of $5,000 per month or more (although this included the credit card payments for school fees for some of the children).
However, at paragraph 56 the tribunal concluded that it was:
[56]…not possible to assess the true financial resources that were or are available to [the appellant] by way of cash income from his father’s business. However, the Tribunal had sufficient material to assess expenses and income for a 12 month period in 2007 which was before [Ms D] had income from employment.
A schedule of expenses was set out in paragraph 56 showing a total of $65,052.07.
At paragraph 57, the tribunal identified that the parties, during 2007 when they lived together, received a total of $27,537.82 in social security. As a result (at paragraph 58) the tribunal concluded that the appellant would have required a net wage of at least $37,514.25 in order to meet all of the expenses (to the extent they exceeded social security payments) during the 2007 calendar year. This was far in excess of the taxable incomes as shown on his tax returns. The tribunal goes on to analyse cash income that may have been made available on the evidence of the parties concluding, as follows:
[63] The Tribunal concludes there are special circumstances in this particular case, which make it unjust and unfair for the administrative assessment to apply, in that [the appellant] had or has a cash income, which the Tribunal has found, on the available evidence, to be in the order of $37,514.25 ($721.42 per week) to meet credit card debt, mortgage and insurance premium payments. There is also evidence of cash expenditure of at least $200-$300 per week by [Mr D], making a cash income of $921.42 per week or $47,914 per annum. The Tribunal finds it more likely then not that [the appellant] had and has cash income of this amount or more available to him from which child support can be paid. This level of income is not reflected in his taxable income as assessed by the ATO ($26,278 for 2007/2008) or his present estimated income of $0. Accordingly, the Tribunal finds Reason 8 is established in the special circumstances of the case.
The issue that the appellant takes with this analysis is that the tribunal have made a finding that he redrew on his mortgage by around $14,838.95, and that the tribunal had failed to take this into account in determining his income. However, the redraw on the mortgage was found to have occurred on 28 May 2008 (paragraph 45) as evidenced by the transaction history document from the home loan (see s.95(3) documents at p.291).
Had the mortgage redraw occurred during the 2007 calendar year, it would have been a relevant and significant piece of evidence for the tribunal in determining the available income of the appellant. On the evidence before the tribunal, the mortgage redraw occurred in the 2008 calendar year and therefore did not impact upon the financial circumstances of the appellant in the 2007 calendar year.
In the circumstances the appellant has not established an error on the part of the tribunal in this regard.
Issue 4
The final matter raised by the appellant was with respect to the tribunal’s finding at paragraph 84 of the decision where the tribunal stated:
[84] …[The appellant] provided no evidence to substantiate his health issues or any incapacity for full time work. The Tribunal considers that [the appellant] was able to and did work more than he stated and the equivalent of full time, as a [tradesman]. According to the Australian Government’s Job Search Website, the average gross weekly wages for a [tradesman] are $915 or $47,580 per annum. As this figure is consistent with the cash income required to meet [the appellant’s] financial commitments and expenditure, as discussed above, the Tribunal determined that [the appellant’s] income for child support purposes should be set at $47,580.
The appellant says that he is not a [tradesman], but a [occupation omitted]. In his material before the tribunal he is variously described as [occupations omitted]. In this respect, the tribunal did not have clear evidence of the actual classification of the appellant and appears to have made an error of fact if it determined that he was a [tradesman]. However, the substance of the tribunal’s decision is based upon a careful analysis of his expenditure during the 2007 calendar year. In the context of this case, the average gross weekly wages for a person with arguably similar skills or abilities to the appellant serves as nothing more than confirmation that the primary findings of the tribunal on the facts, the actual facts and circumstances of the case accord with what one may expect from an employee with similar qualifications.
The fact that the qualifications are not identical does not appear to me to necessarily undermine the purpose of the inquiry of the tribunal. The primary finding of the tribunal remains that based upon the careful analysis of the appellant’s actual earnings and expenses, as set out in the body of the decision. This analysis showed an income of around $47,914 per annum. To the extent that the tribunal have erred in comparing him to a [tradesman] the result has been a small reduction in the income amount they expected him to earn through his father’s business compared to the analysis that they carried out with respect to his actual finances in the 2007 calendar year. Indeed, the difference is not only the difference between the average wages for a [tradesman] and the figure the tribunal identified for analysis, but is appropriately conservative in that it does not factor in the inevitable increase in the 2007 figure, if one has regard to inflation. In the circumstances I am not persuaded that the tribunal have erred at law in their analysis in this case. To the extent that there is an error of fact with respect to the equivalent job that the appellant could hold, if anything it has slightly reduced the findings with respect to income based upon the analysis of the appellant’s actual circumstances.
In this case the tribunal has gone on to consider the income and expenses of the parties under s.117(4). It is apparent from the body of the decision that the tribunal have carefully considered the actual expenses of the applicant and respondent when they were together in order to identify the moneys available to the appellant in this case. In this regard, I have regard to the comments of the High Court in Minister for Immigration v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481; (1996) 70 ALJR 568; (1996) 9 Leg Rep 2; (1996) 41 ALD 1:
[272] 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.
As it is apparent that the tribunal have identified and made findings with respect to the actual earnings and expenses earlier in the decision there was not a need for the more usual level of detail in the reasons at this step of the process.
In this case I’m not persuaded that the appellant has established that the tribunal erred in law and therefore I have no choice but to dismiss the appeal.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Associate: Katherine Sudholz

Date: 24 March 2010