Kendrick and Child Support Registrar and Anor (SSAT Appeal)
[2015] FCCA 3615
•24 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KENDRICK & CHILD SUPPORT REGISTRAR & ANOR (SSAT APPEAL) | [2015] FCCA 3615 |
| Catchwords: CHILD SUPPORT – Appeal – Social Security Appeals Tribunal – Appeal from decision of Security Appeals Tribunal – procedural fairness – whether the Appellant was denied procedural fairness at the hearing of the SSAT – whether denial of procedural fairness in conduct of Change of Assessment by Child Support Agency – no judicial review of decision of Child support Registrar. |
| Legislation: Child Support (Assessment) Act 1989 (Cth), ss.98B, 98S, 117 Child Support (Registration and Collection) Act 1988 (Cth), ss.103C, 103N, 103S, 110B, 110F |
| Cases cited: Agrippa & Horton (SSAT Appeal) [2010] FMCAfam 1144 CSR & MMB & DEJ (SSAT Appeal) (2007) 114 FLR 325; [2007] FMCAfam 944 |
| Appellant: | MR KENDRICK |
| First Respondent: | CHILD SUPPORT REGISTRAR |
| Second Respondent: | MS WALSH |
| File Number: | SYC 5371 of 2013 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 10 June 2014 |
| Date of Last Submission: | 10 June 2014 |
| Delivered at: | Sydney |
| Delivered on: | 24 June 2015 |
REPRESENTATION
| Appellant: | In person |
| Solicitor for the First Respondent: | Mr Gouliaditis |
| Solicitors for the First Respondent: | Australian Government Solicitor |
| Second Respondent: | In person |
ORDERS
The Notice of Appeal filed on 16 September 2013 is dismissed.
The decision of the Social Security Appeals Tribunal made on 8 August 2013 and posted on 20 August 2013 is affirmed.
Written submissions in support of any application for costs and any affidavits setting out the way in which the costs sought are quantified are to be filed and served within 28 days of the date of these Orders.
Any written submissions in opposition to any application for costs are to be filed and served within a further period of 14 days.
IT IS NOTED that publication of this judgment under the pseudonym Kendrick & Child Support Registrar & Anor (SSAT Appeal) is approved pursuant to s.110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 5371 of 2013
| MR KENDRICK |
Appellant
And
| CHILD SUPPORT REGISTRAR |
First Respondent
| MS WALSH |
Second Respondent
REASONS FOR JUDGMENT
Appeal
This is an Appeal from a decision of the Social Security Appeals Tribunal made on 8th August 2013 and posted on 20th August 2013.
The Tribunal in its decision made a departure determination for administrative assessment of child support by:
a)Setting the Appellant’s adjusted taxable income for child support purposes at $67,724.00 for the period of 24th May 2012 to 31st October 2014; and
b)Increasing the annual rate of child support payable by the Appellant by the amount of $2,305.00 for the period of 1st July 2013 to 30th June 2015.
The Appellant filed a Notice of Appeal against the Tribunal decision on 16th September 2013. The Notice of Appeal named three Respondents:
a)Registrar, Social Security Appeals Tribunal;
b)Child Support Registrar; and
c)Ms Walsh
The Notice of Appeal was supported by an affidavit of the Appellant sworn on 16th September 2013.
On 1st October 2013 the Third Respondent filed an affidavit sworn on 26th September 2013 in which she set out an amount of factual material from which it could be inferred that she opposed the Appeal. She did not file a Response.
The Child Support Registrar filed a Response on 1st October 2013 seeking a variety of interlocutory and procedural orders.
The Child Support Registrar filed a Notice of Address for Service on 24th October 2013.
On 12th November 2013 I made Orders by Consent removing the Registrar of the Social Security Appeals Tribunal as a party and designating the Child Support Registrar as the First Respondent and Ms Walsh as the Second Respondent. Procedural Orders were also made requiring the parties as they now stood to file and serve a list of documents upon which they sought to rely.
On 15th April 2014 the Appeal was listed for final hearing on 10th June 2014.
In his Notice of Appeal, the Appellant sought the following orders:
1.THAT the decision of the Social Security Appeals Tribunal of 8 August 2013 (review number (omitted)) be set aside.
2.THAT the assessment of the Child Support Agency that gave rise to the appeal before the Social Security Appeals Tribunal of 8 August 2013 be set aside.
3.THAT the Child Support Agency be directed to calculate child support on the basis of actual income earned and that any tests applied to one parent to determine earning capacity be applied to both parents.
4.THAT the income of Mr Kendrick be set at $9,881 per annum for the period from 18 May 2013 to 15 July 2013 and $21,000 per annum for the period commencing 15 July 2013.
The Appellant relied on the following Grounds of Appeal:
1.Failure of procedural fairness in the conduct of the Hearing conducted on 8 August 2013 (review number (omitted)).
2.Failure of procedural fairness in the conduct of the Change of Assessment conducted by the Child Support Agency which gave rise to the Hearing of 8 August 2013.
Background
The background facts are succinctly set out in the Child Support Registrar’s Submissions filed on 7th April 2014 at paragraphs [2] and [3]:
2.1The appellant and the second respondent are the parents of two children, M (born (omitted) 1998) and X (born (omitted) 2000).
2.2For the period 17 October 2011 to 15 January 2012, the appellant was assessed to pay an annual rate of child support of $10,580 based on his income estimate of $99,957.
2.3For the periods 16 January 2012 to 25 March 2012, and 26 March 2012 to 1 July 2012, the appellant was assessed to pay a nil rate of child support based on income estimates of $9,881 and $33,566 respectively. For the period 2 July 2012 to 30 September 2012, the appellant was assessed to pay an annual rate of child support of $1,264, based on an income estimate of $44,507.
2.4On 24 May 2012, the second respondent applied for a departure determination under Part 6A of the Child Support (Assessment) Act 1989 (Assessment Act).
2.5On 16 August 2012, a delegate of the Registrar made a departure determination setting the appellant’s adjusted taxable income at $62,007 for the period 2 July 2012 to 31 October 2013.
2.6.On 27 March 2013, an objection against the above decision was allowed in part, and the appellant’s adjustable income was set at $67,724 for the period 2 July 2012 to 30 April 2014.
3.Following the above, the appellant applied for review by the SSAT.[1] A hearing was held on 8 august 2013 and a decision made that same day.[2]
[1] Social Security Appeals Tribunal
[2] Child Support Registrar’s Submissions 7 April 2014
The Tribunal Decision
The Tribunal made its decision on 8th August 2013 and posted its decision to the parties on 20th August 2013.
In its Reasons for Decision the Tribunal set out:
a)the relevant history at paragraphs [1] – [7];
b)the documentary evidence relied upon; and
c)the legislative framework and the issues for the Tribunal to determine at paragraphs [11]-[15].
The Tribunal stated at paragraph [9] that the Appellant attended the hearing in person and the Second Respondent attended by telephone.
The Tribunal noted that the Second Respondent had sought a departure from the administrative of child support on the basis of the special needs of the parties’ child, M, for orthodontic work costing some $6,200.00.
The Tribunal considered the meaning of the term “special needs” and followed the decision of the Full Court of the Family Court in Lightfoot and Hampson[3] as to the definition of the term.
[3] (1996) 20 Fam LR 69; FLC 92-663
The Tribunal also considered the definition of the term “special circumstances” and followed the decisions of the Full Court of the Family Court in Gyselman & Gyselman[4] and Philippe & Philippe[5].
[4] (1992) 15 Fam LR 219; FLC 92-279
[5] (1977) 4 Fam LR 153; (1978) FLC 90-433 (the name is misspelled in the Tribunal Reasons for Decision)
The Tribunal then reviewed the parties’ evidence and formed the view that the treatment for the child was necessary and was a “special need”.
The Tribunal then went on to consider the Second Respondent’s application for departure on the ground that the Appellant had income and an earning capacity greater than was suggested by the income estimates that he had lodged with the Child Support Agency.
The Tribunal referred to the relevant provisions of ss.117(2) and 117(7B) of the Child Support (Assessment) Act 1989 (Cth) and then considered the parties’ evidence on that issue.
The Tribunal’s account of the Appellant’s evidence is quite lengthy and extends to some three and a half pages of the Decision.
In making its decision on this issue, the Tribunal had recourse to the decisions of Slack FM in Humphries & Berry (SSAT Appeal)[6] and of Halligan FM[7] in Agrippa & Horton (SSAT Appeal)[8].
[6] [2008] FMCAfam 409 (the citation appearing in the Reasons for Decision is incorrect)
[7] Later Judge Halligan
[8] [2010] FMCAfam 1144
The Tribunal considered that the Appellant had an earning capacity similar to that which he had been earning with a previous employer and found that a reason to change the assessment under subsection 117(2)(c)(ia) and (ib) of the Child Support (Assessment) Act 1989 had been made out.
The Tribunal noted that the Appellant had not lodged his income tax return for the 2012 financial year.
The Tribunal then went on to consider whether it would be just and equitable to depart from the administrative and in doing so considered the relevant matters set out in s.117(4) of the Child Support (Assessment) Act.
In its consideration, the Tribunal considered the preliminary issue as to whether it was limited to a particular period in deciding whether to make a determination to depart from an administrative assessment which had been in force since 2nd July 2012.
The Tribunal considered the decision of Lindenmayer J in Dwyer & McGuire[9] and then followed the decision of Riethmuller FM[10] in Kindree & CSR & Anor (SSAT Appeal)[11], where his Honour considered but did not follow the decision of Sexton FM[12] in CSR & MMB & DEJ (SSAT Appeal)[13].
[9] (1993) 114 FLR 325; 17 Fam LR 42; FLC 92-420
[10] Now Judge Riethmuller (his Honour’s name is incorrectly spelled in the Tribunal Reasons for Decision)
[11] No citation was given on the Reasons for Decision, but the Court’s media neutral citation number is [2010] FMCAfam 357
[12] Now Judge Sexton
[13] (2007) 220 FLR 245; [2007] FMCAfam 944
The Tribunal then went on to consider the decision of Ahern & Ahern & Anor (SSAT Appeal)[14], a decision of mine where I had taken a contrary view to the decision in Kindree. The Tribunal decided to follow Kindree[15].
[14] [2013] FCCA 436
[15] An appeal by the Child Support Registrar against the decision in Ahern was successful (Child Support Registrar & Ahern [2014] FamCAFC 105, a decision handed down on 23 June 2014)
After considering the evidence, the Tribunal decided that it would be just and equitable to change the child support assessment and set the Appellant’s adjusted taxable income at $67,943.00 from 24th May 2012 until 31st May 2013.
The Tribunal then went on to consider whether it would be otherwise proper to depart from the administrative assessment. In doing so, the Tribunal considered the matters set out in s.117(5) of the Child Support (Assessment) Act. The Tribunal was satisfied that it was otherwise proper to depart from the administrative assessment of child support to reflect properly the Appellant’s earning capacity and financial resources.
Evidence and Submissions
The Appellant relied on three affidavits:
a)his affidavit sworn on 16th September 2013;
b)his affidavit sworn on 21st February 2014; and
c)his affidavit sworn 21st May 2014.
The Second Respondent relied on the following documents:
a)her affidavit sworn 26th September 2013; and
b)her affidavit sworn 11th March 2014.
The Appellant annexed to his affidavit of 16th September 2013 a copy of his written submission to the SSAT that he had forwarded to the Tribunal on 9th August 2013, the day after the hearing.
He also annexed a document dated 16th September 2013 headed Statement in Support of Appeal in which he set out in some 19 paragraphs the reasons why he considered that in the lead-up to the hearing and the hearing itself he was denied procedural fairness.
The Appellant stated that the Tribunal had ignored both documentary and oral evidence that he had submitted and that Tribunal Members “were unnecessarily belligerent and, at times, spoke over each other in an attempt to badger me, without listening to the responses I was giving to their questions of assertions”.
The Appellant expressed the view that the Tribunal was prejudiced against him to the point of ignoring evidence that he had provided.
At paragraphs 10 to 19 of his Statement the Appellant took issue with a number of the Tribunal’s factual findings.
The Appellant annexed to his affidavit a number of documents some of which had already been annexed to his earlier affidavit. Other documents which he annexed to his affidavit were:
a)a copy of the Orders made by Baumann FM[16] in this Court on 17th March 2008 in parenting proceedings between the First Respondent (his former wife) and himself;
b)documents between himself and his former employer (employer omitted) relating to his contractual dispute with the company;
c)an affidavit by one Mr C dated on the first page 1.10.2013 and on attestation clause on the second page 29.10.2013 relating to complaints by the Appellant and himself against (employer omitted);
d)documents relating to correspondence between the Appellant and the Tribunal; and
e)a statement dated 1st November 2013 by one Ms A, a flight attendant who resides in (country omitted) relating to her observations of interaction between the Appellant and his children, a hearsay account of a conversation with the Appellant and her opinion by way of a character reference of the Appellant’s parenting capacity.
[16] Now Judge Baumann
Suffice it to say that this material is inadmissible on the grounds of a lack of relevance.
The Appellant’s third affidavit, sworn on 21st May 2014, annexes the following transcripts:
a)Directions by the Tribunal Presiding Member, Ms Dordevic of a telephone directions hearing on 6th June 2013; and
b)The hearing of the review before the Tribunal on 8th August 2013.
In her affidavit of 26th September 2013, the Second Respondent took issue with the Appellant’s claims about the perceived procedural unfairness of the Tribunal hearing. She deposed that:
a)The Tribunal members exhibited “a degree of patience and tolerance” towards the Appellant despite his lengthy recounting of irrelevant material;
b)Her opinion that the Tribunal did not ignore verbal or written information supplied by the Appellant;
c)Her opinion that the Tribunal’s characterisation of the Appellant as “misleading, evasive and inconsistent” did not appear to have arisen “solely from the Applicant’s[17] deliberate misreading of the Tribunal’s directions but a variety of matters including the fact that the Appellant had not filed income tax returns for the previous two years and had failed to make full and frank financial disclosure.[18]
[17] sic
[18] Affidavit of Ms Walsh 26.9.2013 at paragraphs [5]-[7]
The Second Respondent’s later affidavit of 11th March 2014 is essentially similar.
In his oral submission the Appellant referred to the problem of separating factual matters from points of law. He reiterated his claim that the Tribunal had ignored or discounted much of his evidence. He stated that he had been portrayed as someone who was avoiding paying child support but denied that this was an accurate characterisation.
The Appellant took issue with the fact that the Tribunal did not take into account his submission provided on 9th August 2013, the day after the hearing.
Mr Gouliaditis, the solicitor for the Child Support Registrar, submitted that the Appellant had raised two grounds of appeal on the subject of procedural fairness. One of the grounds relates not to the Tribunal decision at all but the earlier decision of the Child support Registrar which led to the application to the Social Security Appeals Tribunal for review.
It was further submitted that the Appellant had failed to provide proper documentary evidence in support of his case. It was too late for the Appellant to seek to make a further written submission the day after the Tribunal hearing. The Tribunal had set its timetable and had in fact made its decision on the day of the hearing.
The Second Respondent submitted that in the absence of documentation from the Appellant the Tribunal was compelled to weigh the evidence that was before it.
In a submission in reply, the Appellant said that he was not aware that he could have applied for an adjournment.
Conclusions
The Appellant relied on two grounds of appeal:
a)The failure by the Tribunal to provide procedural fairness in the conduct of the hearing on 8th August 2013; and
b)The failure of procedural fairness in the conduct of the change of assessment conducted by the Child Support Agency which led to the application to the SSAT for review.
The second of the two grounds of appeal is not a ground of appeal at all. The jurisdiction of the Court under s.110B of the Child Support (Registration and Collection) Act 1988 (Cth) is that:
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.
As it was submitted on behalf of the Child Support Registrar, the jurisdiction of the Court under s.110B is to review a decision of the SSAT, not any earlier decision of the Child Support Registrar which was the subject of the application to the SSAT for review. Once the Tribunal has made a decision on the review, the Court has no power of judicial review of the earlier decision (Mulholland v Australian Electoral Commission[19] at [38]) and any application for judicial review of the earlier decision would be incompetent (Vitaz v Westform (NSW) Pty Ltd[20] ).
[19] [2014] FCA 136
[20] [2011] NSWCA 254
It follows that the Appellant’s second ground of appeal must fail for want of jurisdiction.
It is the Appellant’s first ground of appeal that must be considered where he alleges that the Tribunal failed to afford him procedural fairness. The Tribunal is required to act fairly in conducting the review. A denial of procedural fairness may give rise to a question of law (see Sullivan v Department of Transport[21] at 342; Clements v Independent Indigenous Advisory Committee[22] at [3]-[8])
[21] (1978) 20 ALR 323
[22] (2003) 131 FCR 28
However, as was submitted on behalf of the Child Support Registrar, a ground that merely asserts a failure to accord procedural fairness without specifying the particulars of that failure and how that failure affected the decision under review is meaningless and without more cannot establish an error of law (Penman & Child Support Registrar[23] at [113]).
[23] [2013] FCCA 492
Subsection 103C of the Child Support (Registration and Collection) Act 1988 entitled a party to make oral and written submissions to the Tribunal (see also s.103N). A party to a review must be given a “meaningful opportunity” to give evidence and present arguments (Minister for Immigration and Citizenship v SZNVW[24]at [19]-[22]; Knibbs & Preston[25] at [99]).
[24] (2010) 183 FCR 575
[25] (2013) 49 Fam LR 620; [2013] FCCA 479
The Appellant was given a meaningful opportunity to give evidence and present arguments. He attended the hearing before the Tribunal, gave evidence and presented arguments. The fact that he did not supply documentary evidence to corroborate some of his claims is a matter for him. The Tribunal could only weigh up the evidence before it as the Second Respondent submitted.
The Appellant made various complaints about the Tribunal hearing. Most of his evidence and most of his submissions are in the nature of merits review, that is to say, that he took issue with the Tribunal’s factual findings. The Appellant did submit at the hearing before this Court that there was a problem in separating factual matters from points of law. Indeed, the Appellant’s submissions failed to grapple with the distinction between questions of fact and questions of law and merely took issue with the merits of the Tribunal’s factual findings and decision.
A question as to whether sufficient weight was placed on an item of evidence is a question of fact. A wrong finding of fact even if it is perverse, will not vitiate a decision in appeals on questions of law.[26]
[26] Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139; Baranski v Comcare 2013) 296 ALR 438; Victor & Duncan & Anor (SSAT Appeal) [2015] FCCA 1073
The Appellant also took issue with the fact that the Tribunal declined to consider the written submission he made on 9 August 2013, the day after the hearing.
The Tribunal specifically referred to this fact at paragraph 10 on the second page of its Reasons for decision, saying:
On 9 August 2013 Mr Kendrick provided the Tribunal with a written submission by email. The Tribunal did not take this late submission into consideration as it did not raise any new issues of relevance, the parties had given their evidence, the hearing concluded and submissions already provided at hearing.[27]
[27] Tribunal Reasons for Decision at paragraph [10] on page 2
I note that the Tribunal Decision itself says that the date the decision was made was “08 August 2013”.
As was submitted by the Child Support Registrar, relying on a decision of mine, the SSAT had already made its decision the day before, such that it was too late for further material to be accepted (Knibbs & Preston[28] at [131]-[134].
[28] supra
The Appellant’s first ground of appeal fails. Thus, the Appeal has been unsuccessful.
The Child Support Registrar sought this relief:
The Notice of Appeal should be dismissed, with costs fixed in accordance with Div 2 of Pt 2 of Sch 1 to the Federal Circuit Court Rules 2001.
Orders
The Orders to be made are that in summary:
a)The Notice of Appeal is dismissed.
b)The decision of the SSAT is affirmed.
c)Written submissions in support of any application for costs are to be filed and served within 28 days.
d)Written submissions in opposition to be filed and served within a further 14 days.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Date: 11 July 2016
1
14
3