Koca and Koca and Anor (SSAT Appeal)
[2016] FCCA 2055
•22 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KOCA & KOCA & ANOR (SSAT APPEAL) | [2016] FCCA 2055 |
| Catchwords: CHILD SUPPORT – Appeal – Social Security Appeals Tribunal – Appeal from decision of Social Security Appeals Tribunal – merits review – whether Tribunal made finding without evidence. |
| Legislation: Child Support (Assessment) Act 1989 (Cth), ss.98B, 98C, 117 Child Support (Registration and Collection) Act 1988 (Cth), ss.110B, 110F |
| Cases cited: Agrippa & Horton (SSAT Appeal) [2010] FMCAfam 1144 SZGUR v Minister for Immigration and Citizenship (2011) 241 CLR 594 |
| Applicant: | MR KOCA |
| First Respondent: | MS KOCA |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | SYC 5565 of 2013 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 15 April 2014 |
| Date of Last Submission: | 15 April 2014 |
| Delivered at: | Sydney |
| Orders pronounced: | 24 June 2015 |
| Delivered on: | 22 July 2016 |
REPRESENTATION
| Appellant: | In person |
| First Respondent: | In person |
| Solicitor for the Second Respondent: | Mr Gouliaditis |
| Solicitors for the Second Respondent: | Australian Government Solicitor |
ORDERS
The Notice of Appeal filed on 24 September 2013 is dismissed.
The decision of the Social Security Appeals Tribunal made on 8 August 2013 and despatched 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 Koca & Koca & 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 5565 of 2013
| MR KOCA |
Applicant
And
| MS KOCA |
First Respondent
| CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
This is an Appeal from a decision of the Social Security Appeals Tribunal made on 8th August 2013 and despatched on 20th August 2013.
The Tribunal decided to set aside the decision under review and to substitute a decision to depart from the child support assessment for the period 1st March 2012 to 10th July 2016 by:
a)setting the Appellant's adjusted taxable income at $150,000.00; and
b)increasing the annual rate of child support payable by the Appellant by $2,500.00 to include a contribution towards the special needs of the Appellant and his former wife the First Respondent.
The Appellant filed a Notice of Appeal against the Tribunal decision on 24th September 2013. The Notice of Appeal was not supported by an affidavit at that stage, but the Appellant subsequently filed an affidavit sworn on 28th February 2014 to which he annexed a number of documents, particularly a set of written submissions. There were other documents annexed, including email correspondence with (omitted) Bank and an agency acting for American Express, a copy of the Child Support Registrar's notice of determination, copies of child support assessments, copies of individual income tax returns and a variety of other documents.
The First Respondent filed an affidavit affirmed on 21st March 2014 and a list of documents upon which she sought to rely. The Appeal was listed for hearing on 15th April 2014.
Notice of Appeal
The Appellant sought the following orders:
(1)that the determination of the Social Security Appeals Tribunal in application (omitted) made 8th August 2013 be set aside;
(2)that the Applicant's liability for child support be assessed on the basis of an adjustable taxable income based on the income disclosed in the 2013 income tax return annexed to the applicant's[1] financial statement filed in these proceedings, together with an additional amount of $2,500.00 per year (children's special needs).
[1] i.e. the Appellant
Grounds of Appeal
The Appellant relied on the following six grounds of appeal:
(1)that the finding of the Tribunal that the income of what the Applicant would receive in 2013 could be determined by consideration of the income of the Applicant[2] in 2010 as a percentage of the gross income of the company known as (omitted) was made without evidence to support that assertion (paragraph 53);
(2)that the finding of the Tribunal that the Applicant[3] has engaged in deliberate non-disclosure of his property, financial resources and income, was made without evidence to support that assertion (paragraph 62);
(3)that the Tribunal finding that by paying the proceeds of a family law property settlement to his sister the Applicant was divesting himself of property was a finding made without evidence (paragraph 65);
(4)that the finding of the Tribunal that the Applicant had significant income and financial resources from the business known as (omitted) and other sources, was made without evidence (paragraph 66);
(5)that the finding of the Tribunal that the Applicant has total income and financial resources equivalent to a person who is earning $150,000.00 per annum, was made without any supporting evidence (paragraph 67);
(6)that the finding of the Tribunal that the requirement for the Applicant to pay child support in the vicinity of $390.00 per week would not cause the Applicant hardship was made without evidence (paragraph 120).
[2] sic
[3] sic
Background
The background facts are succinctly set out in the Child Support Registrar's submissions filed 3rd April 2014 at paragraph 14. Essentially:
(1)The Appellant and the First Respondent are the parents of two children, X born (omitted) 2003 and Y born (omitted) 2005.
(2)Up until 29th February 2012 the Appellant's "adjustable taxable income" had been set by a departure determination made by the SSAT to $120,745.00. For the period 1st March 2012 to 30th November 2012 the Appellant was assessed to pay an annual rate of child support of $2,452.00, a fixed annual rate based on his 2011 adjustable taxable income of nil.
(3)On 8th March 2012 the First Respondent applied for a departure determination. That application was refused by a delegate of the registrar on 28th June 2012.
(4)On 22nd March 2013 an objection to that decision was allowed and the Appellant's taxable income was set at $117,012.00 for the period 20th April 2012 to 10th July 2016.
(5)On 5th April 2014 the appellant applied for further review by the SSAT. A hearing took place on 5th August 2013.
(6)On 8th August 2013 the SSAT made the decision set out in (1) above.
The Tribunal Decision
The Tribunal made its decision on 8th August and despatched the decision on 20th August 2013.
The Tribunal first of all set out the legislative framework and the issues it had to determine after having given a history of the proceedings between the parties. In considering the legislative framework the SSAT noted that a liable parent or a carer may apply to the Child Support Registrar for a determination to depart from the child support administrative assessment under part 6A of the Child Support(Assessment) Act 1989 (Cth), s. 98B.
Section 98C provides that the Registrar may make a determination to depart from the formula assessment and establishes a three step process. The Child Support Registrar, and the Tribunal standing in place of the registrar, must be satisfied (1) that one or more than one of the grounds for departure referred to in subsection 117(2) of the Child Support(Assessment) Act exists and (2) that it would be (a) just and equitable as regards the child, the liable parent and the carer entitled to child support and (b) otherwise proper to make a particular determination under this part.
The Tribunal noted that the grounds for departure from an administrative assessment of child support were those set out in subsection 117(2) of the Child Support (Assessment) Act. The Tribunal went on to find that if it was satisfied that a ground or grounds existed and that it would be just and equitable and otherwise proper to make a particular determination, the Tribunal must make one of the determinations prescribed by section 98S of the Child Support (Assessment) Act.
The Tribunal then turned its mind to Issue 1 and asked itself the question:
Does a ground exist to depart from the administrative assessment?
In doing so it considered the Appellant's income, property, financial resources and earning capacity, and referred to subparagraph 117(2)(c)(ia). The Tribunal went on to note that when considering the earning capacity of a parent a decision maker is required to take into account subsection 117(7B) of the Child Support (Assessment) Act.
The Tribunal considered the meaning of the term "special circumstances", which is not defined in the Child Support (Assessment) Act and referred to the decision of Gyselman & Gyselman[4] where the Full Court of the Family Court indicated that for there to be special circumstances the facts of the case must establish something which is special or out of the ordinary. The Tribunal considered the Appellant's oral evidence and submissions in what appears to be a considerable amount of detail.
[4] (1992) 15 Fam LR 219; FLC 92-279
Under the subheading Assessment of Evidence, Findings of Fact and Application of the Law, the Tribunal considered the evidence provided both by the Appellant and his former wife and the information available on the file of the Child Support Agency. The Tribunal found that the first of the three criteria in subsection 117(7B) of the Act was not satisfied and that the Appellant's earning capacity could not be considered, however, the Tribunal went on to consider the Appellant's actual income and financial circumstances.
The Tribunal stated that it is an established principle in the Family Court that the taxable income of a person who is self-employed, such as the Appellant, may not be an accurate reflection of their capacity to pay child support or their financial resources. The Tribunal referred for authority to the decisions of DJM & JLM[5] and to the decisions of Scott & Scott[6], and Carey & Carey[7]. The Tribunal considered that those decisions established that a ground for departure is established for self-employed people who are able to derive additional benefits from their businesses and also have greater control over the structure of their finances than a PAYG employee.
[5] [1988] FamCA 97
[6] (1994) 17 Fam LR 420; FLC 92-457
[7] (1994) 18 Fam LR; FLC 92-489
The Tribunal went on to the issue of financial disclosure noting at paragraph 58 that it found it difficult to get a picture of the Appellant's income and financial resources from the company (omitted) and the extent of his personal expenditure on the evidence that he gave. The Tribunal went on to find at paragraph 59 that it found the Appellant's evidence in relation to the business (omitted) to be incredible and completely unconvincing. The Tribunal referred to the decision of Slack FM, now sadly deceased, in the case of Humphries & Berry (SSAT Appeal[8]) where his Honour dealt with the issue of the disclosure of financial information in matters before the Tribunal. The Tribunal also considered the decision of Halligan FM, as his Honour then was, in Agrippa & Horton (SSAT Appeal )[9]
[8] [2008] FMCAfam 209
[9] [2010] FMCAfam 1144
The Tribunal at paragraph 62 expressed itself to be satisfied that the Appellant deliberately failed to disclose information concerning the operation of the business (omitted) and had sought a reduction of the child support assessed by the objection officer but did not provide the necessary information to properly determine his financial circumstances. The Tribunal said:
This failure and inconsistencies in Mr Koca's evidence were taken into account in assessing his overall credibility.
The Tribunal noted at paragraph 68 that a nil adjusted taxable income was used in the assessment for the appellant from 1st March 2012 and expressed itself satisfied that to base the assessment on the Appellant having no income or financial resources would lead to a result that is unjust and inequitable in light of his circumstances. The Tribunal therefore found special circumstances and that the ground to depart from the assessment was established under subparagraph 117(2)(c)(1a) of the Assessment Act.
The next issue which the Tribunal considered was:
Would departure from the administrative assessment be just and equitable?
The Tribunal considered the matters in subsection 117(4) of the Child Support (Assessment) Act, and then went on to consider the evidence of both the Appellant and the First Respondent. In its assessment of evidence, and findings of fact and applications of law, the Tribunal again referred to the decision in Gyselman's case, and noted the ages of the children and the list of weekly household expenses that had been provided. The Tribunal considered the circumstances of the children in some detail.
The Tribunal then went on to consider the income, property and financial resources and earning capacity of the First Respondent, her necessary commitments and then the income, property and financial resources and earning capacity of the Appellant and his necessary commitments. The Tribunal considered the parents' duty to support others and noted that neither the Appellant nor the First Respondent had a legal duty to support any other person that needed to be taken into account in the child support assessment.
Under the heading Terms and Period of Departure the Tribunal said at paragraph 110 that it considered that in light of his income and financial resources it would be just and equitable for the Appellant to be assessed to pay child support on an adjusted taxable income of $150,000.00. The Tribunal, however, at paragraph 111 looked at the preliminary issue as to whether the Tribunal 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 30th September 2009.
The Tribunal considered the following decisions in applying section 117 of the Child Support assessment Act, being a decision of Dwyer & McGuire[10], a decision of Lindenmayer J in the Family Court, the decision of Kindree & CSR & Anor (SSAAT Appeal)[11], a decision of Riethmuller FM, as his Honour then was, and noted that his Honour had referred to CSR & MMB & DEJ (SSAT Appeal)[12] . The Tribunal noted at paragraph 14 that it could not exercise powers beyond those available to the person who made the reviewable decision which in this case were the powers available to the Child Support Registrar in deciding the objection.
[10] (1993) 114 FLR 325; 17 Fam LR 42; FLC 92-420
[11] [2010] FMCAfam 357
[12] (2007) 220 FLR 245; [2007] FMCAfam 944
The Tribunal noted, however, a differing opinion, being a decision of mine, in Ahern & Ahern & Anor (SSAT Appeal)[13]. The Tribunal elected not to follow that decision, stating that it was unable to discern from the Court's reasons for judgment how the decision of Kindree differed from that in MMB, what is the relevant limit on the registrar's power in making a decision on an objection to a decision on an application apart from administrative assessment, what period the Tribunal is limited in reviewing a decision on an objection to a decision on an application made under part 6A of the Child Support Assessment Act.
[13] [2013] FCCA 436
As it turns out the decision of this Court in Ahern & Ahern was the subject of a successful appeal by the Child Support Registrar.
The Tribunal held at paragraph 118 that it proposed to extend the departure from the assessment until 10th July 2016, the day before the child X’s 13th birthday. The Tribunal then considered the issues of hardship, and then went on to look at what it described as issue 3,
is it otherwise proper to depart from the administrative assessment?
The Tribunal noted the provisions of subsection 117(5) of the Child Support (Assessment) Act and stated at paragraph 123 that the child support law recognises that each parent has a primary duty to maintain their children.
The First Respondent receives family tax benefit and an increase in the child support paid by the appellant may affect the cost to the community. The Tribunal held that it was satisfied that it was otherwise proper to depart from the administrative assessment in the matter and to properly reflect the appellant's income and financial circumstances.
The Tribunal then stated that it had decided to set aside the decision under review and to substitute a decision to depart from the child support assessment for the period 1st March 2012 to 10th July 2016 by, first, setting the Appellant's adjusted taxable income at $150,000.00 and, second, increasing the annual rate of child support payable by the Appellant by $2,500.00 to include a contribution towards the children's special needs.
Evidence and Submissions
The Appellant relied on his affidavit of 28th February 2014 which contained his written submissions. The First Respondent relied on her affidavit of 21st March 2014. The Appellant submitted that the Tribunal had made a number of factual errors in its decision, in particular that the Tribunal did not have evidence before it upon which it made the decisions that it did.
The solicitor for the Child Support Registrar, Mr Gouliaditis, submitted the Appellant had not provided a transcript of the hearing before the SSAT which was vital to his claims that the Tribunal lacked evidence for its findings because the asserted lack of evidence may have been the subject of oral evidence.
Mr Gouliaditis then made a submission about the Appellant's grounds of appeal which, slightly reformulated, he saw to be as follows:
(1)The finding of the SSAT that the income of what the appellant would receive in 2013 could be determined by consideration of the income of the Appellant in 2010 as a percentage of the gross income of the company (omitted) was made without evidence to support that assertion.
(2)The finding of the SSAT that the Appellant has engaged in deliberate non-disclosure of his property, financial resources and income was made without evidence to support that assertion.
(3)The SSAT finding that by paying the proceeds of a family law property settlement to his sister the appellant was divesting himself of property was a finding made without evidence.
(4)The finding of the SSAT that the Appellant had significant income and financial resources from the business known as (omitted) and other sources was made without evidence.
(5)The finding of the SSAT that the Appellant has total income and financial resources equivalent to a person who is earning $150,000.00 per annum was made without any supporting evidence.
(6)The finding of the SSAT that the requirement for the Appellant to pay child support in the vicinity of $390.00 per week would not cause the Appellant hardship was made without evidence.
Mr Gouliaditis submitted that, for the reasons explained earlier in his submissions, the Appellant's failure to procure the transcript of the hearing before the SSAT meant that each ground must be dismissed summarily as the asserted lack of evidence may in each case have been the subject of oral evidence.
In addition, in considering various grounds, with Ground 1 he submitted that the SSAT did not make the finding attributed to it by the Appellant. It merely considered that a comparison between the 2010 and 2000 financial years provides an indication of the benefit that the Appellant was likely to have received from (omitted) in 2013.
In respect of Ground 2 he submitted that the SSAT's finding that the Appellant deliberately failed to disclose information concerning the operation of the business (omitted) was amply supported by the evidence summarised by the SSAT in the decision at paragraphs 37 to 40, 59 and 63.
In respect of Ground 3 Mr Gouliaditis submitted that the basis for the Appellant's challenge to the finding that he had transferred moneys received from a property settlement to his sister was unclear. On his own evidence, as summarised by the SSAT, that was the case.
In respect of Ground 4 it was submitted that the challenge to the finding that the Appellant had significant income and financial resources from the business known as (omitted) and other sources could not be sustained. It was open to the SSAT to reject as implausible the Appellant's proclaimed lack of knowledge in the business using a business name he owned.
In respect of the two Grounds, 5 and 6, Mr Gouliaditis submitted that Ground 5 was a challenge to the SSAT's ultimate estimate of his income and could not be sustained unless the findings challenged in the first four grounds succeeded in part or in whole and that the same criticism applied to Ground 6. He submitted that the notice of appeal should be dismissed.
It is noteworthy that Mr Gouliaditis submitted that the Appellant had filed an extensive affidavit on 28 February 2014 in large part asserting facts and annexing documents not before the Tribunal. Such material is inadmissible and he referred to the decision of Rana v Repatriation Commission[14] He submitted that the Appellant may rely on certain SSAT documents in the hearing of the appeal.
[14] (2011) 126 ALD 1; [2011] FCAFC 124
Conclusions
It is well established that material that was not before the Tribunal is not admissible on judicial review (see Schmidt & Geller(SSAT Appeal). The Appellant has argued six grounds of appeal. For the reasons set out in the submissions of the Child Support Registrar I am of a view that all six grounds of the appeal must fail.
In particular the failure of the Appellant to provide a transcript of the hearing before the SSAT was, as Mr Gouliaditis submitted, fatal to his contention that the Tribunal did not have evidence before it upon which to make its findings. As all of the Appellant's grounds of appeal have failed it follows that the appeal is unsuccessful.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Date: 22 July 2016
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