Loomis and Thurston and Anor
[2014] FamCA 551
•23 July 2014
FAMILY COURT OF AUSTRALIA
LOOMIS & THURSTON AND ANOR [2014] FamCA 551
FAMILY LAW – CHILD SUPPORT – Appeal from a decision of the Social Security Appeals Tribunal – Whether the grounds of appeal amount to an error of law – Where an error of law can occur if there is no evidence to support a finding of fact – Where an error of law is not established by a wrong finding of fact – Where an error of law can occur if a party is denied procedural fairness – Where the Appellant submits an error of law occurred by the SSAT failing to find and report allegations of fraud – Where the Appellant submits an error of law occurred by the SSAT failing to determine that the First Respondent is a vexatious litigant – Where the Appellant submits an error of law occurred as a result of a jurisdictional error – Where the Appellant submits that the SSAT demonstrated bias – Where no error of law established – Where all grounds for appeal fail – Appeal dismissed.
Child Support (Registration and Collection) Act 1988 (Cth)
Child Support (Assessment) Act 1989 (Cth)
APPLICANT: Mr Loomis
1st RESPONDENT: Ms Thurston
2nd RESPONDENT: Child Support Registrar
FILE NUMBER: BRC 1010 of 2012
DATE DELIVERED: 23 July 2014
PLACE DELIVERED: Brisbane
PLACE HEARD: Brisbane
JUDGMENT OF: Forrest J
HEARING DATE: 15 July 2014 REPRESENTATION
FOR THE APPLICANT: Mr Loomis in Person
FOR THE 1ST RESPONDENT: Ms Thurston in Person
SOLICITOR FOR THE 2ND RESPONDENT: Mr JJ
Program Litigation and Review Branch
Department of Human ServicesOrders
(1)That the Applicant’s Amended Notice of Appeal (Child Support) filed 14 March 2014 is dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Loomis & Thurston and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
FAMILY COURT OF AUSTRALIA AT BRISBANE FILE NUMBER: BRC 1010 of 2012
Mr Loomis Applicant
And
Ms Thurston 1st Respondent
And
Child Support Registrar 2nd Respondent
REASONS FOR JUDGMENT
1.This is an appeal against a decision of the Social Security Appeals Tribunal made on 12 December 2013.
2.The Appellant, Mr Loomis, is the father of KK, who, at the time of the SSAT’s decision, was three years of age. The First Respondent to the appeal is the child’s mother, Ms Thurston. The Second Respondent to the appeal is the Child Support Registrar.
3.The couple separated in February 2012 and the child has been living with his mother for 72 per cent of the time and his father for 28 per cent of the time since then.
4.An administrative assessment of child support was made by the Child Support Agency commencing on 1 March 2012. Pursuant to that assessment, based on the 2010/2011 adjusted taxable incomes of $16,828 for Mr Loomis and $33,001 for Ms Thurston, the Appellant was not required to pay any child support.
5.On 2 November, 2012, the First Respondent mother applied for a departure from that administrative assessment. She sought to have the Appellant father’s liability for child support fixed at the annual rate of $5,200 from 1 March 2012. Her departure application was made on the basis that the assessment did not correctly reflect either party’s income, property, financial resources or their capacity to earn an income.
6.On 7 January, 2013, a Senior Case Officer within the CSA made a departure decision and set the Appellant’s adjusted taxable income at $44,750 from 1 July 2012, and at progressively higher figures up to $49,350 for a number of separate periods up to the end of March 2016.
7.The Appellant then objected and on 30 May 2013 an Objections Officer within the CSA set aside the decision of the Senior Case Officer and made a different departure decision. This new decision set the adjusted taxable incomes to be used for child support assessment purposes for the period 1 July 2012 to 31 October 2014 as $52,000 for the Appellant and $28,097 for the First Respondent. Application of these adjusted incomes produced liability on the part of the Appellant for child support for the period 1 July 2012 to 31 May 2013 at the annual rate of $3,609 and from 1 June 2013 at the annual rate of $3,573.
8.The Appellant then applied to the SSAT for a further review of the departure decision, clearly seeking to reduce those amounts, apparently, as he informed the Court at the hearing of this appeal, down to a nil assessment again. The Appellant’s review was heard in Brisbane on 12 December 2013, with both parents participating in the hearing by telephone and giving evidence. The Second Respondent, Child Support Registrar, had supplied a statement and documents as a party to the review but did not appear on the day of the hearing.
9.The decision of the SSAT was to vary the decision under review “to the extent that the adjusted taxable incomes of $52,000 for [the Appellant] and $28,097 for [the First Respondent] set by the Objections Officer are to apply only for the period 2 November 2012 to 31 October 2014.” The SSAT decision expressly stated that “no departure determination applies for the period prior to 2 November 2012 or the period after 31 October 2014.”
10.Accordingly, the SSAT decision effectively put in place a liability on the part of the Appellant to pay child support for his young son for the period between separation in early 2012 and 31 October this year totalling approximately $7,073, or around $220 per month for that whole period.
11.Although that seems a relatively small amount for a parent of a young child to be contributing to the financial support of that child who spends 72 per cent of his time in the care of the other parent, s 110B of the Child Support (Registration and Collection) Act 1988 gives a party to a decision of the SSAT on a review application the right to appeal from that decision. The Appellant exercised that right.
12.The Appellant’s Notice of Appeal was filed in the Federal Circuit Court where such appeals are as a matter of practice usually heard, although this Court also has jurisdiction to hear them. The Appellant and the First Respondent were parties to parenting orders proceedings and property adjustment orders proceedings in that Court at the time that were listed for trial in that Court earlier this year. Not long before the trial, all of the proceedings between them, including this appeal, were transferred to this Court by the Federal Circuit Court Judge in whose docket they were listed. Shortly thereafter, this appeal was discretely listed for hearing before me. Not long thereafter, I heard and determined some interim applications in the property adjustment proceedings and transferred the parenting orders proceedings back to the Federal Circuit Court where, importantly, I expect they should get a speedier trial than if they had remained in this Court.
13.On 15 July, 2014, I heard this appeal. The Appellant and the First Respondent both appeared without legal representation. The Second Respondent was represented by a solicitor. The Appellant had in March this year filed a document described as an Amended Notice of Appeal (Child Support). It contained his listed Grounds of Appeal and his written submissions in support. Although incorrectly numbered, there were fourteen grounds of appeal set out, along with supporting submissions. The Second Respondent filed a Response shortly afterwards. It contained the Second Respondent’s written submissions. The First Respondent did not file any written submissions.
14.At the hearing of the Appeal, the Appellant sought leave to rely upon a further Amended Notice of Appeal (Child Support) filed on the day before the hearing, which included an additional eight grounds of appeal that he wanted to argue. The application for leave to rely on the amended Grounds of Appeal was opposed by the First and Second Respondents. For reasons I gave orally at the time, I refused leave and the Appellant’s case was confined to the Grounds of Appeal listed in his Amended Notice of Appeal (Child Support) filed on 14 March 2014.
The Decision of the SSAT
15.The SSAT decision very briefly set out the matters in issue that required determination. They were whether a ground for departure mentioned in s 117(2) of the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”) existed; whether a departure would be just and equitable as regards the child and the parents; and whether a departure would be otherwise proper.
16.The SSAT then turned to the consideration and determination of whether a ground for departure existed having regard to the child support that had been assessed as against the income, earning capacity, property and financial resources of the parents. There was particular focus on two companies that the Appellant was involved with – an Australian company, C Pty Ltd and a British company, L Ltd.
17.The SSAT found, despite post-separation changes in the ostensible share ownership in the Australian company and also in its office holders, that the Appellant “remains the controller and beneficial owner of” that company. In its reasons, the SSAT observed that the Appellant had acknowledged that “he has continued to run [the company] and to avail himself of all income generated by the company.” It was said that the Appellant also “admitted that he is still the beneficial owner of the company.”
18.The SSAT was satisfied that the Australian company would probably continue to generate income and that the Appellant would continue to receive the benefit of that income, whether that would be by receiving funds as a “director’s loan” (that the SSAT considered would not have to be repaid) or otherwise from the company.
19.As to the British company, the SSAT was satisfied that it owned a building in England that had been recently valued at 335,000 Pounds Sterling with a liability attached of 206,625 Pounds. The building is leased to occupiers. The SSAT found that the Appellant has the power to control this company for his own benefit and that it is likely that he is “deriving some financial benefits from the company.”
20.The SSAT then discussed the Appellant’s expenditure since the couple’s separation and found that money said by the Appellant to be sourced from borrowings from one of his adult children was more likely to have been his own money. The SSAT found that the Appellant did not owe money to his daughter as he asserted.
21.The SSAT went on to find that it “is reasonable and appropriate” to adopt the figure of $1,000 per week as the Appellant’s income and went on to express satisfaction that there are “special circumstances” in this case for a departure having regard to the fact that the income used in the original assessment was $16,828. The SSAT also found it “unjust and inequitable” for the Appellant not to contribute any child support and found that a ground for departure existed as required.
22.The SSAT went on further to consider the question of whether it was just and equitable to depart from the administrative assessment of child support.
23.The SSAT accepted that a company through which the First Respondent mother generates her income had gross income in 2012/2013 of $145,535 and found that it was appropriate to apply the same proportion of expenditure to gross income in that year, as it was satisfied that such expenditure had been incurred in the previous year. That proportion was 80.7 per cent and its application resulted in a finding that the First Respondent’s income for the 2012/2013 year was appropriately set at $28,089.
24.The SSAT then determined, having regard to consideration of the parties’ other assets, liabilities and financial resources that it was appropriate to have in place a departure based on the adjusted taxable income of $52,000 for the father and $28,097 for the mother. However, the SSAT varied the period for which this departure was put in place, making it a shorter period by not backdating it as far back as it was and reducing the period into the future to which it applied.
25.The SSAT gave reasons for this change. The reduced back dating was attributed to the money the parties had available to them at separation and their apparent reliance on the original assessment for most of the year after separation. The reduced period to which the adjusted incomes applied in the future was attributed to the likely changes in the income that could be foreseen in the future and the fact that property adjustment proceedings were expected to take place this year.
26.The SSAT concluded by expressing satisfaction that the departure was otherwise proper having regard to s 117(5) of the Assessment Act because it would increase the rate of child support received by the First Respondent mother and reduce her reliance on an income-tested pension, thus shifting more of the burden of supporting the child from the community to his parents.
The Appeal from the Decision of the SSAT
27.Although conferring a right of appeal from the decision of the SSAT on the parties to that SSAT review, s 110B of the Child Support (Registration and Collection) Act 1988 (Cth) (“the Registration and Collection Act”) limits that right of appeal to an appeal “on a question of law”. Given that the distinction between a question of fact and a question of law can be difficult for experienced lawyers to determine, it is hardly surprising that litigants without legal representation or any legal training at all, who remain caught up in the tumult of post-separation conflict, might have difficulties grappling with the requirement to limit an appeal to questions of law. It is apparent that the Appellant in this case had that difficulty.
28.Litigants without legal representation can certainly expect the sympathy of and assistance from the Court, but they cannot expect favourable treatment. Indeed, at the hearing of this matter, I referred to the words of McHugh J, a former Judge of the High Court, in Gallo v Dawson (1990) 93 ALR 47, where his Honour pointed out that “lack of legal knowledge is a misfortune, not a privilege.”
29.In the document styled “amended Notice of Appeal (Child Support)” filed 14 March 2014, the Appellant began by setting out a discussion of the requirements of s 103X(3)(b) of the Registration and Collection Act before asserting that “a range of questions of errors of law are alleged in this matter.” He then set out, under separate headings, the fourteen grounds upon which he was relying in the appeal.
30.Reading through those lengthy grounds and supporting submissions, I consider them to be fairly described as follows:
First Ground – that the SSAT erred in law in finding that the Australian company was effectively the Appellant’s company and that he had the benefit of its income.
Second Ground – that the SSAT erred in law by failing to take into account the Appellant’s assertions that the transfer of shares in the Australian company from the Appellant to his adult children was done under duress.
Third Ground – that the SSAT erred in law in finding that the Australian and English companies’ “legal structure” (their share ownership and control structures) are founded on shams.
Fourth Ground – that the SSAT erred in law in finding that the Appellant’s adjusted taxable income should be set at $52,000 per annum without any or any adequate evidence.
Fifth Ground – that the SSAT erred in law in not taking into account the Appellant’s costs of spending time with the child.
Sixth Ground – that the SSAT erred in law in failing to take into account relevant considerations in respect to the Appellant’s income, assets, financial resources, liabilities and capacity to pay arrears.
Seventh Ground – that the SSAT erred in law in failing to afford the Appellant natural justice in respect of its assessment of each of the parties’ credibility.
Eighth Ground – that the SSAT erred in law in making findings as to the First Respondent’s income contrary to the evidence.
Ninth Ground – that the SSAT erred in law in making findings as to the Appellant’s future income contrary to the evidence, which findings will cause the Appellant hardship.
Tenth Ground – that the SSAT erred in law by failing to find fraud on the part of the First Respondent.
Eleventh Ground – that the SSAT erred in law by failing to determine that the First Respondent is a vexatious litigant.
Twelfth Ground – that the SSAT erred in law in its findings with respect to alleged liabilities of the parties.
Thirteenth Ground – that the SSAT has demonstrated bias in its discussion of the evidence and its findings.
Fourteenth Ground – that the SSAT’s decision is “unsustainable” and contains “jurisdictional error of law” as the provisions of s 103X of the Registration and Collection Act were not complied with.
31.In the amended Notice of Appeal (Child Support) filed 14 March 2014, the Appellant asserted that he seeks to rely upon the decision of the SSAT and the reasons for that decision. He asserted that he also seeks to rely upon the transcript of the SSAT hearing, two affidavits and a financial statement sworn by him that he filed in proceedings in this Court, and an affidavit of an accountant that he has filed in the proceedings in this Court.
32.At the hearing before me, the Appellant informed the Court that he did not have a copy of the transcript of the hearing before the SSAT and that he had expected this Court to provide that. Relevantly, the Appellant had said in paragraph 75 of his amended Notice of Appeal (Child Support) filed on 14 March, 2014, that he required a copy of the transcript of the hearing before the SSAT to prove some of his arguments. He said:
The cost of said transcript is not yet known but [the Appellant’s] present cash flow may prohibit the cost of acquiring the transcript.
33.The Appellant goes on in that same paragraph to assert, without reference to any particular decision, that the Full Court of this Court has held that, if the interests of justice require it, and the Appellant or Cross-Appellant seeking it cannot afford the cost of the transcript, the Court may in the exercise of its discretion agree to provide the transcript of relevant parts to enable the appeal to proceed. The Appellant went on to say:
.. and [the Appellant] may request the court provide the cost of this transcript.
34.This appeal was listed at a call-over on 17 March 2014. The Order so listing it bears a notation that the Appellant appeared after the matter had been heard on the day and was advised of the orders made. There is no notation of the Appellant having advised the Court that the matter was not ready for hearing or that he was seeking a copy of the transcript of the hearing before the SSAT to be provided by this Court at its expense. This was pointed out to the Appellant by me. The Appellant did not assert anything to the contrary.
35.The Appellant did not submit to the Court that he had actually made an application to the Court for the Court to provide a copy of the transcript at any point in time. Clearly, he has not. In the circumstances, it is very difficult to understand how the Appellant could have come to the hearing of the appeal with the realistic expectation that a transcript of the hearing before the SSAT would be available to him at the hearing, provided by this Court at its expense.
36.In the circumstances, particularly the absence of an application to adjourn the hearing of the appeal, I determined to continue to hear the Appellant’s appeal.
37.The solicitor for the Second Respondent objected to leave being granted to the Appellant to rely on any of the affidavits and the financial statement that he also sought to rely upon on the grounds that none of those formed part of the evidence upon which the SSAT had made its decision. The Appellant confirmed that was the case and was unable to articulate an argument as to how it was therefore appropriate for the Court to give consideration to those affidavits in determining whether the SSAT had erred in law as submitted by the Appellant. Accordingly, I refused to give the Appellant leave to rely on those affidavits and financial statement.
The Appellant’s submissions
38.At the hearing of the appeal, the Appellant informed the Court that he principally relied upon the written submissions contained within the amended Notice of Appeal (Child Support) filed on 14 March 2014 in support of his appeal. However, in addition, he argued, in respect to his first ground of appeal, that the SSAT had also erred in law by not calling for and ensuring that evidence as to the liabilities of the Australian company was put before it for consideration.
39.In his written submissions, the Appellant has emphasised his submission that the SSAT has erred in law by not complying with the statutory obligations imposed by s 103X(3)(b) of the Registration and Collection Act. That section provides relevantly as follows:
The SSAT must, within 14 days after making the decision,
…give to each party a written notice … that(i)sets out the reasons for the decision; and
(ii)sets out the findings on any material questions of fact; and
(iii)refers to evidence or other material on which the findings of fact are based.
40.The Appellant submits, as a general proposition in his appeal as well as in respect to some of his listed Grounds of Appeal, that the SSAT did not adequately comply with this obligation, thus an error of law has occurred. It is important, however, to consider the merits of such submission when assessing the argument in respect of each specific ground of appeal having regard to the authoritative acceptance that s 103X(3)(b) imposes no obligation on the SSAT “to disclose the process of reasoning leading to its decision, nor the adequacy of that reasoning process, but rather only the basis of the decision”.[1]
[1]Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 and Child Support Registrar & Crabbe and Anor [2014] FamCAFC 10.
The Second Respondent’s submissions
41.Unsurprisingly, the First Respondent, also without legal representation or any legal training, could make no submissions of any assistance to the Court.
42.For the Second Respondent, it was submitted that the mere assertion that the SSAT erred in law in making a particular finding is not to state a question of law. Undoubtedly, that submission is correct. Accordingly, each of the Appellant’s asserted Grounds of Appeal must be carefully considered to determine if it actually identifies a question of law on which the SSAT has erred. Effectively, this is what the Second Respondent has done in its written submissions in which it ultimately submits that not one question of law is actually identified by the Appellant in all of his stated grounds and that no error of law has been established.
43.The written submissions of the Second Respondent also need to be considered in respect of each of the Grounds of Appeal asserted by the Appellant. That is what I have done.
Some principles of assistance
44.In Child Support Registrar v Crabbe and Anor[2] the Full Court of this Court set out principles that it determined emerged from the authorities that were relevant to the appeal the Full Court was determining. I consider that list of principles equally relevant to the determination of this appeal. They are:
·The question of whether there is evidence to support a finding of fact or an inference drawn from findings of fact is a question of law.
·The making of a finding of fact or the drawing of an inference in the absence of evidence is an error of law.
·A wrong finding of fact is not an error of law.
·A finding of fact based on reasoning that is “demonstrably unsound” or on an “illogical course” or a “faulty process” of reasoning is not an error of law.
·Judicial review is not to be over-zealous in seeking to find inadequacy of reasoning by an administrative decision maker; the review of the reasons of an administrative decision maker must not be turned into a reconsideration of the merits of the decision.
·Section 103X(3)(b) of the Registration and Collection Act requires the SSAT to do no more than set out the findings which it did make on facts which it considered material to the decision which it made .
[2] Supra, at [54]
45.With those principles in mind, I turn to consider each individual ground of appeal.
Consideration of the Appellant’s first Ground of Appeal
46.Clearly, if the SSAT’s finding that the Australian company was effectively the Appellant’s company and that he had the benefit of its income was not supported by evidence then an error on a question of law has occurred.
47.As I pointed out to the Appellant during the hearing of the appeal, the SSAT’s reasons record an admission by him that “he is still the beneficial owner of the company”. He confirmed that was correct, effectively making the same admission before me. The reasons also state at [11]:
[The Appellant] acknowledged during the Tribunal’s hearing that he has continued to run [the Australian company] and to avail himself of all income generated by the company.
48.Without being able to persuade me that he did not acknowledge those things as recorded in the reasons, I simply cannot determine that the SSAT’s findings that the Appellant remains the controller and beneficial owner of the Australian company and that he had the benefit of all of its income, were not open to the Tribunal.
49.Further, to assert that the SSAT erred at law by not calling for evidence to be adduced that might have been of relevance is, with respect, an absurd proposition having regard to the adversarial nature of the Tribunal’s review process and the need for parties to such reviews to prove their own cases.
50.This ground of the appeal fails.
Consideration of the Appellant’s second Ground of Appeal
51.That the SSAT in its reasons has not referred to a particular piece of evidence does not demonstrate that it has failed to take it into account. Furthermore, the Tribunal is not obliged to refer to evidence in its reasons upon which it has not based findings.
52.With respect to the Appellant, I cannot see how his evidence that he transferred shares in the Australian company to his adult children under duress, even if that were accepted as true, could support a finding that he does not control the company and does not have the benefit of all the income generated by the company in the face of his own admissions to the contrary.
53.This ground of the appeal fails.
Consideration of the Appellant’s third Ground of Appeal
54.As was submitted for the Second Respondent, there is no error of law in simply making a wrong finding of fact, unless there is no evidence to support that finding.[3]
[3] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
55.The Appellant submitted that the SSAT’s findings about the two companies and his control of them are “not founded upon, or supported by evidence properly before the Tribunal”. However, the reasons of the SSAT include the following:
·Reference to the fact that the Appellant was the sole shareholder and director of the Australian company until late 2012 (after separation from the First Respondent);
·Reference to the fact that the shares in the Australian company were then transferred to his adult children of an earlier marriage and that one of those persons then replaced the Appellant as director only to have since been replaced again by the Appellant;
·Reference to the Appellant’s acknowledgement (already set out herein) that he has continued to run the Australian company and to avail himself of all the income generated by the company and to his admission (already set out herein) that he is the beneficial owner of the shares in the Australian company;
·Reference to the Appellant’s acknowledgement that he has met personal expenses from the Australian company’s funds;
·Reference to the fact that the Appellant held the shares in the English company until 2009 where after they have been held by a trust for the benefit of his adult children of the earlier marriage;
·Reference to the fact that the Appellant is a director of the English company;
·Reference to evidence that the Appellant transferred the shares in the English company in 2009 because the relationship with the First Respondent was failing;
·Reference to evidence that the secretarial fees incurred by the English company have tripled since the separation of the parties and are said to be paid to the Appellant’s 80 year old mother.
56.Accordingly, I cannot find that there was no evidence before the Tribunal upon which the findings under attack were based. Furthermore, I certainly cannot find that such evidence was “not properly before the Tribunal” as the Appellant made no submissions directed at this express assertion, assuming he was meaning to assert that although the evidence was before the Tribunal there was something “improper” or incorrect about how it came to be before the Tribunal. He made out no such argument.
57.This ground of the appeal fails.
Consideration of the Appellant’s fourth Ground of Appeal
58.This ground involved another submission that the SSAT had made a finding “without any or any adequate evidence”, namely the finding that the Appellant’s adjusted taxable income should be set at $52,000 per annum.
59.Of course, as already discussed, an argument challenging the “adequacy” of the evidence does not go to a question of law as such. Only if it is established that there was no evidence upon which the finding could be supported is there an error of law demonstrated.
60.The reasons of the Tribunal disclose the following:
·Reference to evidence that the net profit of the Australian company for 2012/2013 will be around $20,000;
·Reference to evidence that the sales of the Australian company to that point in time in 2013/2014 had totalled $15,777;
·Reference to evidence that one of the Australian company’s accounts recorded a deposit of $20,564 in September 2013 which the Appellant acknowledged was for “a sale”;
·Reference to acknowledgment by the Appellant that the figure he had given as the sales of the Australian company for the 2013/2014 to the date of the SSAT hearing was mistaken;
·Reference to evidence that in some instances customers of the Australian company pay in advance of the company purchasing the machines it is selling;
·Reference to evidence that the company has diversified;
·Reference to the fact that there were no financial statements for the Australian company before the Tribunal and acknowledgement by the Tribunal that without these the precise quantification of the level of profit was not possible;
·A finding that even if the Appellant’s use of the Australian company’s income is recorded by him as a director’s loan that he will not have to repay the loan based on the evidence that there are no other shareholders than his adult children and his admission that they held the shares for his sole benefit;
·Reference to the evidence that the English company receives rental income of approximately 3,000 pounds per month with outlays of a similar amount;
·Reference to evidence showing interest payments of between 300 and 700 pounds per month and capital repayment of 1,500 pounds per month;
·A finding that it is likely that the Appellant is obtaining some financial benefits from the company;
·Reference to evidence that the Appellant’s living expenses are around $1,000 - $1,200 per week and the fact that he has been able to continue meeting them even after exhausting a $67,500 amount of capital that he had in a bank account at the time of separation;
·Reference to the evidence that the Appellant meets his expenses partly through the money he draws from the Australian company;
·Reference to evidence that the Appellant’s daughter pays the rent for his accommodation which is $500 per week;
·A finding that it is more likely than not that the money the Appellant’s daughter pays for his rent is truly sourced from him based on the daughter’s preparedness to participate in the changes that were made to the Australian company that were found to be “mere charades”;
·Reference to the fact that the $1,000 to $1,200 per week living expenses of the Appellant did not include legal costs or life insurance premiums of which there was evidence;
·Reference to the fact that the Appellant used up $67,500 between separation and October 2012, a rate faster than $1,000 per week.
61.I am satisfied that there was evidence supporting the finding under attack and it has been set out in the reasons. Accordingly, no error of law is demonstrated.
62.This ground of the appeal fails.
Consideration of the Appellant’s fifth Ground of Appeal
63.The Appellant submitted that the SSAT incorrectly disregarded his evidence in relation to the high costs of spending time with the child. In his written submissions, the Appellant asserts that he has high costs of spending time with the child because of orders that require him to “travel up to 300 Kms per week even though the parties live only 6kms apart.” He went on to submit that “in total using ATO guidelines for cost of transport [the Appellant] will have incurred costs of over $11,000.00”.
64.The Appellant also included in his written submissions detail about the cost of defending applications under the Queensland domestic violence legislation that were dismissed. His submission is that he was forced to defend these applications “in order to maintain contact with the child.”
65.Certainly, the grounds for departure from administrative assessment of child support contained within s 117(2) of the Registration and Collection Act include the ground that the costs of maintaining the child are significantly affected because of high costs involved in enabling a parent to spend time with the child. If this ground is being considered, s 117(2B) is also relevant and must be applied. It introduces the application of a mathematical formula and a requirement for the costs related to travel to enable the parent to spend time with the child to exceed a particular percentage minimum of the parent’s adjusted taxable income applied to the particular child support period for the ground to be established. Accordingly, costs of defending applications for domestic violence protection orders are not a relevant consideration at all when this ground for departure is being considered.
66.The reasons of the SSAT do not reveal any discussion of this particular ground for departure. Although the Appellant submits that the Tribunal “incorrectly disregarded” his evidence on point, there is absolutely nothing in the Appellant’s submissions that actually goes to identifying the nature of the grounds he expressly argued before the SSAT or the actual evidence that he put before the Tribunal, and made submissions about, in respect of this particular ground. The Appellant did not seek to take the Court to any such material at the hearing of his appeal.
67.There is reference to the Appellant’s weekly expenditure in the reasons and the SSAT’s consideration of it. There is no mention of the costs of him actually travelling each week to enable the child to spend time with the Appellant. It is not clear whether he actually put any evidence going to that particular matter before the SSAT.
68.In the circumstances, I am simply not persuaded by the Appellant that he has gone anywhere near making out an error of law as alleged under this ground of his appeal.
69.This ground of the appeal fails.
Consideration of the Appellant’s sixth Ground of Appeal
70.The Appellant submitted that the SSAT wrongly disregarded relevant matters in determining the justice and equity of making the order that it did, particularly in respect of his income, property and financial resources, his legal obligation to repay debt and his lack of capacity to pay any arrears resulting. He particularly highlighted being left at separation with $36,000 worth of credit card debt incurred during the relationship and asserted hardship which he submits was not taken into account.
71.However, the reasons reflect consideration by the Tribunal of the Appellant’s evidence of his financial circumstances, including the assets he held (including through the two companies) and the credit card liability of $37,250 and the arrears of child support that existed at the time of the hearing. The Tribunal’s reasons disclose consideration of his hardship submissions and lack of acceptance of them by the Tribunal. The Appellant’s submission that the Tribunal disregarded these matters is clearly incorrect. The Tribunal held that the Appellant had access to the net equity in the two companies that he might have realised to meet liabilities.
72.The fact that the Appellant did not like the SSAT’s findings does not prove error of law by the Tribunal in respect of this matter. He has failed to establish that there was no evidence to support any of these findings of the Tribunal.
73.This ground of the appeal fails.
Consideration of the Appellant’s seventh Ground of Appeal
74.The Appellant submitted that the SSAT erred in law in failing to afford the Appellant natural justice in respect of its assessment of each of the parties’ credibility. He submitted that the SSAT accepted information from the First Respondent and the Second Respondent in preference to evidence given on oath by the Appellant without the Appellant having the opportunity to test that evidence. He also submitted that he was not given the opportunity to explain or clarify matters where findings and inferences adverse to him were being made or drawn.
75.In its submission, the Second Respondent conceded that an appeal based on an alleged denial of procedural fairness is an appeal on a question of law, but submitted that procedural fairness was not denied to the Appellant by the Tribunal in this case.
76.Of course, even though the SSAT is not bound by “legal technicalities, legal forms or rules of evidence” and may inform itself on any matter relevant to a review in any manner it considers appropriate,[4] the Tribunal is bound by the rules of natural justice. As such, it is bound to proceed in a manner that is procedurally fair.[5]
[4] Section 103N of the Registration and Collection Act.
[5]Kioa v West [1985] HCA 81; (1985) 159 CLR 550; Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596; Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 75 ALJR 889; 179 ALR 238. See also Abebe v Commonwealth[1999] HCA 14; (1999) 197 CLR 510 at 553-554 [111]- [113] per Gaudron J.
77.As the Appellant alleges a denial of procedural fairness, the onus to prove that is on him. He made no oral submissions on this point at the hearing, so the Court is limited to considering his written submissions and the SSAT’s reasons in considering whether he has made out a denial of procedural fairness.
78.The Appellant’s submissions include the argument that the SSAT accepted information contained in the records of the Child Support Agency in preference to information provided on oath by him where the identity of the person or persons who recorded the information was not known, where those persons were “not called by the Tribunal for cross-examination” and where the information was not placed in context by the Tribunal and he was not given opportunity to explain or clarify matters before adverse findings were made against him. In respect of the very last point just referred to, the Appellant submitted that there is no record of such opportunity being given to him “on some occasions.”
79.The reasons for the decision of the SSAT reflect that the Second Respondent did not participate in the review hearing but did supply a statement as required pursuant to s 95(3) of the Registration and Collection Act. That statement must set out the findings of fact made by the child support officer whose decision is under review, refer to the evidence on which those findings were based and give the reasons for the decision. In addition, the Second Respondent is recorded as having supplied documents pursuant to that same section, namely every document or part of a document that is relevant to the review of the decision and is in the possession, or under the control, of the Second Respondent. The reasons also record that the Second Respondent had sent documents to the SSAT pursuant to s 95(5) of the Registration and Collection Act which requires any more relevant documents that are obtained by the Second Respondent before the determination of the review to be sent to the Tribunal.
80.Section 96 of the Registration and Collection Act must also give each party to the review a copy of the s 95(3) statement and copies of the documents provided to the SSAT, subject to some exceptions provided for in s 97 and s 98 of the same Act.
81.The Appellant has not submitted that he did not get copies of the documents provided by the Second Registrar to the SSAT prior to the review hearing. There is no basis, on the material before the Court, to find that he did not, or that he did not have an opportunity to properly consider those documents or any provided by the First Respondent prior to the hearing before the Tribunal.
82.The Appellant did not provide any particular detail, either in his written submissions or in any oral submissions, of passages in the reasons that reflected or supported his argument. There was nothing else before this Court that did either. In fact, throughout the reasons, reference to the Tribunal’s consideration of documents that were before it and that it had considered can be found. Some of those documents were clearly provided by the Appellant himself. Some of those were provided by the First Respondent. It is impossible to discern any reference to documents that were actually provided by the Second Respondent. It is impossible to discern from the SSAT’s reasons any reference to evidence that was relied upon by the Tribunal where this Court can determine, without more, that the Appellant had no prior notice of such evidence or of the need to comment upon it if he considered it appropriate.
83.The reasons clearly reveal that the SSAT accepted some submissions made by each of the parties and rejected some submissions made by each of the parties. I am simply not persuaded that procedural fairness was denied to the Appellant by the SSAT just because the Appellant asserts that it was.
84.This ground of the appeal fails.
Consideration of the Appellant’s eighth Ground of Appeal
85.The Appellant submitted that the SSAT erred in law in making findings as to the First Respondent’s income contrary to the evidence. In particular, he submitted that the evidence revealed that the First Respondent had “materially understated her income and assets”.
86.Again, there is only an error of law if there was no evidence to support the Tribunal’s findings in respect of the First Respondent’s income and assets.
87.The SSAT in its reasons set out, by reference to the 2011/2012 tax return of the First Respondent’s company the gross income, expenses and profit of the company. It then set out the evidence of the company’s gross income for the 2012/2013 financial year and the evidence that explained the difference between that year and the year before. It set out discussion of the Appellant’s submissions and why they were rejected before then setting out the reason for taking the course that it did in respect of its findings as to the First Respondent’s income for the relevant period.
88.There was evidence supporting the Tribunal’s decision and it was referred to and considered.
89.The Appellant appears to make arguments as to the reliability of that evidence in his written submissions for this appeal that he may not have made before the Tribunal. At least, this Court does not know whether he made those or not to the SSAT. Such new submissions do not assist him.
90.This ground of the appeal fails also.
Consideration of the Appellant’s ninth Ground of Appeal
91.The Appellant submitted that the SSAT erred in making findings as to the Appellant’s future income contrary to the evidence, which findings will cause the Appellant hardship and that it failed to properly consider the hardship it would cause him.
92.Practically, the substance of this ground of appeal is virtually the same as the substance of the sixth ground of appeal already dealt with by me. The findings as to the Appellant’s income were based on evidence that was referred to. The Appellant’s argument about the hardship he would face was considered and rejected.
93.The Appellant, as disappointed as he might be in the outcome, has not demonstrated error of law on this ground and it too must therefore fail.
Consideration of the Appellant’s tenth Ground of Appeal
94.The Appellant submitted that the SSAT erred in law by failing to find fraud on the part of the First Respondent.
95.Considering the written submissions of the Appellant in support of this ground, it is difficult to understand exactly what he is asserting. It appears as if the Appellant is asserting that the First Respondent is fraudulently claiming social security benefits from the Commonwealth through Centrelink and that the SSAT, in failing to “report the wrongful claim to the relevant authorities” or by failing to investigate it further, erred at law.
96.The reasons provided by the SSAT reveal that the Tribunal was aware that the First Respondent received parenting payment and family tax benefit, as well as some income from her company. It went on to find, in circumstances where tax returns had not yet been prepared for the 2012/2103 financial year that had already been completed, that the profit of the company for that year would be $28,089 and that it is reasonable to assume continuing business profit of around $28,000 for the current financial year. It attributed that income to the First Respondent.
97.There is no suggestion in the reasons that the SSAT found or even considered that the First Respondent might be fraudulently claiming social security benefits. The Appellant did not take this Court to any material that persuaded me that it did. There was no legal obligation on the SSAT hearing the review application to investigate any assertion or suspicion that the First Respondent might be fraudulently claiming social security benefits. The SSAT is not a branch of the Australian Federal Police or the Queensland Police Service. Its role is not to investigate alleged criminal acts.
98.The Appellant did not persuade me that the SSAT somehow erred in law in not reporting the First Respondent to “the relevant authorities”. Later in his written submissions, under a separate Ground of Appeal, the Appellant made more assertions going to the issue of alleged social security fraud by the First Respondent. Those do not prove error of law on the part of the SSAT in its decision on the review. If the Appellant considers that there are grounds for complaint to “the relevant authorities” that is a matter for him. He can, if he has not already, make the complaint to those authorities. That might have better effect than a mistaken assertion that the SSAT has erred at law for not making such a complaint itself.
99.This ground of the appeal also fails.
Consideration of the Appellant’s eleventh Ground of Appeal
100.In a Ground of Appeal similar to the last one, the Appellant submitted that the SSAT erred in law by failing to determine that the First Respondent is a vexatious litigant. He appears to be asserting that the SSAT was also under some obligation in its determination of the review application to investigate and ascertain if the First Respondent was a vexatious litigant who had brought child support departure applications to “distract [the Appellant] from the Family Law and Child Support proceedings.”
101.With respect to the Appellant, there is no such legal obligation on the SSAT to do that. There is simply no merit whatsoever in this ground of the appeal and it also fails.
Consideration of the Appellant’s twelfth Ground of Appeal
102.The Appellant submitted that the SSAT erred in law in its findings with respect to alleged liabilities of the parties. This is yet another attack on findings of fact made by the Tribunal which can only succeed if there was no evidence whatsoever upon which the findings could be based.
103.The Tribunal might have made contrasting findings in respect of the genuine nature of loans each party said were owed by them to family members, but it is entitled to do that if satisfied on the evidence and did so. I am satisfied by reviewing the Tribunal’s reasons that the evidence upon which it based those findings was referred to and did support the findings. No error of law is demonstrated and this ground of the appeal also fails.
Consideration of the Appellant’s thirteenth and fourteenth Grounds of Appeal
104.The Appellant submitted that the SSAT has demonstrated bias in its discussion of the evidence and its findings. He has also submitted that the Tribunal’s decision is “unsustainable as it goes to jurisdictional error of law which would otherwise not affect the decision.”
105.With respect to the Appellant, the written submissions under these asserted Grounds of Appeal demonstrate a complete misunderstanding of the law. It is apparent that the Appellant considers that the SSAT’s decision shows bias simply because the decision is contrary to what he argued for. The Appellant, by his written submissions, demonstrates that he has no proper understanding of what is required to prove an allegation of bias, either actual or apprehended.
106.Whilst clearly the Tribunal made a number of crucial findings based on its assessment of the credibility of the parties, a review of the reasons does not reveal any evidence that either of the two members of the Tribunal, or both of them, did not bring impartial minds to the process. I am satisfied the fair minded observer could not conclude otherwise. Neither actual nor apprehended bias is evident.
107.As to asserted “jurisdictional error of law”, just as the solicitor for the Second Respondent correctly submitted, there is simply no specificity or particularity given in respect of the alleged jurisdictional error. In my judgment, no reader of his written submissions could discern the Appellant’s actual complaint under this Ground.
108.There is no merit in either of the thirteenth of fourteenth Grounds of Appeal and they both must fail.
109.As is now clear, the Appellant has failed on all of his Grounds of Appeal and his appeal must, accordingly, be dismissed. I so order.
I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 23 July 2014.
Associate:
Date: 23 July 2014
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