Lovell and Child Support Registrar and Anor
[2015] FCCA 2507
•21 September 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LOVELL & CHILD SUPPORT REGISTRAR & ANOR | [2015] FCCA 2507 |
| Catchwords: CHILD SUPPORT – Administrative Appeals Tribunal (Social Services and Child Support Division) – appeal from a decision of the AAT in a child support first review. |
| Legislation: Family Law Act 1975 (Cth) Child Support (Assessment) Act 1989 (Cth) |
| Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707 Child Support Registrar & Ahern and Anor [2014] FamCAFC 105 Comcare Australia v Lees (1997) 151 ALR 647 |
| Applicant: | MR LOVELL |
| First Respondent: | CHILD SUPPORT REGISTRAR |
| Second Respondent: | MS SMART |
| File Number: | PAC 502 of 2014 |
| Judgment of: | Judge Dunkley |
| Hearing date: | 18 May 2015 |
| Date of Last Submission: | 18 May 2015 |
| Delivered at: | Parramatta |
| Delivered on: | 21 September 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Wong |
| Solicitors for the Applicant: | Adams & Partners Lawyers |
| Advocate for the First Respondent: | Mr Eskerie |
| Solicitors for the First Respondent: Counsel for the Second Respondent: Solicitors for the Second Respondent: | Sparke Helmore Lawyers Mr Longworth Atkinson Vinden |
ORDERS
The amended Notice of Appeal filed on 4 July 2014 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Lovell & Child Support Registrar & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 502 of 2014
| MR LOVELL |
Applicant
And
| CHILD SUPPORT REGISTRAR |
First Respondent
| MS SMART |
Second Respondent
REASONS FOR JUDGMENT
(As Corrected)
Introduction
On 2 January 2014 the presiding member of the Social Security Appeals Tribunal (“SSAT”) posted a decisions made on 20 December 2013 in a review (review number 2013/SC003558).
Mr Lovell (“the applicant”) applied for the review.
The other parties to that review were the Child Support Registrar (“CSR”) and Ms Smart (“the second respondent”).
This then is the judgment arising from judicial review of the SSAT decision. The judicial review was heard on 18 May 2015.
The applicant filed his appeal on 6 February 2014.
The applicant filed an amended Notice of Appeal on 4 July 2014.
The amended Notice of Appeal contained 6 grounds of appeal as follows:
1) That the Tribunal erred in law by making a finding of fact, where there was no evidence to support such finding, that the business debts the subject of litigation by the Appellant have a real and significant value.
2) That the Tribunal erred in law by making a finding of fact, where there was no evidence to support such finding, that the Appellants assets are greater than his liabilities.
3) That the Tribunal erred in law by making a finding of fact, where there was no evidence to support such finding, that ‘the Company’ would have a ‘profit’ of $80,000 or more were it not for the costs incurred in pursuing legal action to recover debts.
4) That the Tribunal erred in law by making a finding of fact, where there was no evidence to support such finding, that the Appellant has a capacity to support the Children that is no less than $80,000 per year.
5) That the Tribunal erred in law by conflating the ‘profit’ of ‘the Company’ as income of the Appellant.
6) The Tribunal erred in making a departure order in respect of the period in relation to which it had no jurisdiction, namely 12 February 2013 to 31 December 2015.
At the commencement of the hearing on 18 May 2015, Counsel for the applicant abandoned Ground 6. The abandonment of Ground 6 was appropriate as a consequence of a full court decision in Child Support Registrar & Ahern and Anor [2014] FamCAFC 105.
Each of the CSR and the second respondent seek dismissal of the appeal.
The applicant seeks a setting aside order with respect to the SSAT decision or in the alternative a remittal for a re-determination.
Conduct of the hearing
The applicant relied on his affidavit sworn 6 February 2014 to which was annexed a copy of the decision posted on 2 January 2014.
The applicant had also filed an affidavit sworn 26 February 2015.
His Counsel conceded that affidavit contained new evidence not before the SSAT at the time of the decision and was not relevant to the hearing of the appeal, but may become relevant if the decision was remitted for re-hearing.
A transcript of the proceedings before the SSAT on 22 November 2013 was provided.
Counsel for each of the parties prepared written submissions to which they spoke.
The principal member of the SSAT forwarded to this court a bundle of documents that he considered relevant to the hearing in the SSAT. That bundle became Exhibit A in the judicial review.
Exhibit B was a number of other documents before the SSAT at the time of its hearing.
Chronology and relevant law
Counsel for the parties agreed that paragraphs 1 - 28 inclusive of the written submissions of Mr Longworth of Counsel for the second respondent succinctly and relevantly set out the chronology of the tribunal proceedings, a summary of the relevant legislative provisions and legal authorities.
For completeness they are annexed to this judgment, and adopted as part of this judgment.
Determination
Ground 1
The applicant is the sole shareholder of Property Improvements Pty Ltd (“the Company”).
To determine ground 1 favourable to the applicant it must be decided that findings of fact made by the SSAT were made in error and such funds were insupportable on the evidence before the SSAT.[1]
[1] Comcare Australia v Lees (1997) 151 ALR 647.
The evidence is clear that the applicant is pursuing at some expense through the New South Wales courts debts he alleges are owed to the Company.
The Uniform Rules in New South Wales require certification that court actions have an arguable basis.
The quantum of the amount claimed in that litigation as owed to the Company is large.
The SSAT referred to the court action as speculative. The Macquarie Australian Encyclopaedic Dictionary first publish 2006 contains:
Speculative:
1) relating to, of the nature of, or characterised by speculation, contemplation conjecture or abstract reasoning
2) theoretical, rather than practical
3) …
4) of the nature of or involving commercial or financial speculation.
Clearly unresolved litigation involves these concepts until such time as the court action is settled or finalised by judgment.
Until that time the determined quantum of the claimed debt remains uncertain, what is known at law as a chose in action.
This, however, does not mean the claim has no real or significant value.
Rather its real value is unknown.
The finding of real and significant value was as open to the SSAT as another other, probably more so given that the applicant was still pursuing the claim and expending money to do so, and told the SSAT might get “millions” and later “if everyone does their job”.[2]
[2] See transcript page 20 point 40-45.
There was therefore evidence before the SSAT on which to make the finding of the debts having real and significant value. As held in Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707 at paragraph 575:
“[the] no evidence ground requires there simply be no evidence or other material.”
Here there is evidence and it is the evidence of the applicant.
Ground 2
Like in ground 1 to determine this ground favourably to the applicant he must show the findings were made in error or were unsupportable on the evidence.
The SSAT was entitled to draw the inference that the Applicant’s assets excluded his liabilities. The applicant’s evidence made open this inference. The applicant for reasons known only to him did not provide evidence as to value of his assets. He did in his evidence say he did not expect to have to pay all his liabilities.
This ground is not made out.
Grounds 3 and 4
It is appropriate to consider these grounds together. The same legal principles apply. The findings of the SSAT are intertwined. The findings of the SSAT go to a similar issue.
In essence the SSAT findings were directed to the “policy” that the applicant should have prioritised the paying of income to himself to enable the payment of child support so as to support his children in priority to recovery of debts owed to the Company.[3]
[3] See paragraph 48 of the SSAT decision.
The findings of the SSAT with respect to these grounds were open to them as neither the applicant nor the Company had prepared financial statement. The applicant was “completely in the dark” as to the Company’s profit. His evidence to the SSAT was speculative and self-serving as described in the SSAT decision.
The findings were also open to the SSAT given the applicant’s evidence as to the payment to him of director’s fees and the absence in his evidence, apart from motor vehicle cost, of expenses or overheads.
Neither of these grounds are, therefore, made out.
Ground 5
The same legal principles apply to this ground.
The SSAT has not “conflated” as the applicant asserts.
It was the applicant’s evidence to the SSAT that it was his personal exertions that give rise to the Company’s income.
It was also the applicant’s evidence that he intermingled with the Company’s expenses his personal expenses. The applicant then characterises the funds as he chooses without regard to legality or accountancy practice. The applicant seemed not in his dealings to distinguish between the Company and the personal.
As such there is evidence on which the SSAT’s finding is made.
This ground is therefore not made out.
Conclusion
The applicant has not made out, that is proved on the balance of probabilities, any of the grounds in his appeal.
Therefore his appeal is dismissed and there will be orders made accordingly.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Dunkley.
Date original reasons provided: 21 September 2015
Date corrected reasons provided: 24 November 2015
Annexure – Written Submission of Mr Longworth referred to in paragraph 18
IN THE FEDERAL CIRCUIT COURT OF AUSTRALIA
AT PARRAMATTA
PAC 502/2014
[MR LOVELL]
Appellant
And
[MS SMART]
First Respondent
And
Child Support Registrar
Second Respondent
SUBMISSIONS & LIST OF AUTHORITIES
Prepared on Behalf of
The First Respondent
John Longworth
Barrister-At-Law
Frederick Jordan Chambers
53 Martin Place
SYDNEY NSW 2000
PX 450 SYDNEY
Tel: 9229 7333
Fax: 9221 6944
[A] Key
“CSAA”means the Child Support (Assessment) Act, 1989
“CSRC”means the Child Support (Registration and Collection) Act 1988
“SSAT”means the Social Security Appeals Tribunal
“Registrar”means the Child Support Registrar
“CSADecision” means the Decision of the Registrar of 10 May 2013.
“SSAT Decision” means the Decision of the SSAT of 20 December 2013 No. 2013/SC003558
“TheNotice of Appeal” means the Amended Notice of Appeal filed by the Appellant on 4 July 2014 in these proceedings.
[B] Short History
These proceedings arise from the Appellant's Notice of Appeal filed 6 February 2014, supplanted by an Amended Notice of Appeal filed on 4 July 2014 ("the Notice of Appeal") which seeks, inter alia, to set aside the SSAT Decision.
The Appellant and First Respondent are the parents of 2 children, namely [X] born [omitted] 1996 (presently aged 18 years, 4 months) and [Y] born [omitted] 2001 (aged 13 years, 7 months).
On 12 February 2013, the 1st Respondent applied to the Registrar for a departure from the administrative assessment on the ground that it did not correctly reflect the Appellant's income, property, financial resources or capacity to earn an income.
On 3 April 2013 the Appellant cross-applied on the basis of:
4.1the costs of maintaining [Y] were significantly affected due to her special needs and private education; and
4.2his own level of expenses to support himself which he asserted affected his capacity to support the children.
On 10 May 2013 a Senior Case Officer, acting as delegate of the Registrar, considered the 2 applications and determined special circumstances existed and that there was a basis to depart from the administrative assessment. This decision, the CSA Decision, was to the effect that:
5.1for the period 1 January 2013 to 31 December 2015, the Appellant's adjusted taxable income was set at $63,159.
5.2for the period 1 January 2013 to 31 December 2013, the annual rate of child support payable by the Appellant was decreased by $3,652 being the 1st Respondent's half share of [Y]’s learning therapy, school fees and orthodontic expenses.
5.3for the period 1 January 2014 to 31 December 2014, the annual rate of child support payable by the Appellant was decreased by $1,500 being the 1st Respondent's half share of [Y]’s orthodontic costs for 2014.
On 23 September 2013 the Appellant applied to the SSAT for a Review of the CSA Decision. Although well out of time, the Appellant was granted leave to lodge the application for review.
On 22 November 2013, the SSAT heard oral evidence and received submissions from both the Appellant and 1st Respondent. The SSAT also had before it documents related to the decision under review and, after the hearing, received a printout of the Department's electronic record of care percentage decisions for the assessments. The result of this hearing was the SSAT Decision posted on 2 January 2014.
[C] Relevant Law
The core legislative references are set out in the following paragraphs.
s.88 CSRC sets out the SSAT objective. In particular, s.88(1) states that:
"In carrying out its functions under this Act, the SSAT must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick."
s.103N CSRC states:
1. The SSAT, in reviewing a decision under this Part:
a)is not bound by legal technicalities, legal forms or rules of evidence; and
b)is to act as speedily as a proper consideration of the review allows.
2.The SSAT may inform itself on any matter relevant to a review of a decision in any manner it considers appropriate.
Note: The SSAT Principal Member may give directions as to the procedure to be followed in connection with reviews (see section 103ZA).
S.98B CSAA is the basis for either party to seek a determination from the Registrar for a departure from the assessment.
s.98C(1) CSAA sets out the matters which must be satisfied before a Departure Order is made. The relevant elements of that section are
1. Where.·
a. application is made to the Registrar under section 98B; and
b.the Registrar is satisfied:
i. that one or more of the grounds for departure mentioned in subsection (2) exists or exist: and
ii. that it would be:
A.just and equitable as regards the child, the carer entitled to child support and the liable parent; and
B. otherwise proper;
to make a particular determination under this Part;
the Registrar may make the determination.
s.98C(3) CSAA provides that subsections 117(4) to (9) apply to the Registrar in the exercise of his or her powers under the Division as if any reference in those subsections to the court were a reference to the Registrar and any reference to an order were a reference to a determination.
The relevant elements of subsection 117(4) are
Matters to consider for purposes of subparagraph (1)(b)(ii)
4In determining whether it would be just and equitable as regards the child, the carer entitled to child support and the liable parent to make a particular order under this Division, the court must have regard to:
a.the nature of the duty of a parent to maintain a child (as stated in section 3); and
b. the proper needs of the child; and
c.the income, earning capacity, property and financial resources of the child; and
d.the income, property and financial resources of each parent who is a party to the proceeding; and
dathe earning capacity of each parent who is a party to the proceeding; and
ethe commitments of each parent who is a party to the proceeding that are necessary to enable the parent to support:
i. himself or herself; or
ii. any other child or another person that the person has a duty to maintain; and
fthe direct and indirect costs incurred by the carer entitled to child support in providing care for the child; and
gany hardship that would be caused:
i. to:
A. the child; or
B. the carer entitled to child support;
by the making of, or the refusal to make, the order,· and
ii. to:
A.the liable parent; or
B.any other child or another person that the liable parent has a duly to support;
by the making of, or the refusal to make, the order; and
iii. to any resident child of the parent (see subsection (10)) by the making of, or refusal to make, the order.
5In determining whether it would be otherwise proper to make a particular order under this Division, the court must have regard lo:
a. the nature of the duty of a parent to maintain a child (as stated in section 3) and, in particular, the fact that it is the parents of a child themselves who have the primary duty to maintain the child; and
b. the effect that the making of the order would have on:
i. any entitlement of the child, or the carer entitled to child support, to an income tested pension, allowance or benefit; or
ii. the rate of any income tested pension, allowance or benefit payable to the child or the carer entitled to child support.
The determinations which may be made are set out at s.98S of the CSAA. This includes under s.98(1)(g) "a determination varying a parent's adjusted taxable income;"
For the purposes of s.117(1)(a), the SSAT had jurisdiction to hear the Review pursuant to s.89 CSRC.
For the purposes of s.98B CSAA, the SSAT found that special circumstances existed.[4]
[4] SSAT Decision at [50]
For the purposes of s.98C(1)(a), CSAA, the Application was made pursuant to s.98B CSAA.
For the purposes of s.98C(1)(b)(i), CSAA, the SSAT found that a ground of departure pursuant to subsection (2) applied. That is, that, in the special circumstances of the case, application in relation to the child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for tile child because of the income, property and financial resources of either parent and because of the earning capacity of either parent.[5]
[5] SSAT Decision at [50]
For the purposes of s.98C(1)(b)(ii)(A), CSAA, the SSAT found that the proposed determination was just and equitable.[6]
[6] SSAT Decision at [52-66]
For the purposes of s.98C(1)(b)(ii)(B), CSAA, the SSAT found that the proposed determination was proper.[7]
[7] SSAT Decision at [67-68]
This appeal is brought under s.11OB of the CSRC which provides:
1.“A party to a proceeding before the SSAT under Part VIIA may appeal to a court having jurisdiction under this Act, on a question of law, from any decision of the SSA T in that proceeding.
An appeal on a question of law is more limited in scope than an appeal which involves a question of law. In Australian Postal Corporation v Hughes[8] Justice Flick noted at [7]:
"The jurisdiction being exercised is ... constrained by the requirement that the appeal be ”on a question of law”. In Brown v Repatriation Commission (1985) 7 FCR 302 at 304, Bowen CJ, Fisher and Lockhart JJ observed in respect of this constraint:
The existence of a question of law is not merely a qualifying condition to ground an appeal from a decision of the Tribunal; rather it and it alone is the subject matter of the appeal and the ambit of that appeal is confined to it."
[8] Australian Postal Corporation v Hughes [2009] FCA 1057
A particular question of law which is said to arise from a decision of the Tribunal must be stated with precision as a pure question of law. In LDME & JMA (SSAT Appeal)[9] His Honour Federal Magistrate Scarlett (as he then was) observed at [29]:
"The basis and focus of a section 110B appeal is a question of law. The appeal is not one in which findings of fact per se can be called into question (Comcare v Etheridge [2006] FCAFC 27 at [14] per Branson J, with whom Spender and Nicholson JJ agreed). The Grounds of Appeal called for in the Notice of Appeal in this Court assume the provisions of s.110B. Thus, in my view the Grounds of Appeal to be set out in the Notice of Appeal should ideally be expressed in a way that enables the respondent and the Court to identify the question or questions of law sought to be raised by the appellant and the reasons why a finding for the appellant on that question or those questions should result in the orders sought in the Notice of Appeal being made.”
[9] LDME & JMA (SSAT Appeal) [2007] FMCAfam 712
In Tasman & Tisdall[10] his Honour Federal Magistrate Brown (as he then was) observed at paragraph 37:
Pursuant to section 11OF of the Registration Act, having determined any such appeal, I am authorised to make any order, which I believe is appropriate but particularly may:
a)affirm or set aside the decision of the SSAT; or
b)remit the case to be heard again by the SSAT, either with or without the hearing of further evidence
and observed at paragraph [44] in discussing the appropriate approach to appeals of this nature
[10] Tasman & Tisdall (2008) FMCA 126
An administrative tribunal exceeds its powers and thus commits a jurisdictional error, which is correctable on appeal in respect of a question of law, if it:
a) fails to construe properly the legislative provisions applicable;
b) identifies the wrong issues or asks itself the wrong questions;
c) ignores relevant material or relies on irrelevant material;
d) fails to accord procedural fairness to the party before it;
e) makes an erroneous finding of such a magnitude that it goes to the very jurisdiction which it purports to exercise rendering its decision perverse or unreasonable or otherwise offending logic.
In Farrens & Farrens (SSAT Appeal)[11], His Honour Federal Magistrate Slack (as he then was) observed at [22]:
"There are limits to the capacity of this Court to review findings of fact in any appeal from the SSAT. The mere fact that there has been a wrong finding of fact (even if established) does not necessarily amount to an error of law. It seems clear though that findings of fact, including inferences, may be reviewed to determine whether there has been an error of law."
27. In performing it's task, the Federal Circuit Court is an appellate jurisdiction from the SSAT. The Full Court in Child Support Registrar & Crabbe & Anor[12] relied upon the High Court's decision in Minister for Immigration & Ethnic Affairs v Wu Shan Liang[13] wherein the court stated observed at [51]:
"… [In] Collector of Customs v Pozzolanic ... a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be "concerned with looseness in the language ... nor with unhappy phrasing" of the reasons of an administrative decision-maker. The Court continued: "The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.”
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of tile merits of the decision. This has been made clear many times in this Court."
[11] Farrens & Farrens (SSAT Appeal) [2010] FMCAfam 325
[12] Child Support Registrar & Crabbe & Anor [2014] FamCAFC 10
[13] Minister for lmmigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 [271-272]
In the decision of Crabbe (supra) the Full Court, also referenced the decisions in Minister for Immigration and Ethnic Affairs v Al-Miahi[14], and Minister for Immigration and Ethnic Affairs v Wu Shan Liang (Supra), commenting upon what did and did not constitute an error of law - [54]
"The following principles emerge from these authorities and have relevance to our decision as to whether the Federal Magistrate erred in his review of the SSAT decision in a manner which requires our intervention:
> 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 (Al-Miahi).
> The making of a finding of fact or the drawing of an inference in the absence of evidence is an error of law (Al-Miahi).
> A wrong finding of fact is not an error of law (Al-Miahi).
> 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 (Al‑Miahi).
> 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 (Wu Shan Liang).
> Section 103X(3)(b) of the Registration and Collection Act (by analogy with s 430 of the Migration Act) requires the SSAT to do no more than set out the findings which did make on facts which it considered material to the decision which it made (Yusuf)."
[14] Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744
[D] The Grounds of Appeal
29. The Notice of Appeal sets out 6 grounds of appeal:
a)Ground 1 - That the SSAT erred in law by making a finding of fact, where there was no evidence to support such finding, that the business debts the subject of the litigation by the Appellant have a real and significant value.
b)Ground 2 - That the SSAT erred in law by making a finding of fact, where there was no evidence to support such finding, that the Appellant's assets are greater than his liabilities.
c)Ground 3 - That the SSAT erred in law by making a finding of fact, where there was no evidence to support such finding, that 'the company' would have a 'profit' of $80,000 or more were it not for the costs incurred in pursuing legal action to recover debts.
d)Ground 4 - That the SSAT erred in law by making a finding of fact, where there was no evidence to support such finding, that the Appellant has a capacity to support the Children that is no less than $80,000 per year.
e)Ground 5 - That the SSAT erred in law by conflating the 'profit' of 'the company' as income of the Appellant.
f)Ground 6 - That the SSAT erred in making a departure order in respect of the period in relation to which it had no jurisdiction, namely 12 February 2013 to 31 December 2013.
Grounds 1 to 5 - general submission
It is respectfully submitted that as a general concept, none of the circumstances described by the Appellant constitute an error of law.
To the extent there were 'gaps' in the evidence, these were due to the failure by the Appellant to make appropriate disclosures and/or properly and adequately address the relevant issues. That is notwithstanding the Appellant provided to the Tribunal, and relied, upon 873 documents.[15] The following passages from the SSAT Decision are noted:
a.The Appellant was unable to identify for the Tribunal the source of payments in the company bank account.[16]
b.The Appellant had not prepared financial statements or tax returns, for himself or for his company, for "many years". He was therefore unable to answer straight forward questions as to his knowledge of the basis of the companies' profitability.[17]
c.The Appellant referred to "other related expenses" of the company but did not describe or itemize them.[18]
d.The Appellant changed his evidence to the Tribunal, at one time asserting the company covered its costs and then saying it did not.[19]
e.The Tribunal found the Appellant's evidence about his assets "...to be self-serving and disingenuous...".[20]
f.The Tribunal found the Appellant's evidence about his income and financial resources "...to be unreliable." and that his description of himself as "retired" was not honest.[21]
g.The Tribunal found that the bank statements provided by the Appellant did not support his evidence as to payments by the company but rather showed that the Appellant used the company account to meet his personal expenses. [22]
h.The Appellant failed to provide evidence substantiating his asserted debt owing to the company and that in the absence of substantiation, the Tribunal could not be satisfied as to the Appellant's asserted taxable income.[23]
[15] Transcript [Page 7 at 12]
[16] SSAT decision [32]
[17] SSAT decision [33]
[18] SSAT decision [35]
[19] SSAT decision [36]
[20] SSAT decision [40]
[21] SSAT decision [42]
[22] SSAT decision [43]
[23] SSAT decision [44]
The central findings made by the Tribunal were based upon statements, concessions and admissions made by the Appellant as set out in the Transcript. In particular:
a.The Appellant had not looked for work. [24]
[24] Transcript [page 20 at 0]
b.That the litigation he was involved in could yield to him "millions".[25]
[25] Transcript [page 20 at 45]
c.He anticipated being able to repay his debts.[26]
[26] Transcript [page 21 at 20]
d.That he is keeping his company 'alive' because it holds losses which he seeks to capitalise as well as significant GST tax credits, all of which have real value to him.[27]
e.That contrary to other evidence given, he undertakes consulting work and that his company receives significant income for his personal exertion.[28] Further that having given evidence that he was unemployed, he was in fact "working".[29]
f.That he had not prepared tax returns for his company since 2006.[30]
g.That despite substantial transactions passing through the company accounts, he does not maintain an accounting system for the company but merely relies upon bank statements.[31]
h.That he was unable to identify sizeable deposits to his companies accounts.[32]
i.That he did not know how much money the company was making.[33]
j.That he withdrew $25,000 in cash from his accounts to avoid claims by creditors. [34]
k.That the remuneration received by 'Property Developments' for his consultancies was "Probably a hundred thousand". Within moments, the Appellant revised his evidence to "80,000 or something" and then "Sixty or eighty thousand".[35]
I.That he can make $80,000 a year less "cost items" which the Appellant described as expenses for cars and “…other bits and pieces".[36]
m.That the company, when trading, can turn over 1 to 2 million dollars a year.[37]
[27] Transcript [page 29 at 30-35]; also Transcript [page 50 at 10]
[28] Transcript [page 30 at 15 to page 34 at 46]
[29] Transcript [page 38 at 20-25]
[30] Transcript [page 35 at 29]
[31] Transcript [page 36 at 20-26]; also Transcript [page 39 at 10-20]
[32] Transcript [page 36 at 45 to page 37 at 5]; also Transcript [page 44 at 20-25]
[33] Transcript [page 39 at 9-12]
[34] Transcript [page 48 at 32-40]
[35] Transcript [page 49 at 15-30]
[36] Transcript [page 52 at 20-30]
[37] Transcript [page 50 at 20]
It is respectfully submitted that what the Appellant complains of in Grounds 1 to 5 were inferences available based upon the evidence before the SSAT. Whether the inferences and findings were based upon faulty logic, or an illogical course or were in some respect 'wrong' (and such is not conceded), does not lead to they constituting an error of law.
Ground 1 - That the SSAT erred in law by making a finding of fact, where there was no evidence to support such finding, that the business debts the subject of the litigation by the Appellant have a real and significant value.
The complete finding by the Tribunal was that "...[Mr Lovell] persists with his legal actions because he has a real expectation of a substantial return. It follows the debts owed to him have a real and significant value."
The finding is based in the Appellant's admissions including:
a)That the litigation he was involved in could yield to him "millions”.'[38]
b)That he was hoping to get some form of return.[39]
[38] Transcript [page 20 at 45]
[39] Transcript [page 22 al 29]
The finding was an inference available to the Tribunal. It is based upon evidence. If the inference is wrong or illogical or arrived at by a faulty process, - none of which are conceded - it is not an error of law.
Ground 2 - That the SSAT erred in law by making a finding of fact, where there was no evidence to support such finding, that the Appellant's assets are greater than his liabilities.
The Tribunal makes clear that they are unable to make specific findings as to the value of assets - based largely in the failure of the Appellant to provide relevant evidence. Further, the Tribunal accepted the Appellant would not be able to realise all of his assets at the time.[40]
[40] SSAT Decision [41]
The inference drawn however is again based in the Appellants own admissions. That he does not expect to have to meet all the listed liabilities because his creditors are likely to release him from personal guarantees or they will become irrecoverable at law.[41]
[41] Transcript [page 30 at 30]
The finding was an inference available to the Tribunal. It is based upon evidence. If the inference is wrong or illogical or arrived at by a faulty process, - none of which are conceded - it is not an error of law.
Ground 3 That the SSAT erred in law by making a finding of fact, where there was no evidence to support such finding, that 'the company' would have a 'profit' of $80,000 or more were it not for the costs incurred in pursuing legal action to recover debts
The finding by the Tribunal that "...the company would have a profit of $80,000 a year or more . ..''[42] follows from the analysis of the evidence. In particular:
a.that on his own evidence, the Appellant earned approximately $80,000 in director's fees for the company with overheads limited to vehicle costs.[43]
b.That the Tribunal was prevented from making specific findings because of the self-serving, inconsistent (and inferentially inadequate) nature of the Appellant's evidence.[44]
[42] SSAT Decision [47]
[43] SSAT Decision [45]; Transcript [page 52 at 20-30]
[44] SSAT Decision [45 & 46]
The finding was an inference available to the Tribunal. It is based upon evidence. If the inference is wrong or illogical or arrived at by a faulty process, - none of which are conceded – it is not an error of law.
Ground 4 - That the SSAT erred in law by making a finding of fact, where there was no evidence to support such finding, that the Appellant has a capacity to support the children that is no less than $80, 000 per year.
The submissions as to Ground 3 are repeated.
The finding was an inference available to the Tribunal. It is based upon evidence. If the inference is wrong or illogical or arrived at by a faulty process, - none of which are conceded - it is not an error of law.
Ground 5 -· That the SSAT erred in law by conflating the 'profit' of 'the company' as income of the Appellant
The submissions as to Ground 3 are repeated.
There is no conflation as asserted. It is the Appellant's own evidence that the 'income' to the Company was from his personal exertions and that he runs all his expenses through it.
The Tribunal found the Appellant used the Company account to meet his personal expenses.[45]
[45] SSAT Decision [43]
Accordingly, it is the Appellant who has 'intermingled' his finances and those of the Company enabling them to be treated as the single entity with the company as his alter ago.
At some stages the Tribunal noted that the company bank statements carried expenses for personal items, such as meals at Thai restaurants, which the Appellant agreed were personal items.[46] At other stages the Appellant asserted that as far as the legal bills were concerned, the liability was that of the Company,[47] but that those bills were being paid by he and the company.[48]
[46] Transcript [page 36 at 10-16]
[47] Transcript [page 53 at 0]
[48] Transcript [page 53 at 45 to page 54 at 0]
The Tribunal was entitled to find the earning capacity at $80,000, or even $100,000, based entirely on the admissions of the Appellant.[49]
[49] Transcript [page 49 at 15-30]
The finding was an inference available to the Tribunal. It is based upon evidence. If the inference is wrong or illogical or arrived at by a faulty process, - none of which are conceded - it is not an error of law.
Ground 6 - Jurisdictional error
The submission by the Appellant is based upon the decision of Judge Scarlett in Ahern & Ahern & Anor (SSAT Appeal).[50]
[50] Ahern & Ahern & Anor (SSAT Appeal) [2013] FCCA 436
The decision at first instance was the subject of an appeal which was upheld, judgment of the Full Court being delivered on 23 June 2014.[51] Relevantly, at [72] the Full Court said:
"We therefore conclude that in reviewing the objection decision made in relation to the original departure decision, the SSAT had by virtue of s 103T(1) of the Collection Act, all the powers of the Registrar under Part 6A of the Assessment Act, including the powers in s 98S to make a departure determination in terms not sought in the application for the departure. Moreover, the SSAT also had the power under s 103S(1) of the Collection Act to set aside the decision which was subject to the review and to substitute a new decision (subject always lo procedural fairness considerations).”
[51] Child Support Registrar and Ahern [2014] FamCAFC 105
The ground of appeal does not disclose an error of law.
[E] CONCLUSION
The First Respondent respectfully submits that no error of law has been identified nor exists in the SSAT decision.
As such, the First Respondent respectfully submits that the appeal should be dismissed.
[F] ORDERS SOUGHT
The First Respondent seeks the following orders:
a)The Amended Notice of Appeal filed on 4 July 2014 be dismissed.
b)The Appellant pay the costs of the First Respondent, [Ms Smart], of and associated with the Appeal.
[G] AUTHORITIES
Australian Postal Corporation v Hughes [2009] FCA 1057
Farrens &Farrens (SSAT Appeal) [2010] FMCAfam 325
Tasman & Tisdall [2008] FMCA 126
Child Support Registrar &Crabbe [2014] FamCAFC 10
LDME & JMA (SSAT Appeal) [2007] FMCAfam 712
Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6
Child Support Registrar and Ahern [2014) FamCAFC 105
Dated: 30 March 2015
John Richard Longworth
Frederick Jordan Chambers
CORRECTIONS
A.Annexure referred to paragraph 18 was originally omitted.
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