Malak & Mairie & Anor (SSAT Appeal)
[2012] FMCAfam 1138
•13 November 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MALAK & MAIRIE & ANOR (SSAT APPEAL) | [2012] FMCAfam 1138 |
| CHILD SUPPORT – APPEAL – Appeal from decision of Social Security Appeals Tribunal – where SSAT set aside the decision under review and substituted a new departure determination – review of decision by tribunal – whether Appellant not granted procedural fairness – merits review. PRACTICE AND PROCEDURE – Appeal out of time – leave to appeal – application for leave to appeal out of time – delay – length of delay – reasonable explanation for delay. |
| Child Support (Registration and Collection) Act 1988 (Cth), ss.88, 103X, 104, 110B, 110C Child Support (Assessment) Act 1989 (Cth), ss.98C, 98F, 117 Family Law Act 1975 (Cth) s.117 Victorian Civil and Administrative Tribunal Act 1998 (Vic) s.148 Federal Magistrates Court Rules 2001 rr.1.06, 3.05, 25A.06 |
| Ashcroft & Ashcroft (SSAT Appeal) (2008) FMCAfam 1250 Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 Birdseye v Australian Securities and Investments Commission (2003) ALD 321; [2003] FCAFC 232 Carrigan & Fredericks (SSAT Appeal) [2011] FMCAfam 544 Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 Eades & Cadell (SSAT Appeal) [2009] FMCAfam 275 LDME & JMA (SSAT Appeal) (2007) 38 Fam LR 132; [2007] FMCAfam 712 Lightfoot & Hampson (1996) FLC 92-663 Morse & Potts (SSAT Appeal) [2010] FMCAfam 1305 Osland v Secretary, Department of Justice (2010) 241 CLR 320 Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) (2001) 207 CLR 72 |
| Appellant: | MR MALAK |
| First Respondent: | MS MAIRIE |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | SYC 2617 of 2012 |
| Judgment of: | Scarlett FM |
| Hearing date: | 17 August 2012 |
| Date of Last Submission: | 17 August 2012 |
| Delivered at: | Sydney |
| Delivered on: | 13 November 2012 |
REPRESENTATION
| Counsel for the Appellant: | The Appellant appeared in person by telephone |
| Solicitors for the Appellant: | No solicitor on the record |
| Counsel for the first Respondent: | The First Respondent was excused from attending |
| Solicitors for the first Respondent: | No solicitor on the record |
| Solicitor for the second Respondent: | Ms Schuster |
| Solicitors for the second Respondent: | Legal Services Division, Department of Human Services |
ORDERS
The Appellant is granted leave to institute an Appeal by filing a Notice of Appeal on 8 May 2012.
The Appeal against the decision of the Social Security Appeals Tribunal made on 9 February 2012 and despatched on 20 February 2012 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Malak & Mairie (SSAT Appeal) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 2617 of 2012
| MR MALAK |
Applicant
And
| MS MAIRIE |
First Respondent
| CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
Appeal
This is an Appeal from a decision of the Social Security Appeals Tribunal made on 9th February and despatched on 20th February 2012. The Tribunal set aside the decision under review and substituted a new departure determination, providing that:
a)for the period 8th November 2010 to 12th May 2011 the Appellant’s adjusted taxable income was set at $61,256.00 per annum; and
b)for the period 13th May 2011 to 31st December 2011 the rate of child support payable by the Appellant was set at nil.
In his Notice of Appeal filed on 8th May 2012 the Appellant seeks the following orders:
1. For paragraph 75 of the SSAT decision be set aside and my actual taxable income for the period of 8 December 2010 to 12 May 2011 be set at $32,985.14.
2. From the 13th May 2011 to 8th March 2012 the rate of child support payable be set to Nil.
The Appellant raises nine separate grounds in his Notice of Appeal:
1. The presiding members of the Social Security Appeals Tribunal erred in not properly applying Part 5 of the Child Support (Assessment) Act 1989, subparagraph 117(2)(c)(ib)
2. The members erred in not considering that my employment was on a contract basis, from the 29/9/2010 with no further extensions possible. The members did not take into account that after the 28th May 2011, even if I was not incarcerated, I would have been unemployed. The members have erred in extrapolating my income for the remaining four months.
3. At paragraph 69 the members clearly state the period of the child support assessment which was from the 8th November 2010 to the 12th May 2011, but have not applied my taxable income for the remaining four months.
4. The members erred at paragraph 35 in finding that from the 1st November 2010 that the child support assessment was based on a taxable income of $21,218. The Child Support Agency assessed me on an inflated income from the 8th November 2010 to the 31st October 2011 of $61,776. However my true undisputed taxable income for the period of 1st November 2010 until 31st December 2011 was $32,986.14 as stated at paragraph 30.
5. The members erred at paragraph 33 by not giving regard to section 117(4)(e)[1]…(3) the 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.
[1] A reference to s.117(4)(e) of the Child Support (Assessment) Act 1989 (Cth)
In subsection (i), the members did not give reasonable consideration of the financial hardship that inflated child support payments would have on me and my ability to support myself. The members did not have any documents before them of my living expenses prior to 12th May 2011, nor did they ask questions regarding my financial circumstances prior to 12th May 2011.
6. In subsection (ii) the members gave no consideration that from 21st October 2010 until 12th May 2011, I had 50% care of my three year old daughter, [X] or the costs associated with her care.
7. At paragraph-h 63 the members gave no consideration to section 117(4)(g) …(g) Any hardship that would be caused:
(ii) to
(A) the liable parent
(b) any other child or another person that the liable parent has a duty to support.
The members gave no consideration to the financial hardship that would have been placed upon me while trying to support my three year old daughter, based on payments incorrectly calculated on an inflated income of $61,776, when my actual income was $32,985.14. The financial hardship would have meant that I would not have been able to clothe my daughter or afford food for us.
8. The members have erred at paragraph 51, the members conceded that I was contracted from 20th September 2010 to 28th May 2011 and received a taxable income of $32,985.14. The members erred in extrapolated that out to $61,256 for the year, knowing the contract ended on 28th May 2011 and no further extensions of the contract (were) possible. The members have erred in assessing me at $31 per hour for a 12 month period, when only contracted to work for 8 months.
9. At paragraph 52 the members assessed me having an asset worth $230,000 but have not taken into consideration at paragraph 55 and paragraph 61 my living expenses or monthly mortgage of $1,494 or other household expenses such as electricity, gas, water, home insurance and council rates.
The Appellant filed an affidavit sworn or affirmed on 10th March 2012 in which he reiterated his grounds of appeal and the first order that he sought in his Notice of Appeal. He also stated:
I further seek that I be assessed to pay nil from the 12th May 2011 until 31st December 2012 as I am in custody and receiving no income.[2]
[2] Affidavit of Mr Malak 10.3.2012 at paragraph [12]
The Child Support Registrar filed a Notice of Address for Service on 8th June 2012.
On 10th June 2012 the First Respondent, the payee, filed:
a)a Notice of Address for Service;
b)a Reply; and
c)an affidavit sworn or affirmed on 15 June 2012.
The First Respondent should have filed a Response rather than a Reply, but nothing turns on that point. The meaning of the document is clear and the Court may, in the interests of justice dispense with compliance, or full compliance, with any of the Rules at any time (see Subrule 1.06(1)).
In her Reply the First Respondent seeks the following:
1. That the appeal by the Applicant be dismissed as it is out of time.
2. That if the appeal is granted to the applicant the Court order the sum of $10,000 to be paid into Court by the applicant to cover any costs that I may have should his appeal be granted and not successful.
3. That I be excused from attending Court either in person or by phone because I cannot afford the trip to Sydney nor take further time off work.
In her affidavit of 15th June 2012 the First Respondent notes that the Appeal is out of time, as the Appellant had received the Tribunal decision on 10 March but did not file his Notice of Appeal until 8th May 2012.
The First Respondent goes on to describe the Appellant as “a serial appellant” who has lodged appeals against six decisions of this Court and the Family Court since 2009, as well as against decisions of the Child Support Agency and the Social Security Appeals Tribunal.[3] She states that she would be “seriously prejudiced” if the appeal were to be granted.[4]
[3] Affidavit of Ms Mairie 15.6.2012 at paragraph [2]
[4] Ibid at [4]
On 29th June 2012, the Appellant filed an Application in a Case, in which he sought:
a)an order setting aside the SSAT decision;
b)four orders relating to assessing his child support liability;
c)leave to give oral evidence of his weekly expenditure and costs associated with the care of his daughter; and
d)that if his appeal were to be successful any excess funds already paid to the First Respondent should be credited against his future child support liability.
In his affidavit of 20th June 2012 the Appellant made further submissions about the way he claimed that the Tribunal had erred in assessing his child support liability. He also sought that the Court should review a decision made by the Child Support Agency on 23rd May 2012 not to change his child support assessment because it would not be just and equitable to do so. The Child Support Agency relied on s.98F of the Child Support (Assessment) Act 1989. On 5th June 2012 the Social Security Appeals Tribunal wrote to the Appellant advising him that his application to review that decision was not within its jurisdiction.
The Appellant filed a further Application in a Case and supporting affidavit on 17 July 2012. In that Application he seeks the following Orders:
1. That this Appeal is heard.
2. That Ms Mairie is excused from attending as per her request.
3. That the child support assessment be reduced to $32,968 for the period of 20th September 2010 to 12th May 2011.
In his affidavit of 4th July 2012 the Appellant sets out the steps that he took between 10th March and 8th May 2012 to attempt to file his Appeal documents. He described that he was obliged to file documents through the mail as he has been incarcerated at [omitted] Correctional Centre at all relevant times.[5]
[5] Affidavit of Mr Malak 4.7.2012 at paragraphs [3]-[6]
The Appellant also describes the First Respondent as a “Vexatious litigant” who has filed some 13 different applications to this Court and other Courts.[6]
[6] Affidavit of Mr Malak 4.7.2012 at [7]
Application for Leave to Appeal Out of time
The Child Support Registrar, in a submission filed on 10 August 2012, noted that the Appeal was filed about six weeks out of time and should have been filed by 26 March 2012. However, the Child Support Registrar did not “take a view on whether an extension of time should be granted”.[7]
[7] Outline of the Registrar’s Submissions filed 10 August 2012 page 6 paragraph [27]
The First Respondent deposed that she would be “seriously prejudiced” if the appeal were to be granted[8] and sought an order that the appeal be dismissed because it is out of time. She also sought to be excused from attending the appeal proceedings, to which the Appellant consented.
[8] Affidavit of Ms Mairie 15.6.2012 at [4]
Subsection 110C(1) of the Child Support (Registration and Collection) Act prescribes that an appeal must be instituted within the time prescribed by the applicable Rules of Court or as is allowed under the Rules.
The applicable Rules are, of course, the Federal Magistrates Court Rules 2001. Subrule 25A.06(2) requires an appeal to be filed within 28 days of receiving a written statement of reasons for the decision of the SSAT under subsection 103X(3) or (5) of the Act. The Court may grant an extension of time under Rule 3.05.
In this case, as the Child Support Registrar submits, the written statement of reasons was despatched to the Appellant on 20th February 2012. Allowing seven days for receipt of the statement of reasons, the Appeal should have been filed by Monday 26th March 2012. However, the Notice of Appeal was not filed until 8th May 2012. Thus, the Appeal is just over six weeks late.
The Appellant sets out his explanation in paragraphs [3] to [6] of his affidavit filed on 17th July 2012. He deposed that he attempted to file his Notice of Appeal by post within time, on 15th March 2012, but the documents were returned by the Registry as he had used an incorrect Notice of Appeal. On his second attempt, the documents were received by the Registry on 28th March but were again returned.
His third attempt was delayed, even though he tried to send the documents on 9th April. He has been incarcerated at the Goulburn Correctional Centre and is therefore under some constraint in regard to preparing documents and filing them at Court.
It seems clear that the Appellant has been attempting to file his Notice of Appeal and supporting documents since 10th March and was not successful until 8th May 2012. The delay is relatively short and, in all the circumstances, the Appellant has given a reasonable explanation for the delay.
The Appellant is granted leave to file his Notice of Appeal out of time.
Submissions on the Appeal
The Appellant relied on his affidavit material and also made an oral submission.
The First Respondent was excused from attending and did not participate in the hearing of the Appeal. Her affidavit evidence was taken into account.
The Child Support Registrar filed a written submission on 10th August 2012. The solicitor appearing for the Child Support Registrar, Ms Schuster, also made an oral submission.
The Appellant submitted that there were five main grounds to his Appeal.
First, he submitted that the Tribunal had made an error in applying paragraph 117(4)(d) of the Child Support (Assessment) Act, which requires that for the purposes of subparagraph (1)(b)(ii), consideration be given to the income, property and financial resources of each parent who is a party to the proceedings.
Second, the Appellant submitted that the Tribunal erred in respect of the requirement under paragraph 117(4)(g), by not giving proper consideration to the hardship that would be caused to the liable parent or any other child or another person that the liable parent has a duty to support by the making of or the refusal to make a departure order.
Third, the Appellant submitted that the Tribunal had erred in applying paragraph 117(4)(e), which requires consideration of the commitments of each parent who is a party to the proceedings that are necessary to enable the parent to support himself or herself and any other child or another person that the person has a duty to maintain.
Fourth, the Appellant relied on the decision of Brown FM in Morse & Potts (SSAT Appeal)[9] in that the Tribunal did not conduct its assessment fairly.
[9] [2010] FMCAfam 1305
Fifth, the appellant submits that the Tribunal erred by not accepting an assessment beginning on 31st December 2011.
The Appellant told the Court that he had three children with the First Respondent and one child with another person. He had given oral evidence about the costs of exercising contact with the three children which was not accepted.
The Appellant relied on the decision of Slack FM in Ashcroft & Ashcroft (SSAT Appeal)[10], submitting that the Tribunal made an error of law by not considering his living expenses. He said that he gave oral evidence which was not considered. He also said that the Tribunal made an error of law in not considering an obligation that he had to provide for his youngest daughter.
[10] [2008] FMCAfam 1250
The Appellant submitted that the Tribunal had made an error in that it had not conducted the review in accordance with s.88 of the Child Support (Registration and Collection) Act, which requires the SSAT to pursue the objective of providing a mechanism of review “that is fair, just, economical, informal and quick” (see Morse & Potts[11] at [36]).
[11] supra
He submitted that there was no evidence before the Tribunal to support the First Respondent’s claims. There was unfairness in that the First Respondent was given the opportunity to present evidence of her weekly expenses and when she could not the Tribunal made an estimate. He submitted that there was differential treatment for the two parties by the Tribunal.
In her submission on behalf of the Child Support Registrar, Ms Schuster stated that a submission that the Tribunal erred in applying a provision of the Child Support (Assessment) Act is not a question of law. The Appellant’s assertion that the Tribunal erred in not properly applying a provision of the Act “does not elucidate any link between a question of law, the circumstances of this particular case, and the orders sought”.[12]
[12] Outline of the Registrar’s Submissions at [41]
It was open to the Tribunal to determine that the rate of income earned by the Appellant before he was incarcerated was in excess of the administrative assessment based on the evidence before the Tribunal. Further:
The determination that the ATI be quantified by reference to the average weekly income he[13] derived in the period until 12 May 2011 was a question of fact which was open to the SSAT on the evidence before it. The way in which the SSAT determined the income was not affected by any error of law.[14]
[13] The Appellant
[14] Outline of the Registrar’s Submissions at [46]
As to the asserted failure by the SSAT to have regard to the provisions of s.117(4)(e) regarding the self-support costs of each parent, its failure to inquire as to the Appellant’s self-support costs and the lack of documents regarding the Appellant’s financial circumstances, it was submitted on behalf of the Child Support Registrar that not only did the SSAT go to considerable lengths to inform itself of the Appellant’s financial circumstances in the period before 12th May 2011 but it also had before it the Appellant’s statement about his financial details, including expenses, included in his response of 6th December 2012. The Tribunal specifically referred to this document at paragraph 61 of its decision. Further, the Tribunal was under no obligation to ask further questions when there was material before it and the Appellant had sufficient opportunity to put any relevant information to it, both at the hearing and in writing.
In summary, the Child Support Registrar submitted that, at their highest, the Appellant’s grounds of appeal seek to call into question the Tribunal’s assessment and consideration of the evidence before it, which is in effect asking the Court to review the merits of the Tribunal’s decision.
The Relevant Law
An appeal to this Court from a decision of the Social Security Appeals Tribunal is an appeal on a question of law (Child Support (Registration and Collection) Act, s.110B).
Under s.104 of the Act, jurisdiction is conferred on this Court, the Family Court and other Courts in Western Australia and the Northern Territory.
In LDME & JMA (SSAT Appeal)[15] Halligan FM pointed out at [22] that the term “appeal” is potentially confusing, as the proceedings are within the original jurisdiction of the court hearing them (see Drake v Minister for Immigration and Ethnic Affairs[16] at 581).
[15] (2007) 38 Fam LR 132; [2007] FMCAfam 712
[16] (1979) 24 ALR 577
The High Court has considered similar wording to s.110B in s.148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (the VCAT Act) in Osland v Secretary, Department of Justice[17], where French CJ, Gummow and Bell JUJ (applying Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic)[18] at [79]), held at [17]:
[17] (2010) 242 CLR 320
[18] (2001) 207 CLR 72
It is necessary to refer to the nature of the jurisdiction and powers of the Court of Appeal in an appeal from an order of the Tribunal…The relevant jurisdiction and powers are set out in s. 148 of the VCAT Act, which provides, inter alia:
“Appeals from the Tribunal
(1)A party to a proceeding may appeal on a question of law, from an order of the Tribunal in the proceeding…”[19]
[19] (2010) 241 CLR 320 at 331 [17] per French CJ, Gummow and Bell JJ
Their Honours went on to hold:
Section 148 confers “judicial power to examine for legal error what has been done in an administrative tribunal”[20]. Despite the description of the proceedings under the section as an “appeal”, it confers original not appellate jurisdiction; the proceedings are “in the nature of judicial review”.[21]
[20] Roy Morgan Research Centre Pty Ltd v commissioner of State Revenue (Vic) (2001) 207 CLR 72 at 79 [15] per Gaudron, Gummow, Hayne and Callinan JJ
[21] Ibid
The decisions of the High Court in Osland and Roy Morgan quoted above confirm the view of Halligan FM in LDME at [22] that the section confers original jurisdiction on the Court. It is also clear that the proceedings are in the nature of judicial review.
In Carrigan & Fredericks (SSAT Appeal)[22] at [103] and [105], Brown FM provides a succinct summary of the principles to be followed in considering an appeal of this nature:
103.It is the function of this court to determine whether the decision of the SSAT was within its legal powers. That is what is meant by a question of law. It is not the function of this court to examine the merits of that decision…
105.An administrative tribunal exceeds its powers and thus commits a jurisdictional error, which is correctable on appeal in a question of law, if it:
· fails to construe properly the legislative provisions applicable;
· identifies the wrong issues or asks itself the wrong questions;
· ignores relevant material or relies on irrelevant material;
· fails to accord procedural fairness to the party before it;
· 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…[23]
[22] [2011] FMCAfam 544
[23] Footnote omitted
As was submitted by the Child Support Registrar, simply asserting that the Tribunal erred is not to state a question of law. In Birdseye v Australian Securities and Investments Commission[24], Branson and Stone JJ at [14] referred with approval to the decision of Ryan J in Australian Telecommunications Corporation v Lambroglou[25], where his Honour held at 524 “that merely to assert that the Tribunal had erred in law in making a particular finding was not state a question of law”.
[24] (2003) ALD 321; [2003] FCAFC 232
[25] (1990) 12 AAR 515
In the decision under review, the Tribunal reviewed a decision made by an objections officer on 3rd May 2011 to disallow an objection to the decision of the senior case officer on 11th February 2011 to set the Appellant’s adjusted taxable income at $61,776.00 per annum for the period 8 November 2010 to 31st December 2011.
The hearing of the Tribunal took place in Melbourne on 5th January 2012. The First Respondent, who was the applicant before the Tribunal, attended the hearing and gave oral evidence. The Appellant, described as the “second party” in the Tribunal decision, gave oral evidence to the Tribunal by conference telephone.
The Tribunal deferred its decision to obtain further information. On 9th February 2012 the Tribunal set aside the decision under review and substituted a new departure determination:
· For the period 8 November 2010 to 12 May 2011 Mr Malak’s adjusted taxable income is set at $61,256 per annum; and
· For the period 13 May 2011 to 31 December 2011 the rate of child support payable by Mr Malak is set at Nil.[26]
[26] Tribunal Decision page 1
The history of the matter, which is set out in paragraphs [1] to [14] of the Decision, is that from 1st November 2010 to 30th November 2011 the Appellant was assessed to pay an annual rate of child support of $360.00 based on an adjusted taxable income of $21,218.00 for the Appellant and an adjusted annual income for the First Respondent.
The First Respondent applied for a departure from the administrative assessment on the grounds that in the special circumstances of the case, application of administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the payer because of his income, property and financial resources.
The Appellant opposed that application and made a counter application on the basis of:
…costs associated with having contact with the children (Reason 1), the payment of money to a third party for the benefit of the children (Reason 5) and on the basis of his necessary expenses for self support that significantly reduced his capacity to support the children (Reason 7).[27]
[27] Tribunal Decision paragraph [6]
On 11th February 2011 a senior case officer determined that a departure application should be made that:
For the period 8 November 2010 to 31 December 2011 Mr Malak’s adjusted taxable income is set at $61,776 per annum.[28]
[28] Ibid at [7]
The Appellant lodged an objection to that decision on 7th March 2011. That objection was disallowed on 3rd May 2011.
The First Respondent lodged an appeal to the Tribunal on 11th May 2011. The application for review was withdrawn by the First Respondent on 15th July 2011 but reinstated at the Appellant’s requested and the First Respondent’s concurrence on 21st September 2011.
The Tribunal described the issues to be considered as:
· Whether any grounds are established to depart from the administrative assessment; and if so,
· Whether it is just and equitable and otherwise proper to make a particular departure determination.[29]
[29] Tribunal Decision at [15]
The Tribunal recorded that it considered and had access to:
a)Documents provided by the Child Support Agency;
b)The First Respondent’s oral evidence and documents which she provided numbered A1 to A42;
c)The Appellant’s oral evidence and documents which he provided numbered B1 to B23;
d)Further documents from the Child Support agency numbered C1 to C39; and
e)Material provided by the [omitted] bank, [company omitted], [omitted] Home Loans, [omitted] Bank, [superannuation omitted], [company omitted] and [omitted] Lawyers numbered D1 to D113.
In considering whether a ground existed to department from the administrative assessment, the Tribunal noted the undisputed evidence that the Appellant had been remanded in custody facing criminal charges since 12th May 2011. The Tribunal also noted from the Appellant’s payslips that he was paid for the period from 20 September 2010 until 15th May 2011. The Tribunal found that the Appellant had received gross payments during that period in the sum of $32,985.14 and $2,968.66 in compulsory superannuation.
As the Tribunal had noted that the Appellant’s assessment for child support purposes was based on an adjusted taxable income of $21,218.00, the Tribunal was satisfied that he had income available to him in excess of the administrative assessment used in the child support formula from 8th November 2010. Thus, the Tribunal was satisfied that a ground for departure in sub-paragraph 117(2)(c)(ia) of the Assessment Act did exist and there were special circumstances which made it unjust and inequitable to determine the level of financial support to be provided on the basis of the administrative assessment of child support.
The Tribunal then considered whether a departure from the administrative assessment would be just and equitable. It stated that it had regard to the matters set out in s.117(4) of the Act.
The Tribunal went on to consider that the Appellant and the First Respondent had a primary duty to support the three children of their relationship, noting the decision in Ashcroft & Ashcroft[30].
[30] supra
The Tribunal then considered the needs of the children under s.117(6), stating that it had considered the evidence of the parties relating to the needs of the children to assess their reasonableness, referring to the decision of Slack FM in Eades & Cadell (SSAT Appeal)[31] at [22]. The Tribunal also considered the decision of the Full Court of the Family Court in Lightfoot and Hampson[32].
[31] [2009] FMCAfam 275
[32] (1996) FLC 92-663
The Tribunal stated at paragraph [43] of its decision that the First Respondent had said that she had a tenancy agreement but did not wish to submit that that information to the Tribunal. The Tribunal referred to the decision of Morse & Potts[33] at [78]-[80], noting that parties were under a duty to provide full and frank disclosure of all their financial circumstances, and said:
In the absence of evidence to substantiate her rental expenses, the Tribunal is not satisfied that Ms Mairie incurs this expenditure and therefore has reduced her and the children’s expenses accordingly.[34]
[33] supra
[34] Tribunal Decision at [45]
The Tribunal considered the evidence of the Appellant as to his income, property and financial resources in paragraphs [48] to [55]. The Tribunal also considered the evidence of the Appellant’s commitments at paragraphs [61] and [62] of the Decision.
The Tribunal was satisfied that it was just and equitable to set the Appellant’s adjusted taxable income for the period 8 November 2010 to 12th May 2011 at $61,256.00 per annum, a figure $500.00 less than the figure set by the officer of the Child Support Agency for the same period.
The Tribunal set the rate of child support payable by the Appellant for the period 13th May 20th-11th to 31st December 2011 at Nil. The Tribunal stated that it had determined that the current assessment should end on 31st December 2011. The reason for not extending the period of the departure determination after that date was given as “appropriate in the circumstances and there is a level of uncertainty after this date as to Mr Malak’s circumstances.”[35]
[35] Tribunal Decision at [71]
The Tribunal then went on to consider the third step, whether it was otherwise proper to make the particular determination, noting the matters set out in s.98C(1)(b)(ii)(B) and s.117(5) of the Assessment Act. The Tribunal considered that it was otherwise proper, stating that it was appropriate for children to be primarily supported by their parents rather than by government assistance:
The Tribunal finds that Ms Mairie currently receives family tax benefit from Centrelink and an increase in the child support paid by Mr Malak from the administrative assessment will decrease the cost to the community for part of the period.[36]
[36] Ibid at [74]
The Child Support Registrar has submitted, correctly in my view, that a reading of the Appellant’s grounds of appeal and his affidavit material indicates that the Appellant is asking the court to carry out a merits review of the Tribunal’s decision rather than answer stated questions of law.
The Tribunal’s task was to determine whether any of the grounds for departure set out in subsection 117(2) of the Assessment Act were made out and then to:
a)take into account whether it was just and equitable to depart from the assessment; and
b)otherwise proper.
The Tribunal found that a ground for departure in s.117(2)(c)(ia) did exist. It then went on to consider whether it was just and equitable to depart from the administrative assessment, which it did by considering the maters set out in s.117(4) of the Act.
Next, the Tribunal was required to decide whether it would be otherwise proper to make the departure determination, which it did by considering the matters in s.117(5).
The Tribunal considered the matters that it was required to consider when embarking on this three stage process.
The Appellant’s first ground of appeal claims that the Tribunal erred in “not properly applying” Part 5 of the Act. As the Child Support Registrar has pointed out, s.117 is contained in Part 7, not Part 5. More importantly, a claim that the Tribunal did not properly apply the Act and nothing more does not raise a question of law at all (see Australian Telecommunications Corporation v Lambroglou[37] at 524).
[37] supra
Consequently, the Appellant’s first ground fails.
The Appellant’s second ground claims that the members of the Tribunal erred in not considering that his employment was on a contract basis. The Tribunal was aware that the Appellant was employed on contract and made reference to that fact in various parts of the Decision, particularly at paragraphs [29],[30] and [43]. In any event, the Appellant’s ground is doing no more than cavilling at a factual decision and does not make raise any question of law at all.
Ground 2 fails.
The Appellant’s third ground of appeal claims that the Tribunal failed to apply his taxable income of $32,985.14 during the period of assessment, from 8th November 2010 to 12th May 2011. This does not raise any question of law.
Ground 3 fails.
The Appellant’s fourth ground claims that the Tribunal erred in finding that the child support assessment from 1st November 2010 was based on a taxable income of $21,128.00 and that the Child Support Agency assessed him on an “inflated income”. This is purely a matter of fact and raises no question of law at all.
Consequently, the Appellant’s fourth ground of appeal fails.
The Appellant’s fifth ground claims that the Tribunal members erred in not giving regard to s.117(4)(e), which deals with the commitments of each parent to support himself or herself and any other child or other person that the parent has a duty to support. The Tribunal considered this matter at paragraphs [61] and [62], noting at [61] that he had provided a statement of financial circumstances. The Appellant was given the opportunity to give oral evidence, which he did, and to provide documentary evidence, which he also did. The Tribunal was under no duty to inquire further.
The Appellant’s fifth ground fails.
The Appellant’s sixth ground of appeal claims that the Tribunal gave no consideration to the fact that from 21st October 2010 until 12th May 2011 he had 50% care of his three year old daughter. The Child Support Registrar submitted that the only mention of the costs of this child were in the Appellant’s and cross-application, which the Appellant said that he no longer wished to pursue (see at paragraph [13] of the Tribunal Decision). As the Child Support Registrar submits:
The SSAT’s failure to deal with a ground not pressed by the Applicant[38] cannot constitute an error of law.[39]
[38] i.e. the Appellant
[39] Outline of the Registrar’s Submissions page 10 [55]
The Appellant’s sixth ground of appeal fails.
Similarly, the Appellant’s seventh ground, which claims that the Tribunal gave no consideration to the matters under s.117(4)(g), any hardship to the liable parent or any other child or other person the liable parent has a duty to support, must fail, for the same reason as the sixth ground.
The Appellant’s eighth ground claims an error by the Tribunal in extrapolating a taxable income of $32,985.14th from 20th September 2010 to 28th May 2011 to $61,256.00 for the year. The ground also claims that the Tribunal erred in assessing the Appellant at $31.00 per hour for a twelve month period when he was only contracted to work for eight months.
This ground does not raise any question of law at all. The ground deals entirely with a challenge to the Tribunal’s factual findings. It seeks to invite the Court to embark on impermissible merits review.
The eighth ground of appeal must fail.
The Appellant’s ninth ground claims that the Tribunal assessed him in having an asset worth $230,000.00 but did not take into account at paragraphs [55] and [61] his living expenses, mortgage payments and other household expenses such as electricity, gas and water. No question of law is raised in that ground.
Even if the Tribunal failed to give sufficient weight to these expenses, and paragraph [55] of the Tribunal Decision shows that the Tribunal did consider the Appellant’s home loan commitments, at most this is a question of fact, not of law.
The Appellant’s ninth ground of appeal must fail.
It follows that the Appeal will be dismissed.
The Child Support Registrar does not appear to seek costs, as no mention is made of that issue in the written submissions. The First Respondent refers in her Reply at Order 2 to a claim:
That if the appeal is granted the Court order the sum of $10,000 to be paid into court by the applicant to cover any costs I may have should his appeal be granted and not successful.
It is not entirely clear what the First Respondent means by this.
The Court will consider any application for costs that either of the Respondents may seek to make. The Court, in considering any application for costs, must have regard to the matters set out in s.117 of the Family Law Act 1975.
I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 19 October 2012
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