Maple and Niu and Anor

[2017] FCCA 2369

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAPLE & NIU & ANOR [2017] FCCA 2369

Catchwords:
CHILD SUPPORT – AAT APPEAL – Where the challenges are to findings of fact – no error of law demonstrated – appeal dismissed.

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth), ss.33, 44, 44AAA

Cases cited:

Carrigan & Fredericks (SSAT Appeal) (2011) 45 FamLR 657
Mickelberg v The Queen (1989) 167 CLR 259
Servos v Repatriation Commission [1995] FCA 150

Applicant: MR MAPLE

First Respondent: MS NIU

Second Respondent: CHILD SUPPORT REGISTRAR

File Number: NCC 1626 of 2016

Judgment of: Judge Terry

Hearing date: 1 December 2016

Date of Last Submission: 1 December 2016

Delivered at: Gunnedah

Delivered on: 29 September 2017

REPRESENTATION

Appearance for the Applicant: In Person

Counsel for the First Respondent: Mr Williams

Solicitors for the First Respondent: Attwaters

Solicitors for the Second Respondent: Mills Oakley Lawyers

ORDERS

1. The applicants’ appeal from the decision of the Administrative Appeals Tribunal dated 11 May 2016 is dismissed.

2. The application for a stay contained in the Further Amended Notice of Appeal filed on 22 November 2016 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Maple & Niu & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 1626 of 2016

MR MAPLE

Applicant

And

MS NIU

First Respondent

CHILD SUPPORT REGISTRAR

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. MR MAPLE has filed an appeal from an AAT child support first review decision which set his taxable income at $107,000.00 from 28 April 2014 until the assessment ends. He seeks to have the decision set aside and the matter remitted for rehearing.

2. Ms Niu, the mother of the parties’ child, submits that Mr Maple has not established that the Tribunal made an error of law. In her response she sought to have the appeal summarily dismissed.

3. The Child Support Registrar also seeks dismissal of the appeal on the basis that Mr Maple has failed to identify any error of law.

Documents relied on

1. On 31 August 2016 when this matter was listed for hearing orders were made concerning the filing of documents.

2. Order 4 provided that the documents relied on at the appeal would be:

   a)The [Amended] Notice of Appeal;

   b)A copy of the decision of the AAT;

   c)The statement of the reasons for that decision;

   d)The documents that were before the AAT in relation to the proceedings provided to the court pursuant to s. 46(1)(a) of the Administrative Appeals Tribunal Act;

   e)Any affidavit filed pursuant to Order 3 [which allowed the applicant to file and serve an affidavit exhibiting any additional documentation that was before the AAT but had not been supplied pursuant to s. 46(1)(a)];

   f)The transcript of the proceedings if filed pursuant to order 2 above;

   g)Any such other document(s) for which leave of the court has been granted.

3. To reinforce Order 4(g), Order 5 provided that the parties must obtain the leave of the court to rely on any other documents or to receive (sic) further evidence.

4. Orders were also made on 31 August 2016 for the parties to file written submissions.

5. The applicant filed an affidavit attaching the transcript on 11 November 2016. No issue was taken by the other parties about the late filing of this affidavit.

6. The applicant also filed a Further Amended Notice of Appeal (Child Support) without leave on 22 November 2016. His written submissions filed the same day addressed the grounds in this Further Amended Notice of Appeal and at the hearing on 1 December 2016 the first and second respondent consented to the applicant being given leave to rely on the Further Amended Notice of Appeal.

7. The applicant also filed the following documents without leave on 11 November 2016:

   a)A financial statement;

   b)An affidavit by his brother Mr J;

   c)An affidavit by his father Mr D.

8. The financial statement contains fresh evidence about the applicant’s financial circumstances including an implied assertion that his brother does not owe him $100,000.00. The affidavits of his brother and his father contain evidence about the circumstances surrounding the sale of the applicant’s house to his brother and why they say that the applicant does not owe his brother any money.  

9. The other parties did not consent to any of this material being relied on at the hearing and I do not intend to receive it because it would not assist either the applicant or me if I did.

10. The applicant’s purpose in filing those documents can only have been to demonstrate that the Tribunal got the facts wrong when it made its decision. However to succeed with his appeal the applicant needs to establish not that the Tribunal made errors of fact or that the facts are different now; he needs to establish that the Tribunal made findings or drew inferences in the absence of evidence or failed to have regard to relevant evidence. To use slightly out of context a sentence from Mickelberg & the Queen which is referred to in Servos v Repatriation Commission :

    In deciding whether there was error, the appellate court looks to the materials which were before the court below.[1]

    [1] Servos v Repatriation Commission (1995) FCA 150

11. In Carrigan & Fredericks (SSAT Appeal) Judge Brown put it this way:

    Essentially, this court, in its appellant jurisdiction from the SSAT, must be careful not allow evidence to be adduced in the hope advocated by any appellant that an error of law will thus be demonstrated.[2]

    [2] Carrigan & Fredericks (SSAT Appeal) (2011) 45 FamLR 657

12. The only documents filed by the applicant to which I have had regard are his affidavit filed on 11 November 2016 attaching the transcript, his Further Amened Notice of Appeal filed on 22 November 2016 and his written submissions filed on 22 November 2016.

13. The applicant did not make any submissions supplementary to his written submissions on 1 December 2016.

14. The first respondent relied on her written submissions filed on 25 November 2016. They included submissions about summary dismissal but the first respondent’s counsel conceded on 1 December 2016 that the appeal had been listed for final hearing and that it was not appropriate to seek summary dismissal of the appeal. 

15. The submissions by Counsel for the first respondent sufficiently addressed the grounds in the Further Amended Notice of Appeal. Counsel for the First Respondent made some very brief additional submissions on 1 December 2016.

16. The Child Support Registrar relied on written submissions filed on 22 November 2016. They sufficiently addressed the grounds in the Further Amended Notice of Appeal and the solicitor for the Child Support Registrar did not make any additional submissions on 1 December 2016.

Background

1. The applicant and the first respondent have one child, a daughter X born on (omitted) 2002. There has been a child support assessment in place for X since 2008.

2. On 28 April 2014 the first respondent filed an application for departure alleging that the applicant’s income, property, financial resources and earning capacity were not reflected in the assessment.

3. The applicant filed a cross-application on 17 June 2014.

4. The applicant operates a (omitted) business called (omitted) and immediately prior to the first respondent filing her application for departure, he was being assessed on a deemed income of $47,046.00. His 2012/13 taxable income of $21,550.00 subsequently replaced his deemed income.

5. On 7 August 2014 the Registrar made a Departure Order and varied the applicant’s adjusted taxable income to the following:

   $70,569.00 from 1 May 2014 to 30 June 2015

   $73,956.00 from 1 July 2015 to 30 June 2016

   $77,506.00 from 1 July 2016 to 30 June 2017

6. The applicant lodged an objection to that decision which was disallowed on 18 December 2014.

7. On 3 February 2015 the applicant lodged an application for a review of the objection decision after being granted on an appeal an extension of time to do so.

8. A hearing took place on 18 April 2016 and the Tribunal delivered a decision on 11 May 2016 which was as follows:

   The decision under review is set aside and a decision substituted to depart from the assessment by varying:

   ·Mr Maple’s adjusted taxable income to $107,000.00 from 28 April 2014 until the assessment for X ends.

   ·Ms Niu’s taxable income to $93,000.00 from 1 July 2014 to 31 December 2016.

9. The Tribunal calculated that this would result in the applicant being required to pay current child support of $145.00 per week. It took into account that as the change of assessment would apply from the date the first respondent filed her departure application it would result in the applicant owing arrears of about $15,000.00.

The appeal

1. S. 44AAA of the Administrative Appeals Tribunal Act provides that a person aggrieved by a decision of the AAT may appeal to the Federal Circuit Court on a question of law and the applicant filed an appeal on 20 June 2016.

2. The grounds of appeal in the Further Amended Notice of Appeal filed on 22 November 2016 challenge findings of fact made by the Tribunal and/or the inferences drawn from those findings of fact.

3. In full the grounds of appeal are as follows:

   1.The Appellant appeals the decision of Member J Cuthbert of the Administrative Appeals Tribunal, Decision Date 11 May 2016 Decision Posted 16 May 2016 in that the Tribunal erred in law in making the findings of fact or inferences drawn from the findings of fact that:

   1.1    the appellant has an annual income of about $105,000 from the operation of his business;

   1.2    the appellant has from that business turnover of $140,000;

   1.3    the sum of about $35,000 is for the Appellant’s reasonable business expenses;

   1.4    the Appellant has income well in excess of the adjusted taxable income used for the child support assessment the subject of the Decision.

   1.5    the Appellant does not have a medical condition that reduces his capacity to earn an income to less than full time hours

   which findings of fact or inferences from findings of fact were made without evidence to support each or any of those findings or inferences.

   2.The making of the said findings of fact and any of them and/or the inferences from the said findings of fact were made in the absence of evidence.

   3.The finding of fact or the inference that the Appellant had the capacity to earn interest of at least $2,000 a year at current rates was not available to the Tribunal on the evidence.

   4.The failure of the Tribunal to consider the evidence of the Appellant and Accountant (tax returns and assessments) as to the industry standard earnings and expenses for his trade occupation was not reasonable or sustainable on the evidence.[3]

   [3] Further Amended Notice of Appeal (Child Support) filed on 22 November 2016.

Discussion

1. In CSR & Crabbe & Anor the Full Court made some observations about circumstances in which errors in fact finding might amount to an error of law. Under the heading “Principals Relevant to the Review of the SSAT’s decision” it said as follows:

   … in the context of judicial review, the making of findings and the drawing of inferences in the absence of evidence is an error of law. On the other hand, there is no error of law simply in making a wrong finding of fact. Even if the reasoning whereby the [decision maker] reached its conclusion of fact were demonstrably unsound, that would not amount to an error of law. A party does not establish an error of law by showing that the decision-maker inferred the existence of a particular fact by a faulty process, for example by engaging in an illogical course of reasoning. Thus, at common law, want of logic is not synonymous with error of law. So long as the particular inference is reasonably open, even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place – Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-6…[4]

   [4] CSR & Crabbe & Anor [2014] FamCAFC 10

2. The difficulty for the applicant in respect of Ground 1 of his Further Amended Notice of Appeal is that it is abundantly clear from reading the Notice of Decision that there was evidence on which the Tribunal was entitled to make the findings it did and to draw the inferences it did about his income and expenses.

3. Counsel for the first respondent set out accurately and at great length in his comprehensive written submissions the evidence on which the Tribunal relied to come to the conclusion that the applicant’s tax returns did not accurately reflect his income, and having made that finding, the Tribunal was then entitled to use the available evidence to form a view about the applicant’s actual income. The Tribunal was not bound by any provision in any Act to simply accept the applicant’s taxable income as correctly representing his income.[5]

   [5] Written submissions of the first respondent paragraph 23

4. At paragraphs 20 to 27 of the Decision the Tribunal referred to the evidence from which it was inferred that the applicant had an annual income of $105,000.00 from his (omitted) business ($140,000.00 gross income less $35,000.00 expenses). It simply cannot be asserted that the Tribunal drew inferences in the absence of evidence.

5. The selected passages from the transcript to which the applicant referred me to do not alter the fact that the Tribunal demonstrably drew on available evidence to come to its conclusions. At their highest, and I am not necessarily convinced that some other inference was open, but at their highest the passages to which the applicant referred me might suggest that some other inference was open to the Tribunal, and that is not enough. 

6. The applicant complained that the Tribunal did not mention in the Decision the documents titled “(omitted)/(omitted) Salary” and “(omitted)” respectively which he obtained from the ATO website and forwarded to the Tribunal. He submitted that the Tribunal therefore must not have taken them into account and that it thus failed to have regard to relevant material and made an error of law.  

7. Receipt of the ATO material is certainly not referred to in the decision.

8. Counsel for the First Respondent submitted that it could be inferred from paragraph 11 of the Decision that the Tribunal had received the material and that if it had been received it then it was open to me to find that it had been considered even if it was not specifically referred to in the decision. A decision maker is not obliged to refer in their decision to every piece of evidence placed before them.

9. I am not convinced that paragraph 11 does establish that the Tribunal received and considered the ATO material. However that does not in my view invalidate the decision.

10. The Tribunal’s task was to try to come to a view about the applicant’s income, not the income of an average (occupation omitted), and there is considerable force in the following submission by the first respondent’s counsel:

    The limited commentary of the Member on this material must be viewed in the context that this material was, at its highest, of minimal weight and relevance. The further material submitted related to what may be anticipated for an average (occupation omitted). There was no evidence which meaningfully compared this material to Mr Maple’s subjective circumstances, and the focus of the Member’s decision had to be specifically upon Mr Maple’s income and expenditure, rather than that of (occupations omitted) in general. [6]

    [6] First Respondent’s submissions paragraph 48c.

11. The applicant complained at 1.5 that the Tribunal erred in law in finding that he did not have a medical condition which reduced his income earning capacity but the problems with this submission are first that there was evidence on which this finding could have been made and second that the finding did not in any event disadvantage the applicant.  

12. The evidence underpinning the finding is contained in paragraphs 32 to 34 of the Decision. The applicant did not suggest that the material the Tribunal had regard to was inaccurate, rather he complained that the conclusions drawn from it were erroneous and even if this is true (and I do not accept that it is) it does not demonstrate an error of law. The inferences were reasonably open on the evidence.

13. However I concur with the submission by the First Respondent that the challenge to this finding was misconceived. The Tribunal went on to find that that the applicant had not reduced his working hours and that he did not have any unused income earning capacity and that as a result an application for a departure on the basis of unused earning capacity could not succeed. The finding about the hours the applicant was able to work does not impact on the findings about the applicant’s income based on an analysis of the evidence about his receipts and expenses.

14. That disposes of grounds 1 & 2.

15. The applicant complained about the finding that he had an asset (a loan to his brother) which was capable of earning interest of at least $2,000.00 per annum.

16. There was abundant evidence on which it was open to the Tribunal to conclude that the applicant had an asset in the form of a loan of $100,000.00 to his brother and it was not in dispute that he was not requiring his brother to pay interest.

17. The Tribunal did not explain how it arrived at the figure of $2,000.00 (which represents an interest rate of 2%) other than to say that the loan was capable of earning $2,000.00 per annum “at current rates.” However as was pointed out by counsel for the first respondent s. 33(1) (c) of the Administrative Appeals Tribunal Act provides that the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks fit.

18. Counsel for the first respondent submitted that the Tribunal was entitled to have regard as a matter of judicial notice to the applicable rates of interest which could be generated through banks and that in the light of that the rate of 2% was modest.

19. The submission that the rate used is modest is certainly true and information which in my view the Tribunal could have had regard to in concluding that the loan was capable of earning interest of $2,000.00 per annum at current rates is the deeming rate applied by Centrelink (1.75% on the first $50,200.00 and $3.75% on the amount over $50,200.00) which would result in the applicant being deemed to earn $2,746.00 per annum.

20. That disposes of ground 3.

21. In ground 4 the applicant complains that the Tribunal did not have regard to his tax returns or to the ATO benchmarks. I have indicated earlier that the Tribunal was not in error in failing to have regard to the ATO benchmarks and not in error in failing to have regard to the applicant’s income tax returns.

22. The first respondent’s submissions dealt briefly with two additional issues raised in the applicant’s submissions but in my view I am only obliged to consider the grounds of appeal in the Further Amended Notice of Appeal.

23. The applicant has not demonstrated that the Tribunal made any error of law and the appeal must be dismissed.

The stay application

1. In his further amended notice of appeal the applicant sought a stay under ss. 44A and 44AAA (2) (b) of the AAT Act pending the decision of the court in respect of his appeal.

2. The applicant did not file an affidavit specifically in support of his stay application and it was therefore not considered on 1 December 2016. I made an order however that the applicant had liberty to contact my chambers seeking to relist the stay application upon filing an affidavit in support.

3. The applicant filed an affidavit in support of his stay application on 23 December 2016 and an expanded version of that affidavit on 8 March 2017. However the matter was not relisted.

4. There is nothing to suggest that the applicant contacted my chambers seeking to relist the matter upon the filing of these affidavits and I was unaware until I picked up the file to prepare this judgment that the affidavits had been filed.

1. I apologise for my delay in delivering this judgment for which I offer no excuse. However as a result of my decision there is no need for the stay application to be considered and I dismiss the application for a stay.

I certify that the above fifty nine (59) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date:       29 September 2016