MARSHALL & MARSHALL (SSAT APPEAL) - [2012] FMCAfam 588

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MARSHALL & MARSHALL (SSAT APPEAL)

[2012] FMCAfam 588

CHILD SUPPORT – SSAT appeal – errors of law alleged – appellant relies on “new evidence” – “new evidence” not admissible – no error of law.

Child Support (Assessment) Act1989, Part 6A
Child Support (Registration and Collection) Act 1988, ss.103X, 110B

Administrative Appeals Act 1975, s.44

Agrippa & Horton(SSAT Appeal) [2010] FMCAfam 1144
Tasman & Tisdale [2010] FMCAfam 425
Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143
Gilmour & Gilmour (1995) FLC 92-591
S & D (2005) FMCAfam 446
Kannis & Kannis (2002) FamCA 1150

Applicant:

MR MARSHALL

Respondent:

MS MARSHALL

File Number:

BRC 4409 of 2011

Judgment of:

Coates FM

Hearing date:

14 March 2012

Date of Last Submission:

14 March 2012

Delivered at:

Brisbane

Delivered on:

21 June 2012

REPRESENTATION

Counsel for the Applicant:

Ms P Wilson

Solicitors for the Applicant:

Mark Gray Lawyer

Solicitor for the Respondent:

Self represented

ORDERS

That the Notice of Appeal (Child Support) filed 25 May 2011 be dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRC 4409 of 2011

MR MARSHALL

Applicant

And

MS MARSHALL

Respondent

REASONS FOR JUDGMENT

This is an Appeal against the decision of the Social Security Appeals Tribunal made on 13 April 2011.
The child support in question relates to three children, X born (omitted) 1997, Y born (omitted) 1995 and Z born (omitted) 1991.
The Respondent mother had made a departure application under Part 6A of the Child Support (Assessment) Act 1989 on 27 May 2010.
A senior case officer departed from the administrative assessment on 16 July 2010 so that for the period from 1 July 2010 to 30 June 2012:
a)the Appellant’s adjusted taxable income be set at $45,000;
b)the Respondent’s adjusted taxable income be set at $70,364; and
c)The annual rate of child support payable by the Appellant be increased by $3,200.
The Respondent objected to the decision and on 26 November 2010 an objections officer partly allowed the objection so that for the period from 1 July 2010 to 30 June 2013:
a)the Appellant’s adjusted taxable income be set at $45,000;
b)the Respondent’s adjusted taxable income be set at $70,364; and
c)the annual rate of child support payable by the Appellant be increased by $2,567.
The decision states the effect of the objection officer’s decision is that the appellant was required to pay:
a)$6,497 per annum from 1 July 2010 to 18 August 2010;
b)$6,890 per annum from 19 August 2010 to 30 September 2010;
c)$6,752 per annum from 1 October 2010 to 4 November 2010;
d)$1,795 per annum from 5 November 2010 to 30 November 2010; and
e)$9,599 per annum from 22 November 2010 to 31 December 2011.
After reviewing the evidence the Tribunal came to the following decision which set aside the decision under review and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading MARSHALL & MARSHALL (SSAT APPEAL)

Details

AGLC: MARSHALL & MARSHALL (SSAT APPEAL) [2012] FMCAfam 588
Case: [2012] FMCAfam 588
Decision Date: 21 June 2012

CaseChat Overview and Summary

In the matter of Marshall & Marshall, the appellants challenged a decision of the Social Security and Tax Appeals Tribunal (SSAT) which had determined their child support obligations. The appellants contended that the Tribunal made several errors in its assessment of their income for the purposes of calculating child support, leading to an overestimation of their income and an increased child support liability. The Federal Circuit Court of Australia was tasked with reviewing the SSAT's decision for any jurisdictional errors or errors of law.

The central legal issues before the court were whether the SSAT had erred in its factual findings regarding the appellants' income and whether any such errors amounted to a jurisdictional error that would warrant the appeal's success. The court was required to balance the mandate to ensure findings on questions of fact and references to supporting evidence against the need to avoid an overly pedantic examination of the Tribunal's decision. The court noted that while it was not to substitute its own factual findings for those of the Tribunal, it must ensure that the Tribunal's process of arriving at those findings was logically sound and based on the evidence.

The court found that the SSAT had provided sufficient reasons to demonstrate how it arrived at its decision regarding the appellants' income. The Tribunal had analysed the evidence, including the accounts of the entities involved and the valuations of the properties, to conclude that the appellants' drawings were effectively after-tax income. The court held that the Tribunal's findings were not so erroneous as to render the decision perverse or unreasonable. The appellants' argument that the Tribunal had failed to properly consider their evidence was rejected, as the Tribunal's reasons showed a clear analysis of the evidence and a logical conclusion. The court concluded that no jurisdictional error was evident, and the appeal was dismissed.

In light of the above, the court ordered that the Notice of Appeal filed on 25 May 2011 be dismissed, affirming the SSAT's decision on child support obligations.

Orders

Orders of the court

That the Notice of Appeal (Child Support) filed 25 May 2011 be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

There is a general proposition that there does not have to be exhaustive reasons, but they have to be presented in such a way to show how the decision was arrived at because of the mandate to show findings on questions of fact and a reference to the evidence supporting the findings. A reference to the evidence means some analysis of the evidence, but as stated by Halligan FM in Agrippa & Horton(SSAT Appeal) [2010] FMCAfam 1144, “..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 (Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, at 287, cited with approval in Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ...”. Once the legislative requirement of s.103X(3)(b) is satisfied and no error of law is apparent, then an Appellant cannot succeed merely because of a disagreement by the Court as to a factual finding. Description of errors of law have been addressed in various cases, but in a useful outline was addressed in Tasman & Tisdale [2010] FMCAfam 425 by Brown FM, who described what is sometimes called jurisdictional error: “85. In particular, I reiterate 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: · 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.86. In summary, an appeal on a question of law: · is not a review on the merits or a rehearing; · as such, an appeal on a question of law is not one in which findings of fact, per se, can be called into question; · however, bearing in mind the statutory intent implicit in Part VIII of the Collection Act and the purpose of the Federal Magistrates Court itself, in dealing with SSAT appeals, the court should not be unduly legalistic or pedantic, particularly where the appellant concerned is self-represented; · in reviewing a decision of the SSAT for error, the court should not examine the decision in question with an eye “keenly attuned to the perception of error.” I was referred to some decisions in the Appellant’s case. As to what I will loosely call mistakes of fact alleged by the Tribunal, I was referred to paragraphs 33 and 34 of the decision. I will reproduce those paragraphs: “33. Mr Marshall submitted that his drawings were by way of a loan. The accounts of the entities do not indicate any form of indebtedness associated with the distributions to Mr Marshall. The (omitted) business owns three lots of subdivided land which Mr Marshall currently values (in aggregate) at $935,000 and is indebted in the amount of $842,000. The properties are all currently listed for sale. The drawings to date appear to be a mixture of distribution of the profits on the sale of the first block of land (in 2008/09) and a bringing forward of the anticipated profit on the sale of the other blocks (by way of a debt facility). 34. In these circumstances, the Tribunal has no choice but to regard the drawings as after tax income in Mr Marshall’s hands. On a grossed up basis (for child support purposes) they equate to a taxable income in 2008/09 of $225,552 and in 2009/10 of $78,600. Mr Marshall indicated that his (omitted) business is improving in the current year and is currently earning income at approximately twice the rate of 2009/10 year, however in such a fluid business, the Tribunal is not prepared to speculate as to his likely income in the 2010/11 year other than to assume that it will be approximately equal to his 2009/10 income.”

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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