Moran v Andrew

[2015] FCCA 2914

FEDERAL CIRCUIT COURT OF AUSTRALIA

MORAN v ANDREW & ANOR [2015] FCCA 2914

Catchwords:
CHILD SUPPORT – Administrative Appeals Tribunal (Social Services & Child Support Division) – departure application – whether there was a rational basis for the findings of fact made by the Tribunal on the face of the reasons – no jurisdictional error – application dismissed. 

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) s.44AAA

Child Support (Assessment) Act 1989

Savery & Savery [1990] FamCA 30; (1990) FLC 92-131 13 Fam LR 812, delivered on 20 March 1990

Applicant: MR MORAN

First Respondent: MS ANDREW

Second Respondent: CHILD SUPPORT REGISTRAR

File Number: SYG 2166 of 2015

Judgment of: Judge Street

Hearing date: 28 October 2015

Date of Last Submission: 28 October 2015

Delivered at: Sydney

Delivered on: 28 October 2015

REPRESENTATION

Counsel for the Applicant: Ms C Spain

Solicitors for the Applicant: Watts McCray Lawyers

Solicitors for the First Respondent: Ms S McMahon
Turner Freeman Lawyers

Solicitors for the Second Respondent: Ms B Rayment
Mills Oakley Lawyers

ORDERS

1. The amended notice of appeal is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6408.

3. The applicant pay the second respondent’s costs fixed in the amount of $6408.

4. Extend time for payment of orders 2 and 3 above up to 24 February 2016. 

IT IS NOTED that publication of this judgment under the pseudonym Moran v Andrew & Anor is approved pursuant to s.110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2166 of 2015

MR MORAN

Applicant

And

MS ANDREW

First Respondent

CHILD SUPPORT REGISTRAR

Second Respondent

REASONS FOR JUDGMENT

1. This is an appeal to the Court within its jurisdiction under s.44AAA of the Administrative Appeals Tribunal Act 1975 (Cth) for a decision of the Tribunal made on 29 June 2015. An appeal to this Court is confined to a question of law as identified in s.44AAA. The amended notice of appeal identified the following grounds:

   1. The Administrative Appeals Tribunal made findings of fact without sufficient basis with such finding amounting to an error or law.

   Particulars:

   1.1 The Tribunal erred in finding that the Appellant has been foregoing gross income of $28.800.00 per year for the Property T property since February 2014.

   1.2 The Tribunal erred in finding that the Appellant may have other financial resources.

   1.3 The Tribunal erred in finding that the Appellant has an earning capacity in the region of $195.000.00.

   1.4 The Tribunal erred in finding that the effect of the child support assessment was a major purpose of the Applicant's decisions concerning his employment and study.

   2. That the Administrative Appeals Tribunal erred in law by establishing that special circumstances existed to depart from the administrative assessment of child support on the basis of their findings in relation to the earning capacity and financial resources of the Appellant.

2. Ms Spain, counsel for the applicant, confirmed that the applicant sought to make out the alleged grounds of appeal by reference only to the decision of the Administrative Appeals Tribunal.  The evidence that was before the Administrative Appeals Tribunal was not adduced in evidence before this Court.  Ms Spain identified that in substance ground 1 was intended to identify a question of whether there was a rational basis for the findings of fact made by the Tribunal on the face of the reasons. 

3. It was accepted by counsel for the applicant that the issue in that regard was whether there could be said to be a rational basis apparent on the reasons of the Tribunal for the findings challenged.  In relation to the finding in particular 1.1 to ground 1, the relevant finding was identified in para.27 of the Tribunal’s reasons and it reads as follows:

   27. The Tribunal finds that Mr Moran has equity in two properties and is forgoing gross income of $28,800 a year for the Property T property. His financial situation suggests that he is not in a position to forgo rent, or to continue to meet the outgoings on both properties. The Tribunal finds that Mr Moran’s desire to maintain ownership of the properties does not have priority over his duty to provide support for X. On his own evidence Mr Moran has equity in property of at least $750,000. At an interest rate of 3% (as currently offered by major banks) he could earn interest of at least $22,500 on the equity he has in real estate.

4. From the Tribunal’s reasons it is clear that the Tribunal found that the applicant was the owner of two properties, one of which included the Property T property.  That Property T property was one which the Tribunal addressed in para.23:

   23. Mr Moran owns a three bedroom townhouse at Property T in which his mother has lived for a number of years. He said that until March 2015 she paid rent of $2,400 a month, but can no longer afford to do so. He said that he has now asked his mother to pay the rates for the property. Mr Moran told the Tribunal that his mother, who is 70 years old, is reliant on a small amount of savings and a UK pension of about £60 a fortnight.

5. The amount of the rent that is referred to in para.23 of $2,400 equates with the finding of the Tribunal relating to a gross income being foregone of $28,800 a year.  In those circumstances it cannot be said that there was not a rational basis on the face of the reasons of the Tribunal for the adverse finding in relation to particular 1.1.

6. In relation to particular 1.2, the relevant finding by the Tribunal is in para.31 as follows: 

   31. The Tribunal finds that Mr Moran’s ability to meet expenses suggests that he may have other financial resources.

7. That finding was made by the Tribunal in circumstances where the Tribunal had addressed the applicant’s outgoings relevant in paras.29 and 30 as follows: 

   29. Mr Moran’s stated outgoings are almost $900 a week (excluding tax, interest on the investment loan, rates and child support; but including $660 a month paid to his partner for accommodation). He said that he meets his expenses with the assistance of his mother and his partner Ms A. However, Mr Moran has stated that his mother’s capacity is very limited. He also provided a statutory declaration from Ms A that they “share no financial interests, bank accounts or assets, and that we keep our daily finances and all financial matters separate”. There is no evidence supporting Mr Moran’s subsequent assertions that Ms A provides financial support to him. The Tribunal notes that the expenses he stated seem consistent with withdrawals shown in his bank statements.

   30. Mr Moran’s credit card statements show payments of $5,292 in a three month period from March to April 2015. The payments to the account were from a joint account he holds with his mother. However, the credits to that account come from Mr Moran’s personal account.

8. The reasoning in paras.29 and 30, in my opinion, provides a logical and rational basis for the adverse finding made in para.31. 

9. In relation to ground 1.3, the relevant finding was at para.47:

   47. The Tribunal is satisfied that Mr Moran has an earning capacity in the region of $195,000. The Tribunal notes that he had income from consultancy of more than $60,000 in the period July 2013 to February 2014 despite only working a few days a month.

10. In relation to the applicant’s earning capacity, the Tribunal relevantly found:

    40. The Tribunal finds that the criterion in paragraph 117(7B)(a) of the Assessment Act is met as from February 2014 Mr Moran did not work for a period to March 2015, despite ample opportunity to do so. He did not suggest to the Court that work would not be available, but stated that he had chosen to forgo work. He also did not work full-time prior to February 2014 and after March 2015 and from 1 March 2015, has worked part-time in a different field.

    41. The Tribunal has no evidence of any health issues which prevent Mr Moran from working on a full-time basis. His evidence to the Court was that he reduced his hours in 2014 in order to be able to care for X. Since 23 July 2014 the care arrangements for X have changed and Mr Moran did not suggest that he would be unable to work full-time because of the current care arrangements. The Tribunal finds that the criterion in paragraph 117(7B)(b) of the Assessment Act is satisfied from at least July 2014 as Mr Moran’s decisions not to work and then to work on a part-time or casual basis are not justified on the basis of his health or caring responsibilities.

    42. The Tribunal must therefore consider Mr Moran’s motivations in not working and then in working on a part-time or casual basis.

    43. In his judgment made on 23 July 2014, Austin J noted Mr Moran’s evidence that he intended to return to work as soon as the proceedings were complete. However, he said that he would work in a consultancy role that permitted him to work largely from home because of anticipated caring responsibilities for X. Austin J stated:

    When the father was last employed his annual income was $195,000 per annum. Since then, his choice has been to only accept consultancy work which accommodates his care of the child for equal time. His current earnings are therefore diminished, but he has substantial income earning capacity.

    …

    45. The Tribunal is not satisfied that the effect on the child support assessment was not a major purpose of Mr Moran’s decisions concerning his employment and remaining in full-time study. The criterion in paragraph 117(7B)(c) of the Assessment Act is therefore satisfied.

    46. As the three criteria in subsection 117(7B) of the Assessment Act are met the Tribunal may determine whether Mr Moran has an unused earning capacity which should be taken into account in the child support assessment. The Tribunal notes the comments of Austin J made in July 2014 that Mr Moran has a substantial income earning capacity. While Mr Moran stated that he has been trying to find full-time work in his previous field, the Tribunal finds his statements to be self-serving. It notes that his adjusted taxable income for 2011/12 was $200,437, consistent with being previously employed on an income of $195,000.

11. The reasoning identified in paras.43 and 46 clearly provides a rational basis for the adverse finding made by the Tribunal in para.47.  In relation to ground 1.4, the relevant paragraph is the finding in para.45 referred to above.  It is apparent from the reasoning in para.41 that the decisions of Mr Moran were a matter raised and alive before the Tribunal in relation to his working and studying and it cannot be said that the adverse finding in para.45 was not a logical or rational finding on the basis of the reasons of the Tribunal. 

12. It is not necessary to determine whether ground 1 properly sets out a question of law of the kind articulated by counsel for the applicant because even assuming a favourable construction of ground 1 in the manner contended by counsel for the applicant, for the reasons given there was no error of law on the face of the Tribunal’s reasons for want of a rational basis in respect of the findings challenged.  Accordingly, ground 1 fails to make out any error of law by the Tribunal.

13. In relation to ground 2, the relevant finding by the Tribunal was in para.60 as follows:

    60. Taking into account the objects of the Assessment Act (section 4), including that children should share in changes in the standard of living of both their parents, the Tribunal finds that the income and earning capacity of Mr Moran provide special circumstances and that grounds are established to depart from the assessment under subparagraphs 117(2)(c)(ia) and (ib) of the Assessment Act.

14. It is apparent from the content of paras.3 to 5 and para.20 of the Tribunal’s reasons that the finding of an earning capacity for the 2012-13 and the 2013-14 years were substantially above the adjusted taxable income upon which the assessment was made.  Relevantly, for the year 2012 and 2013 it is more than double the income upon which the assessment was made.  In my opinion that is clearly capable of being a special circumstance consistent with the reasoning of Kay J in Savery & Savery [1990] FamCA 30; (1990) FLC 92-131 13 Fam LR 812, delivered on 20 March 1990.

15. Counsel for the applicant endeavoured to raise in relation to ground 2 that the findings in respect of the earning capacity were flawed.  Given that this is a case that was one in which the applicant confined the evidence to a challenge of questions of law on the face of the Tribunal’s decision it is not open to the applicant to contend that there was no evidence to support the findings in respect of the earning capacity of the applicant.  For the reasons I have given there was a rational basis for those findings on the face of the reasons. 

16. It was contended that ground 2 raised the question of whether the findings on the face of the Tribunal could give rise to special circumstances It is not necessary to determine whether ground 2 properly formulates a question of law.  For the reasons I have given as a matter of law those findings were capable of giving rise to special circumstances, ground 2 is not made out. 

17. The amended notice of appeal is dismissed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 2 November 2015