Myers and Myers and Anor (SSAT Appeal) (No.2)
[2013] FCCA 1426
•4 October 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MYERS & MYERS & ANOR (SSAT Appeal) (No.2) | [2013] FCCA 1426 |
| Catchwords: CHILD SUPPORT – Appeal from decision of SSAT – question of law. |
| Legislation: Child Support (Registration and Collection) Act 1988, ss.110B, 110F Child Support (Assessment) Act 1989, s.117 |
| Tasman & Tisdall (SSAT Appeal) [2008] FMCAfam 126 SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361, (2002) 194 ALR 749 |
| Applicant: | MR MYERS |
| First Respondent: | MS MYERS |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | PAC 2036 of 2009 |
| Judgment of: | Judge Halligan |
| Hearing dates: | 10 December 2012, 9 & 10 April 2013 |
| Date of Last Submission: | 16 April 2013 |
| Delivered at: | Parramatta |
| Delivered on: | 4 October 2013 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Myers in Person |
| Solicitors for the First Respondents: | No Appearance |
| Counsel for the Second Respondents: | Mr Caplan |
ORDERS
The time within which the father may institute an appeal against the decision of the Social Security Appeals Tribunal made on 6 January 2012 is extended to 27 March 2012.
The father's Amended Notice of Appeal filed on 14 November 2012 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Myers & Myers & Anor (No.2) (SSAT Appeal) is approved pursuant to s.110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 2036 of 2009
| MR MYERS |
Applicant
And
| MS MYERS |
First Respondent
And
CHILD SUPPORT REGISTRAR
Second Respondent
REASONS FOR JUDGMENT
Introduction
Mr Myers (the father) applies to the court to extend the time in which he may appeal against a decision of the Social Security Appeals Tribunal (the SSAT), and if successful, appeals against that decision. The respondents to the appeal are Ms Myers (the mother) and the Child Support Registrar (the Registrar).
Despite filing a Notice of Cross Appeal opposing the orders sought by the father, and despite appearing by phone on 20 July 2012 when the matter was listed for hearing, the mother did not appear at the hearing.
The Registrar opposes both the application to extend time and the appeal. With the concurrence of the Registrar, I heard argument on both the extension of time application and the appeal concurrently. In adopting this course, I noted that the father, who was self-represented at all relevant times, had filed an application in a case purporting to appeal the SSAT decision within the time limited to appeal that decision. His Notice of Appeal was filed out of time only because he initially used the wrong form to appeal the SSAT decision.
The SSAT decision under appeal was made on 6 January 2012, and had the effect of fixing the father's adjusted taxable income at $100,000 and the mother's adjusted taxable income at $73,494 from 22 December 2010 until the child support assessment in relation to the parties’ daughter Y ends. In his appeal, the father seeks orders setting that decision aside and remitting the matter to the SSAT to be heard again.
Background
The parents have five children. Two are dependent, X born on
(omitted) 1999, thus now aged 14, and Y born on (omitted) 1996, now aged 17. Child support assessments in relation to these two children have been in place since 5 April 2009. The assessments with which the SSAT was concerned were based on the mother having 78% care of both children and the father 22% care. That those care arrangements have changed since the SSAT determined the matter is irrelevant to this appeal.
On 22 December 2010, the mother applied to the Registrar to change the then current assessment, which was a nil assessment based on a deemed income of $25,780 for the father and a 2010 adjusted taxable income of $69,215 for the mother. The father cross applied to change the assessment.
On 7 April 2011, a senior case officer, as delegate of the Registrar, determined to depart from the administrative assessment and to-
a)set the father's adjusted taxable income at $175,800 for the period 1 February 2011 to 31 July 2012;
b)set the father's adjusted taxable income at $181,074for the period 1 August 2012 to 31 January 2014;
c)increase the annual rate of child support payable by $3,360 from 1 February 2011 to 31 January 2013; and
d)increase the annual rate of child support payable by $3,562 from 1 February 2013 to 31 January 2014.
The father unsuccessfully objected to that decision.
The father then applied to the SSAT on 21 July 2011 to review the decision of the objections officer disallowing his objection.
Ms C, an Assistant Senior Member of the SSAT, conducted a pre-hearing conference on 15 September 2011, in which both parties participated by phone. On 19 September 2011, Ms C issued written directions following the pre-hearing conference to both parties pursuant to s.103(2) of the Child Support (Registration and Collection) Act 1988 (the Registration Act), acting as delegate of the Principal Member of the SSAT. The hearing of the father's review application was listed for hearing by the SSAT on 13 December 2011.
The SSAT, constituted by Ms C and another Assistant Senior Member, Mr P, heard the father’s review application on 13 December 2011. Both the father and the mother attended the hearing. As mentioned, the SSAT made its decision on 6 January 2012, and despatched copies of its reasons to both parties on 10 January 2012. The father's evidence is that he received the reasons for decision on 13 January 2012.
Thus, the time in which he should have lodged his Notice of Appeal with this court expired on 10 February 2012 (see Federal Circuit Court Rules 2001, r.25A.06(2). He filed an Application in a Case on
6 February 2012 seeking orders that his appeal against the SSAT’s decision be upheld, the decision be set aside, and the matter be remitted to the SSAT for rehearing.
However, an appeal from a decision of the SSAT is to be made by filing a Notice of Appeal, not an Application in a Case (r.25A.02(2)). The father filed the correct form of Notice of Appeal on
27 March 2012. He did so in compliance with an order made on the first court date of his Application in a Case purporting to appeal the SSAT decision. He was also ordered at that time to file and serve an Amended Application in a Case seeking an extension of time and affidavit evidence in support.
The applicable law
The right of appeal arises under s.110B of the Registration Act, which provides-
“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 SSAT in that proceeding.”
The sole basis of appeal is error on a question of law. In Tasman & Tisdall (SSAT Appeal), [2008] FMCAfam 126, Brown FM said (at [43]-[45])
“43. 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. …
44. 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:
i) fails to construe properly the legislative provisions applicable;
ii) identifies the wrong issues or asks itself the wrong questions;
iii) ignores relevant material or relies on irrelevant material;
iv) fails to accord procedural fairness to the party before it;
v) 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. (See Apthorpe v Repatriation Commission (1987) 13 ALD 656 at 666)
45. As Gleeson C.J. pointed out in Re Minister for Immigration & Multicultural Affairs: Ex Parte Applicant S20/2002, (2003) 198 ALR 59 at 61:
‘To describe reasoning as illogical, or unreasonable or irrational, may merely be an emphatic way of expressing disagreement with it. If it is suggested that there is a legal consequence, it may be necessary to be more precise as to the nature and quality of the error attributed to the decision maker, and to identify the legal principal or statutory provision that attracts the suggested consequence.’”
The Full Court of the Federal Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd, [1993] FCA 456, (1993) 115 ALR 1, (1993) 18 AAR 9, (1993) 43 FCR 280, an appeal on a question of law from the AAT, commented on the general limitations of such an appeal as follows (at [20])-
“20 The limitation of the jurisdiction to the resolution of questions of law imposes a significant constraint upon the role of the Court in reviewing decisions of the Tribunal. The appealable error of law must arise on the facts found by the Tribunal or must vitiate the findings made or must have led the Tribunal to omit to make a finding it was legally required to make. A wrong finding of fact is not sufficient to demonstrate error of law … Where the decision of the Tribunal involves matters of fact and degree, then provided it applies correct principles of law, no appeal will lie.”
The question whether there is any evidence of a particular fact is a question of law, as is the question whether a particular inference can be drawn from facts found or agreed. The making of factual findings or the drawing of factual inferences in the absence of evidence to support them is an error of law. However, the making of a wrong finding of fact is not an error of law provided there is some evidence rationally and legally capable of supporting the finding (Australian Broadcasting Tribunal v Bond, (1990) 170 CLR 321 at 355–356, per Mason CJ, with whom Brennan J agreed; Comcare v Moon, [2003] FCA 569).
Mansfield J said in Comcare v Moon (at [33])-
“33. … Care must be taken not to convert questions of fact into questions of law. The Tribunal, moreover, does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis, or because it adopts unsound reasoning: Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at 257; Willcocks v Comcare [2001] FCA 1315 at [6]. If there is any evidence rationally and legally capable of supporting a finding of fact, then the finding of fact does not involve an error of law. That is so even if there is a significant body of evidence pointing to a contrary finding of fact. And the decision as to what evidence is to be accepted is a matter for the administrative decision maker and not for the Court. It is not the function of the Court on an application such as the present to review the Tribunal's findings of fact and to substitute its view of the facts for those of the Tribunal.”
A question of law does not arise on a contention that a finding of fact is against the evidence or the weight of the evidence (Collins v Minister of Immigration & Ethnic Affairs, [1981] FCA 417, (1981) 58 FLR 407 at 410-411, 26 ALR 598 at 600, approved in Ascic v Australian Federal Police, [1986] FCA 260 at [11]), or on a contention that too much weight was attached to certain evidence (Hill v Repatriation Commission, [2005] FCAFC 23 at [92]-[93], (2005) 85 ALD 1, 40 AAR 500, 218 ALR 251). As Muirhead J said in Collins v Minister of Immigration & Ethnic Affairs, when dealing with an appeal on a question of law from the AAT-
“11. An appellant in an appeal such as this, who in part rests his case on the argument that factual findings, unjustified by evidence, constitute errors of law, must show more for instance than that other findings were available or merited. Error of law will only be demonstrated if it can be shown that the Tribunal's findings are not supported by material before it.”
It has been held that it is an error of law if the Tribunal does not take into account a relevant fact, takes into account an irrelevant fact, or misapprehends the matters of which it has to be satisfied in reaching a decision (Kuswardana v Minister for Immigration and Ethnic Affairs, [1981] FCA 66 per Bowen CJ, (1981) 54 FLR 335).
A tribunal is not obliged to “isolate in its reasons every issue of fact and record a specific finding in respect of each of them. … (A) sufficient compliance with the requirement of considering all issues of fact and giving adequate reasons occurs when the reasons themselves provide a sufficient indication that the ultimate facts to be decided have been fully kept in mind and that no significant area of primary fact has been ignored.” (Per Foster J in Commissioner of Taxation (Cth) v Cainero (1988) 19 ATR 1301, 15 ALD 368, 88 ATC 4427, applied by Cowdroy J in Nipperess v Military Rehabilitation and Compensation Commission, [2006] FCA 943 at [49], (2006) 43 AAR 252, 91 ALD 362)
A mixed question of fact and law is not a question of law (Comcare v Etheridge, [2006] FCAFC 27 at [16], (2006) 149 FCR 522, 227 ALR 75, 90 ALD 31).
The SSAT’s reasons for decision
The task of the SSAT in conducting the review was in effect to rehear the change of assessment applications that resulted in the decisions of the senior case officer and of the objections officer. In doing so, the SSAT had to follow a clearly established three step process. It first had to consider whether one or more of the grounds for departure from the usual formulaic assessment of child support under Part V of the Child Support (Assessment) Act 1989 (the Assessment Act), specified in s.117(2) of that Act, existed. If so, it then had to consider whether it would be just and equitable to depart from the usual formulaic assessment of child support, and finally it had to consider whether it would be otherwise proper to do so. In deciding whether it would be just and equitable to depart, the SSAT had to have regard to s.117(4) and (6) to (9) of the Assessment Act, and in deciding whether it would be otherwise proper to depart, the SSAT had to have regard to s.117(5) and (9) of the Assessment Act (Gyselman & Gyselman, (1992) FLC 92-279, (1992) 15 Fam LR 219).
The SSAT delivered lengthy and detailed reasons for its decision. It correctly identified its task and the legal framework within which it was to be performed.
In its reasons, the SSAT recorded that the mother's change of assessment was sought on the “ground” that the father had income, property and financial resources greater that is suggested by the income attributed to him in the formulaic assessment of child support. It referred to and quoted s.117(2)(c)(ia) and (ib) of the Assessment Act as the statutory grounds of the mother's application. The SSAT also noted that the term “special circumstances”, an element of both grounds for departure referred to, is not defined in the Act, and referred to what the Full Court of the Family Court of Australia said the phrase meant in Gyselman & Gyselman. Thus, the SSAT was clearly aware of the requirement of “special circumstances”, and correctly identified what that phrase meant in s.117(2).
I note that the father's income, property and financial resources relate only to the ground for departure under s.117(2)(c)(ia). The ground for departure under s.117(2)(c)(ib) relates to a parent’s earning capacity, and is a separate ground for departure to that under s.117(2)(c)(ia).
The Child Support Agency’s form of application to change an assessment unhelpfully conflates these two grounds of departure. It calls the grounds for departure “Reasons for applying”, and “Reason 8” is expressed as follows-
“Is the assessment unjust and inequitable because of the income, property and financial resources or earning capacity of either parent?”
The form then seeks the “name of parent whose income, etc, is not taken into account in the assessment” and a “description of income, property and financial resources or earning capacity not taken into account in the assessment”. This conflation of two of the statutory grounds for departure in my view is ambiguous, and may lead to some confusion, possibly suggesting an applicant may rely on one or other but not both of the statutory grounds or misleading an applicant as to what the two relevant grounds for departure are. It may also result in uncertainty about whether an applicant is relying on one or both grounds, and if only one, which one. This could result in an application not being dealt with according to law.
Notwithstanding this, in my view it seems reasonably clear from the particulars of Reason 8 attached to the mother's application that she was relying on both statutory grounds covered by Reason 8 (1397-1398 of SSAT papers), and hence the SSAT correctly identified that the mother relied on these two grounds for departure.
In relation to the ground under s.117(2)(c)(ib), the SSAT correctly identified the relevance of s.117(7B) when determining whether a person’s earning capacity is greater than their income for the purposes of the Assessment Act. And s.117(7B) and its application by the SSAT is central to the father's appeal.
In considering whether a ground for departure existed, the SSAT reviewed the evidence in relation to the father's financial circumstances (Reasons, [23] – [82]) and was satisfied he had financial resources available to him through the operation of a private company under his control and through a family trust that were not reflected in the salary he drew from the company (Reasons, [83]), because of which it would be unjust and inequitable for the father to be assessed to pay child support on his taxable income (Reasons, [84]). It found the ground for departure under s.117(2)(c)(ia) established (Ibid).
The SSAT then addressed the ground for departure under s.117(2)(c)(1b) and turned its attention to the father's earning capacity, the father having after separation changed the corporate vehicle through which he conducted his (business omitted) and having moved its office from the former matrimonial home in the (omitted) suburbs of Sydney to the (omitted) (Reasons [85] – [99]).
It first addressed the three matters that are preconditions imposed by s.117(7B) of the Assessment Act to finding that a person’s earning capacity is greater than their income.
In addressing the first limb of s.117(7B), the SSAT found (Reasons, [86]) that the change of corporate vehicle through which the father conducted his (business omitted) and moving its place of business with the loss of some clients amounted to a change in the father's working pattern, even though it also found that the father worked full time in his (business omitted) both before and after these changes, citing CSR & Wolbers; Wolbers & Bell & Anor, [2007] FMCAfam 196, a case in which an issue was whether the payer parent had changed his “working pattern” within the meaning of s.117(7B)(a)(iii). The father vehemently disagreed with the finding that he had changed his “working pattern” and sought to challenge it on a variety of grounds.
The SSAT then considered the second limb of s.117(7B) (Reasons, [87]), noting that the father did not suggest the change was because of caring responsibilities. It noted that although the father suffered some ill health in 2009, he did not suggest that this was a reason for “the change in the manner in which the business operated”. Being satisfied the father “did not change his working pattern due to his caring responsibilities or his health”, the SSAT was satisfied the second limb of s.117(7B) was satisfied.
Being satisfied of the first two requirements of s.117(7B), the SSAT correctly noted that the onus then shifted to the father in relation to the third requirement of the subsection. The SSAT reviewed the evidence considered to be relevant to this requirement (Reasons, [88] – 94]), expressing itself not satisfied that the father had discharged the onus on him.
The SSAT then addressed evidence relevant to the father's earning capacity (Reasons, [95] – [99]), finding that if he had sought employment in May 2009, he would have been able to earn a salary of at least $100,000 per annum, if not significantly more (Reasons, [99]).
The SSAT then expressed itself satisfied that because of the level of the father's earning capacity it would be unjust and inequitable for the father to be assessed to pay child support on his taxable incomes of $21,825 (used in assessments for the periods 5 April 2009 to
9 June 2009 and 10 June 2009 to 31 July 2009), $24,956 (used in assessments for the periods 1 August 2009 to 21 December 2009,
22 December 2009 to 22 January 2010 and 23 January 2010 to
31 October 2010) and $25,780 (in fact a deemed income, not taxable income, used in an assessment for the period 1 November 2010 to
31 January 2012). It expressed itself satisfied that the ground for departure under s.117(2)(c)(ib) was established (Reasons, [100]).
The father sought to challenge the findings that both grounds for departure were established on the basis that he contended that the SSAT did not consider whether special circumstances existed, and hence had failed to consider an essential element of both grounds for departure.
The SSAT did not further address any of the other grounds for departure relied on by the mother or any of the grounds for departure relied on by the father. However, having found a ground for departure existed, it was open to the SSAT to proceed on to the second and third steps of the departure decision process without necessary prejudice to the case of either party.
In addressing whether it would be just and equitable to depart, the SSAT set out s.117(4) of the Assessment Act and then addressed the relevant evidence (Reasons, [101] – [152]), specifically addressing under separate headings each of the matters enumerated in s.117(4). In dealing with the father's “income, financial resources and earning capacity”, the SSAT said it considered that the father “has an earning capacity of at least $100,000 per annum and in fact is receiving income and financial resources of at least that amount from the operations of” the company he controls and through which he conducts his (business omitted), and a family trust (Reasons, [145]). The father sought to challenge this finding on a number of grounds.
The SSAT concluded that it would be just and equitable to fix the adjusted taxable incomes of the father and the mother at $100,000 per annum and $73,494 per annum respectively from 22 December 2010, a year later than the mother sought, until the assessment for Y ends. The SSAT stated this would give an annual rate of child support payable by the father in 2011 of “just over $200 per week” for the two children (Reasons, [149]).
Finally, the SSAT addressed the question whether it would be proper to depart from the administrative assessment (Reasons, [153] – [155]), setting out s.117(5), and noting that the mother received family tax benefit and that an increase in child support may reduce the cost to the community. The SSAT expressed itself satisfied the foreshadowed departure was otherwise proper.
The appellant’s challenge to the SSAT’s decision
As already mentioned, the father was self-represented. He presented voluminous written material in support if his case, despite the court attempting to impose some discipline on the volume of this material. For example, a direction that the father file “brief point form particulars of the remaining grounds of appeal” when the hearing did not conclude in the time initially allocated, resulted in the father lodging a further prose submission of some 32 pages in length.
As mentioned, the focus of the father's challenge to the SSAT’s decision related to-
a)Its asserted failure to consider whether special circumstances existed in finding that two grounds for departure existed;
b)Its finding that the father had changed his “working pattern” within the meaning of that term in s.117(7B); and
c)Its treatment of information derived from various financial records produced by the father in coming to its finding that his earning capacity was at least $100,000.
The father also sought to assert actual bias and prejudgment by both members of the SSAT. He based this essentially on certain findings of fact made by the SSAT which he said were simply not open to it.
I will attempt to deal with the substance of the father's case against the four main areas of focus in his challenges to the decision.
Special circumstances
Special circumstances are an essential element of the two grounds of appeal the SSAT was satisfied were established. The SSAT was clearly aware of this, quoting s.117(2)(c) where this phrase is used, and then citing the definition of the term provided by the Full Court in Gyselman & Gyselman.
However, the reasons do not record the SSAT’s subsequent consideration of whether or not there were special circumstances, and why it was satisfied they existed in relation to either of the two grounds for departure found proved.
The father submitted that the SSAT had failed to consider a relevant matter, special circumstances, and that this was an error on a question of law.
Counsel for the Registrar submitted that given the explicit reference to what special circumstances in s.117(2)(c) meant, it was clear the SSAT had in mind the requirement of special circumstances in the grounds it found proved and submitted that various findings of fact by the SSAT would warrant a finding of special circumstances.
When reviewing the reasons of the SSAT, being an administrative body, the court should not be “concerned with looseness in language nor with unhappy phrasing”, and “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, and see the comments of Kirby J to similar effect at 291).
Nonetheless, as Riethmuller FM (as he then was) noted in PJ & Child Support Registrar, [2007] FMCAfam 829 at [38], (2007) 38 Fam LR 31, (2007) FLC 98-035:
“38 The only right of review of a decision of the SSAT is an appeal ‘on a question of law’ to the courts … Most significantly, such an appeal does not allow for a review on the merits. As a result, it is important for the Tribunal to provide appropriate reasons. This will usually entail careful findings of fact and clear explanations of the reasons for any decision, particularly where it involves the exercise of a discretion such as altering a child support amount.”
In this case, one is left to infer that the SSAT concluded that special circumstances existed. There is no indication what the SSAT considered in coming to a conclusion that special circumstances existed. I am not satisfied in those circumstances that its reasons were “appropriate”, to adopt the term used by Judge Riethmuller.
I cannot be satisfied that the SSAT properly considered s.117(2)(c) in coming to its conclusion that grounds for departure existed. I am satisfied this involved error on a question of law.
However, as the father himself sought departure and asserted grounds for departure existed, he cannot be heard to challenge the SSAT’s decision solely on the basis it was satisfied the first step of the decision making process was satisfied. Nothing in the finding a ground for departure existed per se prejudiced the father, and I would not be persuaded to set the decision of the SSAT aside on that basis alone.
Change of working pattern
The finding that the father changed his working pattern within the meaning of s.117(7B)(a)(iii) was made in the context of considering whether the ground for departure under s.117(2)(c)(1b) was established. But the finding was also relevant to the SSAT’s consideration of the father's earning capacity under s.117(4)(da) when considering whether it would be just and equitable to make a departure determination. Thus, this finding had ramifications in the decision making process and an impact on the ultimate decision of the SSAT well beyond the issue whether a ground for departure existed, and hence has a significant impact on contentious aspects of the matter determined by the SSAT.
The father submitted that on the facts before it, it was not open to the SSAT to find that he had changed his working pattern, pointing out that he continued to work full time in his (business omitted), which he continued to conduct through a company of which he continued to be the sole shareholder and director, albeit he moved the location of the office at which he conducted his (business omitted), the company through which he conducted his (business omitted) changed, albeit ultimately the new company had the same name as the old one, and he lost some clients when he moved. He referred to Hansard and to the Explanatory Memorandum accompanying the Bill that became the Child Support Legislation Amendment (Reform of the Child Support Scheme – Initial Measures) Act 2006, Schedule 3 of which amended s.117, inter alia, to insert s.117(7B) to support his submission that the purpose of the amendment was to prevent payer parents changing their working pattern to reduce their child support. He submitted that his child support in fact went up. He also submitted that the SSAT took an irrelevant fact into account, referring to the fact that the mother had been involved in the company through which he conducted his (business omitted) previously, but that this was too remote in time to be relevant to whether he changed his working pattern.
It was submitted on behalf of the Registrar that the expression “working pattern” was to be given its normal, and not any technical, meaning, and hence its meaning was a matter fact, not of law. It was further submitted that there was evidence on which the SSAT could have found that the father changed his working pattern.
Whether a word or phrase is to be given an ordinary meaning or some technical or other meaning is a question of law, the ordinary meaning of a word or its non-legal technical meaning is a question of fact, and whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law (Collector of Customs v Pozzolanic Enterprises Pty Ltd, [1993] FCA 456 at [23], (1993) 115 ALR 1, (1993) 18 AAR 9, (1993) 43 FCR 280).
I am satisfied that the phrase “working pattern” in s.117(7B)(a)(iii) is to be given its ordinary, non-technical meaning. The only remaining arguable question of law is whether the facts found by the SSAT fall within the ordinary meaning of the phrase.
“Pattern” is defined by the Macquarie Australian Encyclopaedic Dictionary as-
“… 4. style or type in general. … 6. an example or instance. 7. a sample or specimen.”
The expression “working pattern” is thus a broad term.
The father submitted that the fact he moved the location of his office was irrelevant to whether he changed his working pattern. With respect, I disagree. Moving the place where one conducts a business that is a source of income could have a significant impact on one’s income, and the father conceded that in moving his business from the suburbs to the (omitted), he lost some clients. That he may have hoped to gain new clients he may not otherwise have attracted to his (business omitted) if he had remained in the suburbs is beside the point.
The father also submitted that intent and the actual result of changing working arrangements were relevant to whether there had been a change of working pattern. Neither is required by either s.117(7B)(a)(iii) or the ordinary meaning of working pattern. The only intention that is relevant under s.117(7B) is that referred to in s.117(7B)(c), and the onus of negativing that intention or “purpose” rests on the person whose earning capacity is being considered. That is, there is a rebuttable presumption that the intent or “purpose” referred exists if the first two limbs of s.117(7B) are proven. And the intention or “purpose” referred to in s.117(7B)(c) is precisely the intention the father seeks to assert is to be taken into account in the context of “working pattern”, namely “to affect the administrative assessment of child support”.
I am not satisfied the father has demonstrated any error on a question of law by the SSAT in its treatment of or finding about a change of working pattern. I am satisfied that facts found by the SSAT were open to it, in fact they were not in issue, and that those facts are capable of supporting a finding that the father changed his working pattern. I am not satisfied the SSAT took into account any irrelevant matter, or failed to consider a relevant matter.
The father's challenge to this finding fails.
Findings as to father's earning capacity
The father sought to challenge the SSAT’s treatment of figures from financial records from his business that the SSAT considered in considering the father's financial position in the context of determining whether it would be just and equitable to make a departure determination. The father referred at length to evidence before the SSAT. He sought to suggest that interpretations and inferences the SSAT made from these financial records were wrong, and that there was hence no evidence to support those findings and inferences.
As previously mentioned, in Tasman & Tisdall (SSAT Appeal), Brown FM (as he then was) said:
“45. As Gleeson C.J. pointed out in Re Minister for Immigration & Multicultural Affairs: Ex Parte Applicant S20/2002, (2003) 198 ALR 59 at 61:
‘To describe reasoning as illogical, or unreasonable or irrational, may merely be an emphatic way of expressing disagreement with it. If it is suggested that there is a legal consequence, it may be necessary to be more precise as to the nature and quality of the error attributed to the decision maker, and to identify the legal principal or statutory provision that attracts the suggested consequence.’”
The Full Court of the Federal Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd, [1993] FCA 456, (1993) 115 ALR 1, (1993) 18 AAR 9, (1993) 43 FCR 280, commented on the general limitations of an appeal on a question of law as follows-
“20 The limitation of the jurisdiction to the resolution of questions of law imposes a significant constraint upon the role of the Court in reviewing decisions of the Tribunal. The appealable error of law must arise on the facts found by the Tribunal or must vitiate the findings made or must have led the Tribunal to omit to make a finding it was legally required to make. A wrong finding of fact is not sufficient to demonstrate error of law … Where the decision of the Tribunal involves matters of fact and degree, then provided it applies correct principles of law, no appeal will lie.”
Mansfield J said in Comcare v Moon, [2003] FCA 569-
“33. … Care must be taken not to convert questions of fact into questions of law. The Tribunal, moreover, does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis, or because it adopts unsound reasoning: Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at 257; Willcocks v Comcare [2001] FCA 1315 at [6]. If there is any evidence rationally and legally capable of supporting a finding of fact, then the finding of fact does not involve an error of law. That is so even if there is a significant body of evidence pointing to a contrary finding of fact. And the decision as to what evidence is to be accepted is a matter for the administrative decision maker and not for the Court. It is not the function of the Court on an application such as the present to review the Tribunal's findings of fact and to substitute its view of the facts for those of the Tribunal.”
The father's challenge to the SSAT’s treatment of these financial records and the use it made of information derived from them does not raise a question of law. The fact the father could point to where the SSAT derived its figures, albeit he did not agree with the SSAT’s interpretation or use of those figures, clearly shows the father is raising questions of fact, not of law, and his challenge must fail.
Alleged bias and prejudgment
The father sought to suggest that the findings of fact and his treatment by the members constituting the SSAT for the appeal demonstrated actual “deep-seated” bias and prejudgment against him. He was asserting that the members of the SSAT acted in bad faith.
The fact the SSAT found against the father does not establish bias, actual or perceived, or prejudgment against him. Nor does the fact that the father vehemently disagrees with the findings made against him.
In SBBS v Minister for Immigration and Multicultural and Indigenous Affairs, [2002] FCAFC 361, (2002) 194 ALR 749, the Full Court of the Federal Court (Tamberlin, Mansfield and Jacobson JJ) said of a challenge to the bona fides of an administrative decision maker-
“43. First, an allegation of bad faith is a serious matter involving personal fault on the part of the decision maker. Second, the allegation is not to be lightly made and must be clearly alleged and proved. Third, there are many ways in which bad faith can occur and it is not possible to give a comprehensive definition. Fourth, the presence or absence of honesty will often be crucial; see SBAU at [27] citing SBAP v Refugee Review Tribunal [2002] FCA 590 per Heerey J at [49] and NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 805 per Hely J at [25].
44. The fifth proposition is that the circumstances in which the Court will find an administrative decision maker had not acted in good faith are rare and extreme. This is especially so where all that the applicant relies upon is the written reasons for the decision under review; SBAU at [28] citing SAAG v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 547 per Mansfied J at [35] and SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J.
45. Sixth, mere error or irrationality does not of itself demonstrate lack of good faith; SBAU at [29]. Bad faith is not to be found simply because of poor decision making. It is a large step to jump from a decision involving errors of fact and law to a finding that the decision maker did not undertake its task in a way which involves personal criticism; see NAAG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 713 at [24] per Allsop J quoted with approval in NAAV at [107] by Black CJ.
46. Seventh, errors of fact or law and illogicality will not demonstrate bad faith in the absence of other circumstances which show capriciousness; SBAU at [31].
47. Eighth, the Court must make a decision as to whether or not bad faith is shown by inference from what the Tribunal has done or failed to do and from the extent to which the reasons disclose how the Tribunal approached its task; SBAU at [32].
48. Ninth, it is not necessary to demonstrate that the decision maker knew the decision was wrong. It is sufficient to demonstrate recklessness in the exercise of the power; SCAZ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1377.”
In light of the above, in particular having regard to what was said at [44] and the fact that the father essentially relies on his assertion that the decision and certain findings were wrong, but has failed to demonstrate any error otherwise on a question of law and has failed to show that the SSAT ignored relevant material or considered irrelevant material, culpably or otherwise, or dishonestly misrepresented the facts, it is clear that there is no basis at all for the court to find any lack of bona fides, or any actual or perceived bias or prejudgment by either member of the SSAT. There is nothing demonstrated by the father to impugn the integrity of either member.
Decision
The father has failed to demonstrate any error on a question of law by the SSAT. If time were extended for the father to bring his appeal, it would be dismissed. Should the court extend time?
When properly considered, the father's challenge at all times was to the Tribunal’s fact finding. When the verbiage and emotive language is stripped away from the father's complaints, it is apparent that his case that the SSAT’s decision was infected by error on a question of law was tenuous at best. However, the failure to lodge his appeal within time was a problem of form, not substance. He attempted to appeal within time, but filed the wrong form. It was clear before the appeal period expired that he was seeking to appeal the decision, and neither respondent could be prejudiced by time being extended. On balance, and despite ultimately being satisfied the father’s case was always at best tenuous, I am satisfied I should extend time for the filing of his Notice of Appeal, which I will dismiss.
I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Judge Halligan
Date: 4 October 2013
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