Parkin and Sykes (SSAT Appeal)
[2011] FMCAfam 839
•18 August 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PARKIN & SYKES (SSAT APPEAL) | [2011] FMCAfam 839 |
| CHILD SUPPORT – Appeal from decision of SSAT on question of law – whether facts found by SSAT unsupported by any evidence – whether applicant denied procedural fairness – whether SSAT demonstrated bias against the applicant. |
| Child Support (Registration and Collection) Act 1988, s.110B Child Support (Assessment) Act 1989 |
| LDME & JMA (SSAT Appeal) [2007] FMCAfam 712, (2007) 38 Fam LR 132, (2007) FLC 98-034 PJ & Child Support Registrar [2007] FMCAfam 829, (2007) 38 Fam LR 31, (2007) FLC 98-035 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Comcare Australia v Lees (1997) 151 ALR 647 Collins v Minister for Immigration & Ethnic Affairs (1981) 58 FLR 407 Hill v Repatriation Commission [2005] FCAFC 23, (2005) 218 ALR 251 |
| Applicant: | MR PARKIN |
| Respondent: | MS SYKES |
| File Number: | PAC 1320 of 2007 |
| Judgment of: | Halligan FM |
| Hearing date: | 17 May 2011 |
| Date of Last Submission: | 17 May 2011 |
| Delivered at: | Parramatta |
| Delivered on: | 18 August 2011 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the Respondent: | Ms Kennedy |
| Solicitors for the Respondent: | Tiyce and Partners Lawyers |
ORDERS
The father's appeal against the decision of the Social Security Appeals Tribunal made on 5 November 2009 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Parkin & Sykes is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 1320 of 2007
| MR PARKIN |
Applicant
And
| MS SYKES |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an appeal by the father of 10 year old [X] on a question of law against a decision of the Social Security Appeals Tribunal (the SSAT), made on 5 November 2009, dismissing the father's application for review. The father sought review of a decision of an objections officer of the Child Support Agency (the CSA) in relation to a change of assessment decision of a senior case officer of the CSA.
The father's Notice of Appeal was filed on 13 December 2009. There has been a delay in hearing and determining the appeal because it was first necessary to hear and determine a departure application by the father for earlier periods of child support, and the hearing of the departure application was protracted in its presentation.
Background
The following facts are taken from the reasons for decision of the SSAT, and do not appear to be in issue.
[X] was born in 2001.
For the period 1 October 2008 to 30 November 2009, the father was assessed to pay a nil annual rate of child support under the formula for the administrative assessment of child support, based on a child support income amount for the father of $7976 and a child support income amount for the mother of $13,957.
On 21 January 2009, the mother applied to the CSA for a departure determination under Part 6A of the Child Support (Assessment) Act 1989 (the Assessment Act) and the father cross applied for a departure determination. Both parents applied on the basis of a suggested earning capacity of the other parent greater than their respective taxable incomes.
On 3 April 2009, a senior case officer, as delegate of the Child Support Registrar (the Registrar), determined that the father’s adjusted taxable income be set at $36,000 for the period 21 January 2009 to
31 December 2010.
On 3 April 2009, the father objected to the senior case officer’s decision under Part VII of the Child Support (Registration and Collection) Act 1988 (the Registration Act). On 26 June 2009, an objections officer, as delegate of the Registrar, allowed the father's objection in part, determining that the father's adjusted taxable income should be set at $31,000 for the period 21 January 2009 to
31 December 2009, and $33,000 for the period 1 January 2010 to
31 December 2010.
The applicable law
The right of appeal the father seeks to exercise 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.”
There was no challenge to the competency of the appeal.
In relation to reviewing the reasons of the SSAT to discern error, I said in LDME & JMA (SSAT Appeal), FMCAfam 712 at [34]-[35], (2007) 38 Fam LR 132, (2007) FLC 98-034-
“34 It is well settled that when reviewing an administrative decision for error, a 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).
35 The SSAT is an administrative tribunal, not a court of law, and is bound to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick (s.88, Registration Act, and compare s.141, Social Security (Administration) Act 1999). It is not afforded the luxury of lengthy deliberation on the reasons for its decisions, but must give the parties written notice of its decision on the review and written or oral reasons for that decision within 14 days of making the decision (s.103X, Registration Act). The function of the SSAT is not to deliver judgments of jurisprudential excellence when delivering its reasons. In my view, therefore, the above authorities apply to a s.110B appeal, and the court reviewing the reasons for decision of the SSAT in such an appeal to discern legal error should not adopt an overly pedantic approach.”
Nonetheless, as Riethmuller FM 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.”
The appellant’s challenge to the SSAT’s decision
The father conducted the appeal without legal representation, although he said he had some legal assistance in preparing his Notice of Appeal. As clarified with the father, the questions of law raised by his grounds of appeal, with the grounds of appeal from which they arise indicated in parenthesis, are-
a)Did the SSAT make the following findings of fact or any of them where there was no evidence to support the finding of fact-
i)
That the father's income for the period 21 January 2009 to 31 December 2009 was $31,000 and for the period
1 January 2010 to 31 December 2010 was $33,000 (see, for example, SSAT Reasons paras.[61] and [80]);
ii)That there was no evidence that the father actually spent the total of $12,100 for depreciation (SSAT Reasons para.[36], first sentence);
iii)That the expense of depreciation was not actually paid (“made”) (SSAT Reasons para.[38]);
iv)That the father described documents he attempted to present to the SSAT as being the mother's bank statements “accidentally delivered to or left at his address” (SSAT Reasons para.[42, first sentence).
(Grounds 1 and 6)
b)Did the SSAT deny the father procedural fairness in that-
i)it did not give the father an adequate opportunity to present his case at the hearing of his application for review in that he was not given the opportunity at the hearing to speak other than to answer questions (Ground 2); or
ii)it did not submit admissible evidence to the hearing (Ground 3); or
iii)it wrongly excluded evidence in refusing to allow the father to rely on documents in relation to the mother's financial position (SSAT Reasons para.[42]) (Ground 4); or
iv)it did not allow the father to present material, being the same material as referred to in preceding point (Ground 4); or
v)it did not allow the father to address material, namely the material in his letter to the SSAT dated 26 July 2009 (Ground 4); or
vi)it did not give the father an adequate opportunity to respond to relevant information which was against his case, in that the issue of depreciation was never discussed at the hearing before the Tribunal (Ground 5).
c)Was the evidence upon which the SSAT based its opinion (“used by the SSAT”) concocted? (Ground 6)?
d)Did the evidence upon which the SSAT based its opinion (“used by the SSAT”) “form no relationship to the original application by the mother to the CSA”? (Ground 6)?
e)Did the SSAT “plagiarise the CSA decision” (Ground 7)?
f)Did the SSAT display bias against the father (Ground 8)?
g)Did the SSAT make findings contrary to the evidence (Ground 8)?
h)Was the SSAT “corrupt”, fail to act independently of the CSA, and “collaborate in its findings in collusion with the CSA” (Ground 9)?
The father conceded that the questions of law at (b)(ii), (c), (d), and (g) of the preceding paragraph were covered by other questions of law and need not be separately addressed.
There was no transcript of the hearing before the SSAT before the court. Some of the bases of the father's appeal raised issues concerning what was said during the hearing before the SSAT. I explained to the father that in the absence of a transcript the court would be unable to entertain some of his appeal points and gave him the option of adjourning the hearing of the appeal to obtain a transcript. The father elected to proceed without a transcript and conceded that in the absence of a transcript he could not press the questions of law at (a)(iv) and (b)(i), (v) and (vi) above.
In relation to the question at (e) above, the father, when asked to specify what parts of the reasons of the SSAT were “plagiarised” from reasons of either the senior case officer or the objections officer, was unable to do so. The father having failed to articulate any basis for the contention inherent in the question, no issue is raised for my determination under this question.
In relation to the question of law at (h) above, the father withdrew his allegation of corruption, but not of collaboration and collusion. He could not articulate any discernible question of law in relation to this issue, and had no evidence of impropriety by the SSAT or any of its members deciding his application, beyond the fact of consistency between the CSA and the SSAT in the treatment of relevant matters, including depreciation. He conceded consistency of approach by the CSA and the SSAT did not of itself indicate impropriety, and I therefore will not further consider this issue.
Consideration
The SSAT is an administrative tribunal, not a court. It is not bound by rules of evidence, and nor is it limited in the evidence it considers to that which the parties place before it. The Tribunal itself may gather evidence and may base its decision in whole or in part on evidence it gathers, subject to affording the parties procedural fairness by informing them of the evidence gathered and giving them an opportunity to respond to that evidence.
On receiving an application for review, the SSAT Principal Member must give notice of the receipt of the application to, inter alia, the Registrar (Registration Act, s.95(2)). Within 28 days of receiving such notice, the Registrar must send to the SSAT Principal Member a statement of reasons for the decision subject to the review application and a copy of all documentation in his possession or under his control that is relevant to the review (Registration Act, s.95(3)). The fact the SSAT had the relevant file from the Registrar in this matter is not indicative of any impropriety in the form of collusion or collaboration between the Registrar and the SSAT. It is indicative of compliance with the law.
A review by the SSAT under Part VIIA of the Registration Act is a merits review of the decision under challenge. Where the decision under challenge is an objection decision, the SSAT review is in effect a merits review of the decision that was the subject of the objection. In this particular case, that was a decision on a change of assessment application under Part 6 of the Assessment Act. Thus, the task of the SSAT was to reconsider the initial change of assessment application, unfettered by the initial decision on that application or on the objection, and not limited by the evidence that was before the senior case officer when the initial change of assessment decision was made.
In reviewing the change of assessment decision, the SSAT, as well as the senior case officer and the objections officer, was bound to decide the matter in accordance with s.98C of the Assessment Act, that is, it was required to consider whether one or more of the grounds for departure specified in s.117(2) of the Assessment Act existed, and if so, to consider whether, having regard to s.117(4) to (9) of the Assessment Act, it would be both just and equitable and otherwise proper to make a departure determination. This is the task the SSAT set for itself in its reasons for deciding the review the way it did (see the SSAT’s Reasons for decision, paras.[54], [55], [76] and [82]).
In light of that background, I will consider each of the remaining questions of law raised by the father and consider whether he has established any ground for valid complaint.
Did the SSAT make findings of fact that the father's income for the period 21 January 2009 to 31 December 2009 was $31,000 and for the period 1 January 2010 to 31 December 2010 was $33,000 where there was no evidence to support those findings of fact?
Did the SSAT make a finding of fact that there was no evidence that the father actually spent the total of $12,100 for depreciation where there was no evidence to support the finding of fact?
Did the SSAT make a finding of fact that the expense of depreciation was not actually paid (“made”) where there was no evidence to support the finding of fact?
The father addressed these three questions together. They relate to the father's principal point of dissatisfaction with the outcome of the change of assessment process, namely the disallowance, or writing back, of deductions for depreciation, that he may legitimately claim under the taxation laws in the assessment of his taxable income, in the assessment of his child support liability.
The SSAT dealt at length and in detail with the father's income and expenses. The Tribunal in its reasons referred to the father's 2007/2008 tax return and recited various figures from that return (Reasons, para.[30]).
While the father's tax return for the 2008/2009 tax year had not been completed, the father advised the Tribunal his accountant had nearly finished his return for that year and he understood what his taxable income for that year would be. The father had “some of the financial statements for 2008/09” with him at the hearing, and the SSAT in its reasons used those documents in considering the father's financial position (Reasons, para.[15]). The Tribunal decided to use the more recent figures from these documents rather than the tax return figures for the preceding year as the decision under review had effect from January 2009 (Reasons, para.[33]).
The Tribunal found that the sources and amounts of income derived by the father for the 2008/2009 year were rental income on a positively geared investment property ($5,882), employment ($10,416), Centrelink payments ($7,216), and from a business (a loss of $5,724), giving him net income for the year of $17,790. These income figures took into account a total deduction of $13,900 for depreciation. (Reasons, para.[40])
The $12,100 amount referred to in the second of the questions currently under consideration relates to the father's depreciation deduction in relation to a [vehicle] he used in the business (Reasons, para.[36]). There was also a deduction of $1,800 for depreciation in relation to rental income (Reasons, para.[37]), hence the total depreciation figure of $13,900.
In relation to the treatment of the deductions for depreciation, the SSAT recorded in its reasons that the father told it he did not set money aside for depreciation (Reasons, para.[21]). The father initially sought to dispute that he had told the SSAT this, but withdrew the contention when he elected to proceed without a transcript of the hearing before the SSAT.
The SSAT described the allowance for depreciation as a “book entry (that) does not reflect the reality of what (the father) actually spent in business expenses in 2008/2009” (Reasons, para.[35]), and as a “notional expense” (Reasons, para.[79], sixth dot point). The SSAT noted that if depreciation was added back, the father's income for 2008/2009 was $31,690 (Reasons, para.[41]).
The SSAT made specific findings of fact that “(the father's) taxable income for 2008/09 is expected to be about $17,790” and that “(the father’s) 2008/09 tax return is expected to include total expenses of $13,900 for depreciation” (Reasons, para.[51]). The father does not challenge these findings. They are based on documents he produced at the hearing before the SSAT, albeit those documents, or copies of them, do not appear to form any part of the documentary record provided to the court by the SSAT Principal Member (see s.110K, Registration Act).
The SSAT made further comments about the father's income level, as follows-
“As discussed above, the tribunal was satisfied that (the father's) actual income for 2008/09 was at least $31,000 after depreciation expenses are added back. This is significantly higher than the expected $17,790 taxable income for 2008/09.” (Reasons, para.61])
“The tribunal was therefore satisfied that … (the father's) taxable income is not a true indication of his available financial resources.” (Reasons, para.[64])
“(The father's) … expected taxable income for 2008/09 is expected to be about $17,790. However as discussed above, his taxable income includes notional expenses such as depreciation. If those notional deductions are disregarded (the father's) available income in 2008/09 is $31,690. Coincidently (sic) this figure is close to the figure determined by the objections officer.” (Reasons, para.[79], sixth dot point)
“The tribunal considered increasing (the father's) income even higher that (sic) the amounts set by the objections officer to take into account possible benefits that (the father) may receive from the business. However any increase would have been relatively small and difficult to quantify. Therefore the tribunal concluded that the figures arrived at by the objections officer to set (the father's) income at $31,000 from 21 January 2009 to 31 December 2009 and $33,000 from 1 January 2010 to 31 December 2010 should stand.” (Reasons, para.[80])
Having withdrawn his complaint that he did not make the concession to the SSAT it said he did about not setting aside an amount equivalent to the depreciation deductions, the father instead contended that there was evidence that he did make payments in relation to depreciation, namely his repayments of capital on the loan he took out to purchase and fit out the [vehicle], as evidenced by statements for his loan account with [financial institution omitted], the [vehicle] loan being secured on a property he owns.
Those loan account statements are at pp.171-174 of the SSAT papers, and indicate that for the period 1 July 2008 to 13 March 2009, there was a total of $9,091.28 in interest charged to this account and the father made total loan repayments of $14,930.98. On the basis that the difference between interest charged and repayments made reflects the capital repaid over the period, capital repaid between 1 July 2008 and 13 March 2009 was $5,839.70. There is thus no evidence the father pointed to from which he suggested the actual capital repayments for the full year may be calculated. But averaging the part year figure to a daily rate and applying it to a full year would give a figure of about $8,326, less than the $12,100 depreciation claimed for the [vehicle], to which this loan relates. Thus, on the father's own argument, the claimed depreciation deduction exceeded any payment he could identify as representing an actual payment to support the deduction.
But this is not the issue. The father's right of appeal lies on a question of law. The question of law the father contended was that there was no evidence to support the factual finding as to his income.
A finding of fact without any evidence to support it is an error of law, but a finding of fact against the evidence or the weight of the evidence is not an error of law (Australian Broadcasting Tribunal v Bond, (1990) 170 CLR 321 at 335-336, per Mason CJ; Comcare Australia v Lees, (1997) 151 ALR 647 at 652; Collins v Minister for Immigration & Ethnic Affairs, (1981) 58 FLR 407 at 410-411, Hill v Repatriation Commission, [2005] FCAFC 23 at [92], (2005) 218 ALR 251).
There clearly was evidence to support the finding of fact by the SSAT about the father's income. That he disagrees with the writing back of an undisputed sum for depreciation illustrates this is so. His real complaint was that writing back. To the extent that involved fact finding by the SSAT, there was evidence to support the findings, and the father has failed to make out these grounds of his appeal.
Did the SSAT deny the father procedural fairness in that it wrongly excluded evidence in refusing to allow the father to rely on documents in relation to the mother's financial position?
Did the SSAT deny the father procedural fairness in that it did not allow the father to present documents in relation to the mother's financial position?
These questions raise the same issue. They relate to the following passages of the SSAT’s reasons (paras.[42] – [44])
“42. During the hearing (the father) attempted to present documents that he described as being (the mother's) bank statements accidentally delivered to or left at his address. The tribunal refused to admit or even look at the documents. Leaving aside that (sic) (the mother’s) concerns that (the father) had her documents without her knowledge or consent, the tribunal thought that blindsiding (the mother) in such a manner breaches procedural fairness. Directions were issued following a pre hearing conference that amongst other things provided that:
‘(The father) is to provide the following documents to the Tribunal by the close of business on 14 October 2009:
…
Any written material on which he intends to rely’
43. Often a tribunal can be flexible as to how evidence is presented given that it is common for parties in child support proceedings to be unrepresented and that a party may misunderstand tribunal procedures. For example the tribunal allowed (the father) to speak to recent documents concerning his 2008/09 tax returns. However the case of the purported bank statements is a very different matter and admission of those documents would clearly be in breach of procedural fairness.
Therefore the tribunal did not take into account the documents in question.”
The father submitted that he did not initially intend to rely on these documents. However, when he put to the SSAT during the hearing that the mother was not giving full and frank disclosure of her financial affairs, the SSAT asked him to prove it, and in response, he sought to rely on these documents, only to have the SSAT then refuse to accept them. He submitted that in these circumstances he was not bound to put the documents forward in advance and that they were not caught by the direction made at the pre hearing conference.
As mentioned, there is no transcript of the hearing before the SSAT, and hence it is not possible to confirm the circumstances in which the father sought to put these documents to the SSAT. Accepting that it was as described by the father, it is important in my view to remember what it was that the SSAT was deciding, namely cross-applications by the mother and the father to change the child support assessment. Each parties’ financial circumstances have always been front and centre of the controversy between them about child support.
The father gave no explanation why he did not seek to rely on these documents earlier. He at no stage suggested that he did not understand the documents were relevant until challenged by the SSAT to prove his contention about lack of proper financial disclosure by the mother. On the contrary, the fact the father sought to rely on these documents demonstrates that, at least in the father's mind, they were relevant to the mother's financial circumstances.
In those circumstances, I am satisfied the documents were caught by the pre hearing directions, and the father should have provided them to the SSAT by 14 October 2009. The father did not explain why he chose not to put them forward earlier.
For the father to make out this ground, he must demonstrate that the SSAT wrongly excluded these documents. The SSAT explained in its reasons why it did so, including by reference to issues of procedural fairness to the mother. In my view, in the circumstances of this case it was open to the SSAT to decline to receive these documents and I am not satisfied it wrongly decided to do so.
In those circumstances, the father has not made out this ground of appeal.
Did the SSAT display bias against the father?
The father submitted that the indication of bias against him is to be found at para.[20] of the SSAT’s reasons. The reasons there record-
20. … (The father) submitted that his total turnover for 2008/09 was about $30,000 and that he made about a $4,000 loss on the [omitted] business in 2008/09.”
The father said that in fact the turnover was $29,548 and the losses in fact $4,655. He submitted that rounding the first figure up and the second figure down artificially increased his apparent income.
In paras.[33] – [41] of its reasons, the SSAT considered the father's evidence in relation to his 2008/09 income, and carefully analysed that evidence in relation to each of his sources of income, namely from the [omitted] business, rental income, Centrelink and employment. The SSAT accepted all the father's figures. It also highlighted the total claim for depreciation in those figures, but again using the father's evidence.
When I drew these paragraphs of the SSAT’s reasons to the father's attention, he said that the statement in para.35 of the Reasons that he claimed $35,522 in expenses in relation to the [omitted] business was wrong, as he in fact claimed $34,203. As mentioned already, the father provided the source documents for this information to the SSAT during the hearing, and they do not appear to be included in the documents provided to the Court by the SSAT Principal Member under s.110K of the Registration Act. Hence I am unable to verify what those documents record. However, accepting what the father contended, this misstatement of the evidence, if that is what it was, has the reverse effect to the father's complaint in relation to para.[20], that is it is an inaccuracy, if in fact that is what it is, in the father's favour, as it would reduce his otherwise income, not increase it.
The figures stated in para.[35] of the reasons are indeed difficult to reconcile mathematically. However, the father did not suggest that the figures in paras.[40] and [41] did not accurately record his evidence. This summarised the net rental income, employment income, Centrelink income and net loss from the [omitted] business for the 2008/09 year, giving his taxable income for the year, and the total amount claimed for depreciation.
Any inaccuracy or imprecision to which the father referred has not affected the ultimate decision of the SSAT, which was to fix the father's adjusted taxable income at $31,000 for the period 21 January 2009 to 31 December 2009 and $33,000 for the period 1 January to
31 December 2010 by reference to his 2008/09 taxable income of $17,790 but adding back the amount claimed for depreciation, namely $13,900, which gives a figure of $31,690.
The father has not shown how any inaccuracy or imprecision to which he referred could indicate any bias, actual or perceived, against him by the SSAT. Any inaccuracy or imprecision to which the father referred has not been shown to have affected the figures actually used to arrive at the ultimate figure adopted by the SSAT for the father's adjusted taxable income.
I am therefore not satisfied that the father has made out this ground.
Decision
The father has thus failed to demonstrate that the decision of the SSAT is affected by error on a question of law, and hence his appeal will be dismissed.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Halligan FM
Date:
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