Penman & Child Support Registrar & Anor (SSAT Appeal)
[2013] FCCA 492
•14 June 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PENMAN & CHILD SUPPORT REGISTRAR & ANOR (SSAT APPEAL) | [2013] FCCA 492 |
| Catchwords: PRACTICE AND PROCEDURE – Where Appellant raises additional ground of review in submissions. |
| Legislation: Family Law Act 1975 (Cth) s.117 |
| Cases cited: Attorney-General (NSW) v Quin (1990) 170 CLR 1 Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232; (2003) 76 ALD 321 Carlson & Acuff (SSAT Appeal) [2010] FMCAfam 677 Carrigan & Fredericks (SSAT Appeal) [2011] FMCAfam 544 Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCAFC 137; (2009) 179 FCR 554 Clements v Independent Indigenous Advisory Committee [2003[ FCAFC 143; (2003) 131 FCR 28 Comcare v Etheridge [2006] FCAFC 27; (2006) 149 FCR 222 Commissioner of Taxation v Crown Insurance Services Ltd [2012] FCAFC 153; (2012) 294 ALR 522 CZBB & CZBC v Minister for Immigration & Anor [2013] FCCA 310 Farrens & Farrens (SSAT Appeal) [2010] FMCAfam 325 Fletcher and Others v Federal Commissioner of Taxation (1988) 84 ALR 295 Forbes & Bream [2010] FamCAFC 6 Gyselman & Gyselman (1991) 15 Fam LR 219; (1992) FLC 92-279 Hides & Hatton (1997) 139 FLR 91; 21 Fam LR 855; FLC 92-759 House v Defence Force Retirement and Death benefits Authority [2011] FCAFC 72; (2011) 193 FCR 112 Jordan & Verne (SSAT Appeal) [2012] FMCAfam 21; (2012) 46 Fam LR 629 Khan v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] FCA 1060 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 LDME& JMA (SSAT Appeal) [2007] FMCAfam 712 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12; 78 ALD 224; 78 ALJR 992 Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575 PJ & Child Support Registrar (SSAT Appeal) [2007] FMCAfam 829 Public Service Board of NSW v Osmond (1986) 159 CLR 656 Re Refugee Tribunal; Ex Parte Aala [2000] HCA 57; (2000) 204 CLR 82; 176 219 RWF & BEB [2007] FMCAfam 483 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 Sullivan v Department of Transport 20 ALR 323; 1 ALD 383 Tasman & Tisdell (SSAT Appeal) [2008] FMCAfam 126 Tyagi & Meares (SSAT Appeal) [2008] FMCAfam 886 WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74 Waites & Lawson (SSAT Appeal) [2011] FMCAfam 42 Wright & Wright & Anor (SSAT Appeal) [2009] FMCAfam 979 | ||
| M. Aronson, M. Groves, Judicial Review of Administrative Action (Fifth Edition) (Sydney: Lawbook Co. 2013 | ||
| Appellant: | MR PENMAN | |
| First Respondent: | CHILD SUPPORT REGISTRAR |
| Second Respondent: | MS MORGAN |
| File Number: | SYC 6524 of 2012 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 11 March 2013 |
| Date of Last Submission: | 11 March 2013 |
| Delivered at: | Sydney |
| Delivered on: | 14 June 2013 |
REPRESENTATION
| The Appellant: | In person |
| Solicitor for the First Respondent: | Mr Gouliaditis |
| Solicitors for the First Respondent: | Australian Government Solicitor |
| Solicitor for the Second Respondent: | Ms Cole |
| Solicitors for the Second Respondent: | Legal Aid NSW |
ORDERS
The Appeal is dismissed.
The decision of the Social Security Appeals Tribunal made on 3 September 2012 and posted on 13 September 2012 is affirmed.
The order staying payments of child support made on 11 December 2012 is discharged.
Written submissions in support of any application for costs and any affidavit setting out the way in which the costs sought are quantified are to be filed and served within seven (7) days of the date of these orders and written submissions in opposition to any such application and any affidavit in support are to be filed and served within a further period of seven (7) days.
IT IS NOTED that publication of this judgment under the pseudonym Penman & Child Support Registrar & Anor (SSAT Appeal) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 6524 of 2012
| MR PENMAN |
Applicant
And
| CHILD SUPPORT REGISTRAR |
First Respondent
| MS MORGAN |
Second Respondent
REASONS FOR JUDGMENT
Appeal
This is an Appeal from a decision of the Social Security Appeals Tribunal made on 3rd September 2012 and posted on 13th September 2012. The Tribunal set aside the decision under review and substituted a decision that:
·for the period 4th October 2011 to 31st October 2013 the Appellant’s adjusted taxable income is set at $64,865;
·for the period 4th October 2011 to 31st October 2013, the Second Respondent’s adjusted taxable income is set at $47,368.
In his (Further) Amended Notice of Appeal filed on 27th November 2012, the Appellant seeks the following orders:
1. Appeal allowed.
2. The order of the Social Security Appeals Tribunal given on 3 September 2012 be set aside.
3. An order that sets the adjusted taxable income of Mr Penman equal to that lodged with the Australian Taxation Office.
4. An order that sets the adjusted taxable income of Ms Morgan that includes salary/wages based full-time earning capacity and all parenting payments.
5. In the alternative to order 3 and order 4, an order that the matter be remitted to the Social Security Appeals Tribunal to be decided according to law.
6. A stay on all Child support payments until the determination of the appeal.
7. Costs.
The Appellant relies on the following grounds of appeal:
1.Whether the Tribunal failed to accord the Applicant[1] procedural fairness.
[1] sic
2. Whether the Tribunal denied the Applicant natural justice.
3. Whether the Tribunal’s decision was irrational.
4. Whether the Tribunal’s decision was illogical.
5. Whether the Tribunal failed to provide adequate reasons.
6.Whether the Tribunal made significant errors of fact or conclusions that were not open to be made on the evidence and or made findings of fact or conclusions that were not based on evidence.
7.Whether the Tribunal had regard to or considered erroneous or irrelevant matters.
8.Whether the Tribunal had erred in law regarding the income, earning capacity, property and financial resources of the Applicant’s mother, Mrs P.
9.The Applicant is dyslexic. At the hearing the Second Respondent was permitted to adduce and rely on evidence that was served on the Applicant at the hearing. By reason of the Applicant’s disability the Applicant was at a disadvantage and not able to properly consider the evidence, test the evidence and or provide evidence in reply.
10.The hearing should have been adjourned to a further date to ensure the proceedings were conducted in a procedural fair manner and to allow the Applicant to properly consider the evidence, test the evidence and or provide evidence in reply and take advice.
11.The Applicant was denied natural justice in the presentation of his case and the ability to properly call medical evidence.
12.The Tribunal had regard to irrelevant matters or gave weight to irrelevant matters which were compounded by the denial of natural justice and or procedural fairness in that the Applicant was unable to properly consider the evidence, test the evidence and or provide evidence in reply.
13.The Tribunal made findings and findings of fact that were not reasonably open on the evidence.
14.The Tribunal failed to give proper weight and consideration to the fact that the Applicant’s medical condition impacts the earning capacity.
15.The Tribunal failed to give adequate reasons or set out the reasoning process for the findings of fact and decision.
16.The Tribunal failed to include parenting payments made to Ms Morgan that are legally required to (be) considered income for the purpose of Child maintenance calculations.
Background
The Appellant and the Second Respondent were married [in] 1987 and separated in July 2010. There are three children of the marriage, aged 14, 13 and 8 years.
The parties’ child support history is set out in the following documents:
a)the Tribunal’s Reasons for Decision at paragraphs [2] to [22];
b)the Child Support Registrar’s Submissions at paragraphs [16] to [18]; and
c)the Second Respondent’s written submissions at paragraph [4].
The parties’ child support case commenced on 21st October 2010. From 29th July 2011 to 4th September 2011 the Appellant was assessed to pay child support of $18.00 per annum to the Second Respondent.
On 5th September 2011 the Appellant provided an estimate of income of nil for the 2011/2012 financial year. The Second Respondent was assessed to pay child support to the Appellant at an annual rate of $153.00 per year for the period 5th September to 15th November 2011. This assessment was based on the Second Respondent’s 2009/2010 adjusted taxable income of $20,755.00 and the Appellant’s estimated income of nil. The annual rate of child support for the parties’ eldest son increased to $168.00 for the period 16th November 2011 to 20th January 2012, as he had attained the age of 13 years.
On or about 5th October 2011 the Appellant contacted the Child Support Agency and requested an increase in the assessment of child support payable by the Second Respondent, based on his estimate that her annual income was at least $54,600.00.
On 17th October 2011 the Second Respondent applied for a departure from the administrative assessment based on the Appellant’s income and earning capacity.
On 24th November 2011 the Appellant applied for a departure from the administrative assessment for the period 1st July 2010 to 23rd November 2011 on the ground that the assessment did not correctly reflect either parent’s income, property, financial resources or capacity to earn an income.
On or about 20th December 2011 the Appellant again applied for a departure from the administrative assessment for the same period.
On 23rd January 2012 a senior case officer of the Child Support Agency made a change of assessment decision, departing from the administrative assessment by setting the annual rate of child support for both parties at nil for the period 23rd January 2012 to 31st October 2013.
On 29th January 2012 the Appellant objected to that decision.
On 28th March 2012 an objections officer disallowed the objection.
That same day, the Appellant applied to the Social Security Appeals Tribunal for review of that decision.
A pre-hearing conference took place on 17th May 2012, at which time the Principal member of the Tribunal issued directions.
There was a hearing before the Tribunal on 18th July 2012. Both the Appellant and the Second Respondent attended. Despite an objection from the Appellant, the Tribunal proceeded with the hearing.
On 2nd August 2012 the Tribunal issued further directions requiring the Appellant to produce further documents. A decision was made to conduct a further hearing.
A further hearing took place on 3rd September 2012. Both the Appellant and the Second Respondent attended. The Appellant’s mother attended and gave evidence.
The Tribunal made its decision on 3rd September and released its reasons on 13th September 2012.
The Social Security Appeals Tribunal Decision
The Tribunal’s decision is set out at Paragraphs [87] and [88] of the Tribunal’s Reasons for Decision:
87.Section 98S of the Act sets out the departure determinations that can be made. Paragraph 98S(1)(g) provides that the Registrar, and the Tribunal, standing in place of the Registrar, may make a determination varying a parent’s adjusted taxable income.
88.On 3 September 2012 the Tribunal decided to set aside the decision under review and substitute its decision that:
· for the period 4 October 2011 to 31 October 2013, Mr Penman’s adjusted taxable income is set at $64,865;
· for the period 4 October 2011 to 31 October 2013, Ms Morgan’s adjusted taxable income is set at $47,368.
The Tribunal’s Reasons for Decision
The Tribunal noted the Appellant’s claim that he did not believe that there should be a deviation from the ordinary formula assessment, as his income had not greatly reduced since the parties separated, but if there should be a deviation, it should be applied to the Second Respondent.
The Tribunal also noted the Second Respondent’s evidence that she had started looking for another job, after having left the parties’ [omitted] business, and was seeking a position where she could work part-time around school hours so that she was able to care for the children. She had obtained a part-time job and was not pursuing full-time work.
The Second Respondent said that she did not want child support from the Appellant, but thought it was unfair to make her pay child support to him, because of his high earning capacity.
The Tribunal found that the Appellant had changed his occupation and his working pattern. Further:
The Tribunal did not accept his evidence that he is occupied for at least 40 hours per week advancing his company’s business. His evidence indicates he is doing little or no paid work.[2]
[2] Tribunal Reasons for Decision at [56]
Whilst the Tribunal noted the medical evidence from the Appellant’s general medical practitioner about his neck pain, which renders him unable to perform computer work, the Tribunal was “not satisfied that the medical evidence established that Mr Penman’s decision to change his occupation and working pattern was due to the state of his health.”[3]
[3] Ibid at [57]
The Tribunal accepted that:
a)the Appellant’s caring responsibilities for the children would affect his ability to travel interstate to work; and
b)he ceased to be the operator of a [omitted] because the owner of the venue evicted the business.
However, the Tribunal did not accept that either of those matters was the cause of the Appellant’s decision to change his occupation and work pattern. The Tribunal also noted that 12 months had elapsed since the Appellant’s business had been evicted from the venue.
The Tribunal found that:
The available evidence leads the Tribunal to conclude that Mr Penman is not in paid employment because he chooses not to be. In those circumstances Mr Penman has not satisfied the Tribunal that the effect on the administrative assessment of child support was not a major purpose of his change in occupation, change in work pattern and decision not to obtain other work.[4]
[4] Tribunal Reasons for Decision at [59]
The Tribunal found that the Second Respondent had changed her occupation and, whilst she still had caring responsibilities for the children, these had been reduced as the children have grown older.
The Tribunal found that the Second Respondent had “ample opportunity to find full-time work”.[5]
[5] Ibid at [60]
The Tribunal also found that:
a)the Second Respondent’s current income was greater than her income as a [business] operator but her financial resources were diminished by her decision to leave the business; and
b)the Second Respondent neither wished to pay nor receive child support.
As was the case with the Appellant, the Tribunal considered that the Second Respondent had not demonstrated that the effect on the administrative assessment of child support was not a major purpose of the change in occupation and decision to work part-time.
The Tribunal concluded that it could determine that the earning capacity of both parents was greater than was reflected in their incomes.[6]
[6] Ibid at [64]
Whilst the Tribunal was unable to determine precisely what the Appellant’s earning capacity is, it considered that it was greater than nil and went on to find that he should be regarded as having an earning capacity of at least the annualised male average wage, currently $64,865.00 per annum.
The Tribunal noted the Second Respondent’s annual income from part-time work was about $35,552.00. It found that if she were to work five days a week her earnings would be about $47,368.00.
The Tribunal found that the earning capacities of both parties were substantially greater than the incomes used in the administrative assessment, $20,775.00 for the Second Respondent and nil for the Appellant. As it considered that these discrepancies amounted to special circumstances that made the application of the administrative assessment result in an unjust and inequitable determination of financial support.
The Tribunal concluded that the ground for departure in s.117(2)(c)(ib) of the Child Support (Assessment) Act existed.
The Tribunal then went on to consider whether it would be just and equitable to make a particular determination, considering the matters set out in s.117(4) of the Act. After considering its factual findings, the Tribunal concluded that it would be just and equitable to make a determination to depart from the administrative assessment.
The Tribunal decided to set the parties’ adjusted taxable incomes at $64,865.00 and $47,368.00 respectively and stated at [82]:
Mr Penman applied for a departure with effect from 1 July 2010, but the child support case did not start until October 2010. The Tribunal considers it appropriate to commence the departure determination from 4 October 2011, the date of receipt of
Mr Penman’s departure application as recorded by the Agency. The Tribunal considers that the determination should apply to 31 October 2013 as this will provide some certainty to the parents.[7]
[7] Tribunal Reasons for Decision [82]
The Tribunal then turned its attention to whether it would be “otherwise proper” to make a departure determination. In doing so, it referred to the matters set out in s.117(5) of the Act.
The Tribunal decided that it would be otherwise proper to depart from the administrative assessment for these reasons:
84.The child support law recognises that each parent has a primary duty to maintain their children.
85.Mr Penman and Ms Morgan have shared care of the children and they both receive family tax benefit from Centrelink for the children. An increase to the rate of child support may reduce the rate of family tax benefit payable to Ms Morgan and thereby affect the cost to the community.[8]
[8] Tribunal Reasons for Decision [84][85]
Submissions
The Appellant, the Child Support Registrar and the Second Respondent all prepared comprehensive written submissions. The Appellant also relied on affidavit by his mother dated 11th January 2013, in which she set out her impressions of the Tribunal hearing that took place on 3rd September 2012.
The Appellant’s Submissions
In the introductory paragraphs of his submission, the Appellant referred to the decisions of this Court in Carrigan & Fredericks (SSAT Appeal)[9]; Tasman & Tisdell (SSAT Appeal)[10] and Jordan & Verne (SSAT Appeal)[11].
[9] [2011] FMCAfam 544
[10] [2008] FMCAfam 126
[11] [2012] FMCAfam 21; (2012) 46 Fam LR 629
The Appellant submits that the Tribunal erred in finding that there were special circumstances that provided a ground for departure in respect of the administrative assessment. This is because the Tribunal erred in determining that the Appellant’s earning capacity is substantially greater than the income used in the assessment.
It is submitted that this finding is a conclusion of law, not of fact, and is therefore appealable.
The Appellant further submits that the Tribunal’s Reasons for Decision at [67] fail to disclose the reasoning process in reaching the conclusion that the Appellant should be regarded as having an earning capacity of at least the annualised male average total weekly earnings. The Tribunal also erred in finding that the Appellant’s income was “nil”.
The Appellant also complains that the Tribunal denied him procedural fairness and natural justice in that he was not allowed to submit documentation obtained from the Agency under an FOI Request. (the Tribunal refers to this matter at paragraph [13] of its Reasons for Decision).
The Appellant refers to the decision of this Court in LDME & JMA (SSAT Appeal)[12] at [17]-[44] in support of his submission that the Tribunal did not explain the reasoning behind its findings of fact.
[12] [2007] FMCAfam 712
Further, he refers to WAIJ v Minister for Immigration & Multicultural Affairs[13], where the Full Court of the Federal Court held at [21] that failure by a Tribunal, in this case the Refugee Review Tribunal, to act “judicially” will necessarily stamp the review procedure as one which did not accord an applicant practical fairness or justice. Again, at [22], the Court held that the requirement for the review procedure to be carried out according to law is an irreducible duty arising out of s.75(v) of the Constitution.
[13] [2004] FCAFC 74
The Appellant went on to submit that the Tribunal should have given him an opportunity to explain why the Agency had recorded an income estimate of zero before making findings about his financial position and that of the company (Fletcher and Others v Federal Commissioner of Taxation[14] and PJ & Child support Registrar (SSAT Appeal).[15]
[14] (1988) 84 ALR 295
[15] [2007] FMCAfam 829
In respect of the Appellant’s claim that the Tribunal decision was irrational and illogical (Grounds 3 and 4), he refers to the High Court decision Minister for Immigration and Citizenship v SZMDS[16], where Crennan and Bell JJ observed at [130]:
In the context of the Tribunal’s decision here, “Illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came…is one at which no rational or logical decision maker could arrive on the same evidence.[17]
[16] [2010] HCA 16; (2010) 240 CLR 611
[17] Ibid at [130]
In that case, Gummow ACJ and Kiefel J at [40] noted the earlier comments of Gummow and Hayne JJ in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB[18], where their Honours had said at [38]:
…the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds.[19]
[18] [2004] HCA 32; (2004) 207 ALR 12; 78 ALD 224; 78 ALJR 992
[19] Ibid at [40]
The Appellant submits that the Tribunal erred in having regard to the income he earned as an [omitted], which had been earned prior to 2007, 4 years earlier. Further, he submits that “the SSAT has erred at law having regard to the Applicant’s income and earning capacity prior to 2007”.[20]
[20] Appellant’s submissions at [24]
The Appellant submitted that, as he had provided uncontradicted medical evidence from his general medical practitioner who expressed the opinion that his medical condition would prevent him from undertaking computer work, there was no basis on which the Tribunal could find that there was no medical evidence to support his claim.
The Appellant submitted that, when he attended the hearing on 18 July 2012, he received for the first time copies of the Second Respondent’s credit card statements. As he is dyslexic, the Appellant did not feel “confident (or competent) in his ability to continue the hearing that day”[21] and sought an adjournment to another day. The application for an adjournment was refused. He submits that he was denied an opportunity to present his case properly, which is a denial or procedural fairness by the Tribunal trying to make things fair by allowing him time to consider the documents (see Re Refugee Review Tribunal; Ex parte Aala[22] at [4]).
[21] Ibid at [36]
[22] [2000] HCA 57; (2000) 204 CLR 82; 176 ALR 219
Further as to procedural fairness, the Appellant relies on Fletcher and Others v Federal Commissioner of Taxation[23] and PJ & Child Support Registrar (SSAT Appeal)[24] at [24]-[64].
[23] supra
[24] supra
The Appellant submitted that the failure by the Tribunal to allow him an extension of time to obtain and provide further or additional medical evidence in respect of his capacity for work falls within his complaints about:
a)the failure by the Tribunal to provide procedural fairness and natural justice; and
b)the Appellant’s complaint at Ground 14 that the Tribunal failed to give proper weight and consideration to the fact that the Appellant’s medical condition impacts his earning capacity.
He further submits that, his capacity for work having been raised, the Tribunal should have allowed reasonable time for him to obtain further medical evidence.
The Appellant submits that the Tribunal fell into jurisdictional error by failing to construe the legislative provisions of s.117(7B) of the Assessment Act, which he also claimed showed irrational reasoning, and referred to the decision of Riethmuller FM[25] in Waites & Lawson (SSAT Appeal)[26] at [17]-[19] (see also Carlson & Acuff (SSAT Appeal)[27] at [66]-[69], where Riethmuller FM stated that s.117(7B)(c) creates a rebuttable presumption, the onus or rebutting the presumption being on the parent.[28] Based on the evidence, it was clearly not open to the Tribunal to determine that the Appellant had “in his mind” to have his business evicted and as a result reduce his earning capacity.[29]
[25] As his Honour then was
[26] [2011] FMCAfam 42
[27] [2010] FMCAfam 677
[28] Ibid at [65]-[66]
[29] There does not appear to be a finding of this nature in the Tribunal’s Reasons for Decision
The Appellant further submits that the Tribunal erred in considering the Appellant’s mother’s income, earning capacity, property and financial resources in determining the Appellant’s earning capacity.
Again, the Appellant submits that the Tribunal was required by s.117(7A)(b)(i) to consider whether there were special circumstances that made it appropriate to have regard to Mrs P’s earning capacity and other matters. He submits that the reasoning used by the Tribunal to do so cannot, as a mater of law, amount to special circumstances. The Tribunal is required to disregard the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child, or who has such a duty but is not a party to the proceedings, unless in the special circumstances of the case, without a finding that special circumstances exist, such a determination is a determination of jurisdictional fact.
The Appellant submits that there is nothing in the facts that amount special circumstances.
The Appellant relies on the decisions of this Court in Wright & Wright & Anor (SSAT Appeal)[30] at [20]-[24]. He submits that, whilst his business is struggling and has significant debts, it would be unfair and unreasonable for the Tribunal to find effectively that he should turn his back on the business and return to [omitted].
[30] [2009] FMCAfam 979
The Appellant refers to the decision of Farrens & Farrens (SSAT Appeal)[31] at [26]-[36] to set out the obligations of the Social Security Appeals Tribunal once departing due to special circumstances.
[31] [2010] FMCAfam 325
The Appellant submits that the Tribunal “failed to properly consider the financial circumstances of the parties”[32] in the manner required under s.117(4) of the Act having regard to the decisions of PJ & Child Support Registrar (SSAT Appeal)[33] and Tyagi & Meares (SSAT Appeal)[34], saying that in this case no consideration was given to the needs of the parties’ children with respect to school fees. He then sets out in some detail information about the children attending a particular private school, stating that there was ample evidence as to the manner in which the parents expected the children to be educated.
[32] Appellant’s Submissions at [101]
[33] supra
[34] [2008] FMCAfam 886
The Appellant refers the Court to the decision of the Full Court in Hides & Hatton[35], to make two points:
a)that the Tribunal was alive to the fact that one of the parties’ children was due to commence at the particular private school in 2013 but there is no suggestion in the Tribunal’s decision that it considered the additional expense that will be placed on the Appellant;[36] and
b)the reasoning of the Tribunal has deviated from the ordinary determination in that it has used the findings as to the Appellant’s earning capacity to determine special circumstances.
[35] (1997) 139 FLR 91; 21 Fam LR 855; FLC 92-759
[36] This appears to be a submission going to the factual merits of the Appellant’s case rather than a submission as to an error of law.
This latter point, it is submitted, “highlights bias on behaviour of the SSAT”.[37] The Appellant goes on to develop his argument about bias, referring to the decision of the High Court in Laws v Australian Broadcasting Tribunal[38] where Gaudron and McHugh JJ referred to the test for apprehension of bias at page 100 of the decision:
When suspected prejudgment of an issue is relied upon to ground the disqualification of a decision-maker, what must be firmly established is a reasonable fear that the decision-maker’s mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her.
[37] Appellant’s Submissions at [112]
[38] (1990) 170 CLR 70
I note that this claim of bias is not included amongst the 16 grounds of Appeal in the Amended Notice of Appeal filed on 27th November 2012. It will be considered and referred to as Ground 17.
Curiously, the Appellant’s submission then refers to paragraph [27] of the decision of the Full Court of the Family Court in Forbes & Bream.[39] The paragraph referred to, when read in context, does nothing more than paraphrase a statement of the law made by Sexton FM in RWF & BEB[40] at [16]. Her Honour’s recital of the law was not an issue in the appeal.
[39] [2010] FamCAFC 6
[40] [2007] FMCAfam 483
The Appellant goes on to submit that the Tribunal failed to include various parenting payments made to the Second Respondent which he claims “are legally required to (sic) considered income for the purpose of Child maintenance calculations”.[41] The Appellant asserts:
The omission by the SSAT to include and or consider these payments is an error of law.[42]
[41] Appellant’s Submissions at [115]
[42] Ibid at [116]
The Appellant provides no reason as to why this asserted omission is an error of law.
The Child Support Registrar’s Submissions
The Child Support Registrar submits that a party may only appeal to this Court from the Social Security Appeals Tribunal on a question of law (Registration and Collection Act, s.110B) and submits that:
a)the Court’s jurisdiction is only enlivened by a question of law being properly raised on the appeal;
b)the question of law must be articulated with precision and must be a pure question of law, not a mixed question of law and fact (Commissioner of Taxation v Crown Insurance Services Ltd[43] at [13]; Comcare v Etheridge[44] at [16]); and
c)the articulation of a question of law is not merely a procedural nicety but a jurisdictional requirement (Khan v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs[45] at [3]).
[43] [2012] FCAFC 153; (2012) 294 ALR 522
[44] [2006] FCAFC 27; (2006) 149 FCR 522
[45] [2012] FCA 1060
On this basis, the Registrar argues that the Amended Notice of Appeal largely does not articulate proper questions of law but makes generalised assertions of error and objects to the competency of the appeal to the extent that any ground relied upon does not on its face disclose a pure question of law or specify “the links between the questions of law, the circumstances of the particular case and the orders sought on the appeal” (see Birdseye v Australian Securities and Investments Commission[46] at [18]).
[46] [2003] FCAFC 232; (2003) 76 ALD 321
The Registrar is critical of the Appellant’s submission, which was apparently drafted for him by counsel who has remained anonymous, asserting that the submission makes no attempt to articulate any pure questions of law and makes hardly any attempt to link submissions to specific grounds of appeal:
Though referenced to and laden with case law, the Appellant’s submissions seek to quarrel with the merits of the Decision. But no amount of summation of the ratio of selected cases, nor reference to cases of dubious relevance, can turn questions of fact into questions of law.[47]
[47] Child Support Registrar’s Submissions at [6]
In his submissions, the Registrar considered the Tribunal decision itself, noting that the Tribunal correctly identified the issues raised by the review by reference to the three matters set out in s.98C(1)(b) of the Assessment Act and the elucidation of the term “special circumstances” in Gyselman v Gyselman[48] .
[48] (1991) 15 Fam LR 219; (1992) FLC 92-279
The Registrar submitted that the Tribunal had correctly considered three issues:
a)Whether a ground for departure as mentioned in s.117(2) of the Assessment Act;
b)Whether it was just and equitable to make a particular determination, as set out in s.117(4) of the Act; and
c)Whether it was otherwise proper to make a particular departure determination, where the Tribunal was required to have regard to the matters in s.117(5).
The Registrar then addressed the Appellant’s Submissions by grouping matters under various subject headings:
a)The challenges to the SSAT’s findings with respect to the Appellant’s earning capacity;
b)The procedural fairness challenges;
c)The challenge to the finding that the determination would be just and equitable;
d)The challenge to the SSAT’s determination that s.117(7B) was satisfied;
e)The challenge to the grounds of bias; and
f)Ground 16 (not taking into account the Second Respondent’s various government benefits).
As to the Appellant’s challenges to the Tribunal’s findings with respect to the Appellant’s earning capacity, the Tribunal’s determination of his earning capacity is a matter of fact, not a matter of law (Jordan & Verne (SSAT Appeal)[49] at [50]).
[49] supra
The Registrar submits that:
a)The Tribunal’s finding is supported by reasons, which are set out in paragraphs [65]-[-67] of the decision;
b)The Tribunal did not find that the Appellant’s actual income was $0 for the 2012 financial year; the issue before the Tribunal was whether there should be a departure from administrative assessment based on the Appellant’s estimated income of nil;
c)The Appellant was not denied natural justice by not being permitted to adduce evidence of a bundle of documents obtained from the Registrar, because the Registrar had already provided those documents to the Tribunal, as the Registrar was required to do under s.95(3) of the Registration and Collection Act;
d)The Appellant’s complaint that the Tribunal accepted the Second Respondent’s allegation that he continued to earn income as an [omitted] after the [business] commenced operating is without substance;
e)The Tribunal did not have regard to the Appellant’s 2001-2007 income and disregard his income for the 2008 to 2011 financial years, as it did consider that income;
f)The Tribunal proceeded on the basis that the Appellant would not be able to earn his previous income as an [omitted], which is why it determined his earning capacity to be the annualised male average total weekly earnings;
g)The Tribunal did not make a finding, contrary to the Appellant’s claim that the financial resources available to the Appellant “are substantial”, but “were substantial”[50]; and
h)The Tribunal did not err in assessing the Appellant’s earning capacity in the manner it did on the basis that s.58 of the Assessment Act requires a parent’s adjusted taxable income to be determined in accordance with that section, as that section deals with administrative assessment and the issue before the Tribunal was whether there should be a departure from administrative assessment.
[50] Emphasis added
As to the Appellant’s procedural fairness challenges to the Tribunal decision, the Registrar concedes that the Tribunal is obliged to act fairly in conducting the review and a denial or procedural fairness may give rise to a question of law (Sullivan v Department of Transport[51]; Clements v Independent Indigenous Advisory Committee[52]at [3]-[8]) but submits that the content of the Tribunal’s duty is shaped by ss.103C(1) and 103N of the Registration and Collection Act. A party to a review proceeding must be given a meaningful opportunity to give evidence and present arguments.[53]
[51] (1978) 20 ALR 323; 1 ALD 383
[52] [2003] FCAFC 143; (2003) 131 FCR 28
[53] Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575 at [19]-[22]
The Registrar submits that the Appellant was not denied procedural fairness by the Tribunal by refusing the Appellant’s request for an adjournment on 18th July 2012 because it ultimately deferred making its decision and conducted a further hearing on 3 September 2012.
Second, the Tribunal required the Appellant to produce any further medical evidence by 15th August 2012. The appellant sought an extension of time, which was refused, but the Appellant had obtained a medical certificate supported by a radiology report and submitted that evidence to the tribunal on 19th August.
The Registrar submits that, even if the Court were to find that there was a denial of procedural fairness, the Court should exercise its discretion to refuse relief because the errors did not deny the Appellant the possibility of a better outcome (House v Defence Force Retirement and Death Benefits Authority[54] at [16]-[31], [133]-[135]).
[54] [2011] FCAFC 72; (2011) 193 FCR 112
The Registrar submits that the Tribunal did not contravene s.117(7A)(b) of the Assessment Act by its finding at paragraph [81] of the decision that it would be just and equitable to make the determination, because the additional expense of child support would not cause the Appellant hardship, given the financial resources made available to him by his mother. The submission is that the Tribunal was directing its comments to the question of whether the determination would cause hardship to the Appellant and not for any wider purpose.
Further, the Registrar submits that the Tribunal was not expecting the Appellant to borrow money to meet his child support liability but to meet the child support payments through his earning capacity.
The Registrar submits that the Appellant’s challenges to the Tribunal’s determination that s.117(7B) was satisfied are directed to the merits of the decision. Merits review is impermissible. This does not give rise to an error of law (see Minister for Immigration and Citizenship v SZJSS[55] at [33]-[37]).
[55] [2010] HCA 48; (2010) 243 CLR 164
The Registrar submits that the Appellant’s submission that an error of law by the Tribunal is demonstrative of bias is misconceived.
The Registrar also submits that the Appellant’s contention that the Tribunal fell into error by not taking the Second Respondent’s various government benefits (or his own) into account is not an error of law. Under s.117(7A)(b) of the Assessment Act, an entitlement to an income tested pension, allowance or benefit is not to be taken into account in having regard to the income of a parent of the child concerned.
The Registrar submits that the Appeal should be dismissed with costs, fixed in the sum of $6,240.00.
Submissions on behalf of the Second Respondent
The Second submits that the Social Security Appeals Tribunal decision does not contain an error of law that would attract the jurisdiction of the Court and that the Appeal should consequently be dismissed.
In her Submissions on behalf of the Second Respondent, Ms Cole, solicitor, addresses the Appellant’s various grounds of Appeal in groups:
a)Grounds of Appeal 1,2,9,10,11,14;
b)Grounds of Appeal 3,4,6,7,12,13;
c)Grounds of Appeal: 8;
d)Grounds of Appeal: 5,15; and
e)Grounds of Appeal: 16.
As to the first group, Ms Cole submits that Grounds 1 and 2 refer to a general failure to provide procedural fairness and a denial of natural justice, which appear to be particularised in Grounds 9, 10, 11 and 14. She submits that, when the Appellant was offered time at the hearing on 18th July 2012 to inspect documents provided by the Second Respondent, he declined that opportunity and insisted upon an adjournment to another day. Ms Cole points out that the Tribunal did in fact list the proceedings for hearing on a further day.
It is submitted on behalf of the Second Respondent that the Appellant was not denied procedural fairness by being refused an adjournment.
The Second Respondent does not concede that the Appellant was denied natural justice by being denied the opportunity to call medical evidence. He was directed to produce evidence upon which he sought to rely by 15th June 2013 but does not appear to have done so. He was given a further opportunity to provide evidence on 3rd August. The Appellant did in fact submit further medical evidence on 20th August 2012, which was taken into account.
Ms Cole noted the Appellant’s complaint at paragraph [55] of is Submissions that:
The SSAT refused to allow any comments to be made by the applicant’s mother in regard to the medical evidence; however permitted the Second Respondent to make comments (see Transcript of hearing 3 September 2012, page 70).
As Ms Cole points out, the Second Respondent was a party to the proceedings who was self-represented:
It is fundamental that she would have the right to question medical evidence or make comments on it. This does not mean she purported to be an expert or that the Tribunal took her comments as expert opinion.[56]
[56] Second Respondent’s Submissions at [15]
It is the Second Respondent’s submission that the Appellant was not denied procedural fairness or natural justice.
Ms Cole submitted that Grounds of appeal 3, 4, 6, 7, 12 and 13 can be grouped together in that they refer variously to the Tribunal’s decision being irrational, illogical, containing errors of fact or conclusions not open to it on the evidence, findings of fact not based on evidence or not open to the Tribunal. She referred to the decision of the High Court in Minister for Immigration and Citizenship v SZMDS[57], relied on by the Appellant, which does not, in her submission, support the Appellant’s argument.
[57] supra
It was submitted that it was open to the Tribunal to find that it did not accept the Appellant’s evidence that he had continued to work full time in his business, based on the evidence given to the Tribunal. It was further submitted that there was ample evidence before the Tribunal to support the view that the Appellant had not satisfied the Tribunal that it was not a major purpose of the decisions about his change of occupation and work patterns to affect the child support assessment.
As to Ground of appeal 8, relating to the Appellant’s claim that the Tribunal erred in taking into account the Appellant’s mother’s income, earning capacity and financial resources, it is submitted that these circumstances were relevant as the Appellant had put them into evidence. The Tribunal took into consideration the support that the Appellant’s mother was providing when considering the factors under subsections 117(4) and (5). The Second Respondent submits that this was a relevant and appropriate matter for the Tribunal to consider.
Grounds of Appeal 5 and 15 refer to the adequacy of reasons given by the Tribunal. Ms Cole submitted that the Tribunal had some difficulty ascertaining the Appellant’s earning capacity:
In our submission the Applicant contributed to this difficulty by adopting an antagonistic position with the Tribunal, and through a lack of clarity about his actual day to day activities and financial position.[58]
[58] Second Respondent’s Submissions at [24]
The Second Respondent also noted:
At the conclusion of the first hearing the Applicant indicated his intention to appeal regardless of the outcome.[59]
[59] Ibid at [8]
It is not conceded by the Second Respondent that the Tribunal failed to provide adequate reasons.
The Second Respondent in her submissions addressed the Appellant’s Ground 16, the claim by the Appellant that the Tribunal erred by failing to include parenting payments made to her that are legally required to be considered income, although:
He does not suggest that his own entitlement to Family Tax Benefit should be taken into account in the same way.[60]
[60] Ibid at [26]
Section 43 of the Child Support (Assessment) Act defines adjusted taxable income for child support purposes. Family Tax Benefit and the supplementary components, such as rent assistance, do not constitute taxable income (see Income Tax Assessment Act 1997, ss.52.15, 52.150). These payments are not captured by s.56 of the Assessment Act.
The Second Respondent submits that there is no basis for the assertion that the Tribunal was in error in this regard.
Conclusions
The Appellant has raised 16 grounds of appeal in his Amended Notice of Appeal filed on 27th November 2012. He has raised a further complaint, of apprehended bias, in his written submissions.
The grounds of appeal are not particularised and are repetitive. This has made it more difficult for the Court to deal with the Appellant’s arguments and for the Respondents to answer the case brought by the Appellant.
The difficulty has been compounded by the Appellant’s written submissions, apparently prepared for him by counsel[61], which are prolix and unfocussed. In order to address a particular ground, the Court, and the Respondents, must travel through the document consisting of some 117 paragraphs over 49 pages.
[61] Who has not put his or her name to the submissions
In my view, the lack of particularity of certain grounds renders them unable to be met. It will not do for an Appellant to make a bald statement alleging error on the part of the Tribunal and expect the Court to trawl through a lengthy submission in the hope that a particular part of the submission meets the ground alleged.
Grounds 1 to 7 of the Amended Notice of Appeal all fall into this category, in my view. They are as follows:
1. Whether the Tribunal failed to accord the Applicant procedural fairness.
2. Whether the Tribunal denied the Applicant natural justice.
3. Whether the Tribunal’s decision was irrational.
4. Whether the Tribunal’s decision was illogical.
5. Whether the Tribunal failed to provide adequate reasons.
6. Whether the Tribunal made significant errors of fact or conclusions that were not open to be made on the evidence and or made findings of fact or conclusions that were not based on evidence.
7. Whether the Tribunal had regard to or considered erroneous or irrelevant matters.
These seven grounds are phrased in such wide terms as to be meaningless without particulars. Without more, they cannot establish an error of law on the part of the Tribunal.
In the recent decision of CZBB & CZBC v Minister for Immigration & Anor[62], Judge Neville dealt with a similarly wide ground, saying at [14]:
In relation to ground (iii), it too is framed in so wide and general a manner as to require the Court to ‘fill in the gaps’, so to speak, to give substance to it. In such circumstances, I do not propose addressing this ground.[63]
[62] [2013] FCCA 310
[63] Ibid at [14]
An appeal lies to this Court from a decision of the Social Security Appeals Tribunal on a question of law. Section 110B of the Child Support (Registration and Collection) Act 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 section is in similar terms to s.44(1) of the Administrative Appeals Tribunal Act 1975 (Cth), which provides:
A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.
That section has been considered in a number of decisions.
The question of law should be stated with precision, because it is the question of law that enlivens the jurisdiction (Commissioner of Taxation v Crown Insurance Services Ltd[64] at [13]; see also Birdseye v Australian Securities and Investment Commission[65] at [18]).
[64] supra
[65] supra
The Appellant’s Ground 8 provides:
Whether the Tribunal erred in law regarding the income, earning capacity, property and financial resources of the Applicant’s mother, Mrs P.
In my view, this ground does not state a question of law.
In Birdseye[66], the Full Court of the Federal Court referred with approval to the decision of Ryan J in Australian Telecommunications Corporation v Lambroglou[67], saying at [14]-[16]:
14.His Honour went on at 524 to indicate his view that merely to assert that the Tribunal had erred in law in making a particular finding was not to state a question of law.
[66] supra
[67] (1990) 12 AAR 515
15. Further, his Honour at 527 expressed the view that:
‘…it simply begs the question of law to commence it with the words “Whether the Tribunal erred in law”. If the question, properly analysed, is not a question of law no amount of formulary “erred in law” or “was open as a matter of law” can make it into a question of law.’
16.We express our respectful agreement with the above observations…[68]
[68] [2003] FCAFC 232 at [14]-[16] per Branson, Marshall and Stone JJ
As the above ground does not state a question of law, it need not be considered further.
Grounds 9 and 10 of the Appeal should, in my view, be considered together. They assert:
9.The Applicant is dyslexic. At the hearing the Second Respondent was permitted to adduce and rely on evidence that was served on the Applicant at the hearing. By reason of the Applicant’s disability the Applicant was at a disadvantage and not able to properly consider the evidence, test the evidence and or provide evidence in reply.
10.The hearing should have been adjourned to a further date to ensure that the proceedings were conducted in a procedural[69] fair manner and to allow the Applicant to properly consider the evidence, test the evidence and or provide evidence in reply and take advice.
[69] sic
Properly analysed, those two grounds are more appropriately particulars of the one ground, which is an allegation that the Tribunal failed to accord procedural fairness by refusing the Appellant an adjournment.
The Appellant’s case is that, when he attended the Tribunal hearing on 18th July 2012, he received for the first time copies of the Second Respondent’s credit card statements, which were relevant to her expenditure, and consequently her income or financial resources. He submits that, because of his learning disability (he is dyslexic), he “did not feel confident (or competent) in his ability to conduct the hearing that day without having proper time to consider the material. The Applicant sought an adjournment, which was refused.[70]
[70] Appellant’s submissions at [36]
The Appellant submits that the hearing should have been adjourned to a further date to ensure that the proceedings were conducted in a procedurally fair manner.
The proceedings did go over to another date, 3 September 2012. As the Appellant states in his submission:
…a further hearing was conducted on that day.[71]
[71] Ibid at [45]
However, the Appellant submitted that on the next occasion:
The Applicant was not given the opportunity to raise any further issues regarding the Second Respondent’s credit card statements. The further hearing date was directed towards the Applicant’s business affairs, as was the direction to the Applicant to produce further documents.[72]
[72] Appellant’s submissions at [45]
The Second Respondent submits that on 18th July the Appellant in fact acknowledged that he had in fact received the letter dated 10th July 2012 enclosing the documents and appeared to accept responsibility for the oversight.[73]
[73] Second Respondent’s Submissions at [8]
My reading of the Transcript of the Tribunal hearing does not lead me to the view that that is in fact the case. On Page 6 of the Transcript at line 47, Ms C, one of the Tribunal members asked the Appellant:
Did you get….
And the Appellant said:
No, I didn’t.
Then follows this exchange, to which the Second Respondent refers in her Submission:
MS MORGAN: You got B80---
MR PENMAN: I apologise. I mean the reason I’m worked up is that obviously there is a problem my end. I apologise but---[74]
[74] Transcript page 7 lines 5-8
This exchange may have the meaning submitted by the Second Respondent, but it is far from clear. What is clear is that the Appellant went on to say:
Sorry, I’m processing – I still feel unfairly treated by not having this in preparation for this morning’s hearing. There’s nothing that we can do about that at this point in time other than I would lodge my concerns and I do believe procedural fairness is not being provided.[75]
[75] Transcript page 7 lines 17-20
These words hardly sound as if the Appellant was apologising for an oversight or an error on his part.
What did happen is that the Appellant then went on to say:
Reading through the documents is not the issue. What I find in the information might change how I present all the things that I have presented. I have gained legal insight into the legislation without this information and this could be pertinent, it might not, I don’t know. But without the benefit of having that legal advice how am I who is uneducated in the legislation really able to present a clear, concise, fair representation of the situation?[76]
[76] Transcript page 7 lines 31-36
Mr R, a Tribunal member, then offered the Appellant “10 minutes to have a proper look through those documents …there’s not very much.”[77]
[77] Ibid lines 41-42
The Appellant conceded that he did not know what was in the documents and said:
Taking 10 minutes out of a hearing that started not on time either. I don’t see that as beneficial to anyone unless you will grant an extension of time at the end of it.
So let’s move on because you’re not going to – sorry, sorry, sorry.[78]
[78] Transcript page 8 lines 11-18
Mr R said to him:
I have offered you an opportunity to look at those documents. I take it from what you’ve just said to me you don’t wish to have that opportunity.
MR PENMAN: I don’t think I will be able to facilitate that without legal representation.
MR R: All right.
MS C: Why don’t you have a look at the documents, Mr Penman, and if after the 10 minutes you can give us a reason why you need time perhaps the Tribunal---
MR PENMAN: All right. It’s a document – in fact I have a learning disability. Okay. So, thanks but no thanks. I’m not going to be able to interpret this without help….
MS C: So what learning disability do you have?
MR PENMAN: I’m dyslexic and have problems reading….[79]
[79] Transcript page 8 lines 21-40
What the transcript shows is that the Appellant was offered ten minutes to read the documents, which he declined. He was offered an opportunity for more time if necessary, which he also declined. He said that he had problems reading. He also said that he wanted to obtain legal advice about documents which he had not read and refused to take the opportunity to read.
The Appellant knew that he was dyslexic. He knew, or must surely have known, that he would be attending a hearing that involved documents. However, he did not arrange for someone to attend the hearing with him to assist him with reading. If the Appellant felt that he might need legal advice about documents produced by the Second Respondent, he might well have considered arranging for a lawyer to be present at the hearing.
The Tribunal did provide a further hearing day, on 3rd September 2012. The Appellant had sufficient time to prepare statutory declarations for his parents, which were provided to the Tribunal on 29th August.
A reading of the Transcript of the hearing on 3rd September gives no indication that the Appellant ever asked the Tribunal to be able to comment on the documents from 18 July, let alone is there anything to support his assertion that he was not given the opportunity to raise any further issues about the Second Respondent’s credit card statements.
There are two traditional rules of natural justice, or procedural fairness,[80] the hearing rule and the bias rule. Aronson and Groves, in the text Judicial Review of Administrative Action[81], describe the hearing rule:
The hearing rule, given the Latin name “audi alteram partem”, or hear the other side, requires a decision maker to hear a person before making a decision affecting the interests of that person.[82]
[80] The terms are often used interchangeably
[81] Fifth Edition, Lawbook Co., Sydney
[82] Aronson & Groves at 399
The Appellant has not shown that he was denied that right. He was offered a short adjournment on 18th July, which he declined. The proceedings were in fact listed for further hearing on 3rd September, which he again attended. The Appellant had the opportunity to make oral or written submissions to the Tribunal about the documents in issue, as is his right under s.103C(1) of the Registration and Collection Act. He chose not do so.
The Appellant has not demonstrated that he was denied procedural fairness by being refused an adjournment of the hearing. The combined Ground 9/10 has not been made out.
Ground 11 states:
The Applicant was denied natural justice in the presentation of his case and the ability to properly call medical evidence.
The Appellant’s complaint is that the Tribunal failed to allow him an extension of time to obtain and provide further or additional medical evidence about his capacity for work. He had given evidence at the hearing on 18th July that he had three crushed vertebrae in his neck from a [omitted] injury and had provided medical evidence to that effect.
The Appellant forwarded a report from a Dr H dated 17th August 2012 in respect of an MRI scan and a report from Dr M dated 19th August 2012. He had sought an extension of time on 14th August to obtain and submit a medical report from a specialist to whom he had referred.
The Appellant’s letter seeking an extension of time to supply further medical evidence said, relevantly:
Before my doctor will provide legal evidence in this case he wishes to get further consultation and opinions. This will take some weeks, if the Tribunal is questioning the legitimacy of my neck injury I would request that they provide me the time to provide formal medical opinion. I am sure the tribunal understand the cost involved when dealing with doctors and the long delays and waiting periods for patients using Medicare.
I would be willing to submit to a medical examination at the SSAT expense and a doctor of the SSAT choosing.
However, the Tribunal wrote to him on 16th August, denying that request.
The Tribunal’s letter said:
The Presiding Member has also refused to grant you an extension of time to provide additional medical evidence. However, it is open to discuss any additional medical information during the reconvened hearing of your application.
The Appellant submitted that, his capacity for work having been raised, the Tribunal should have allowed reasonable time to obtain further medical evidence.
Despite the Tribunal’s refusal to allow an extension of time, the Appellant submitted further evidence dated 17th and 19th August. Notwithstanding its refusal to allow an extension of time, the Tribunal took that evidence into consideration.[83]
[83] Tribunal Reasons for Decision at [75]
It was the Appellant who had raised the issue of his medical condition which led to his claim of incapacity to undertake work as an [omitted]. The Transcript of the hearing shows a discussion of the medical issues at pages 83 to 89. What he wanted to do after the hearing of 18th July was to obtain medical evidence that did not already exist. The reason why he wished to obtain additional evidence is made clear in his letter to the Tribunal of 19th August 2012, where he sought an extension to provide detailed medical evidence of his neck injury:
The tribunal members made comment during the last hearing that my neck injury was minor and would have no bearing on my ability to undertake a career change.
It appears that the Appellant formed the impression that the evidence he had provided was not sufficient and he wanted the opportunity to get more evidence. Such a process could continue indefinitely. The Appellant did provide further evidence, which was considered by the Tribunal, even though it was submitted after the time when the Tribunal had refused to grant an extension of time.
The Appellant has not shown that he was denied natural justice in not being allowed further time to obtain more evidence which was not then in existence.
Ground 11 of the Amended Notice of Appeal has not been made out.
Ground 12 of the Amended Notice of Appeal states:
The Tribunal had regard to irrelevant matters and gave weight to irrelevant matters which were compounded by the denial of natural justice and or procedural fairness in that the Applicant was unable to properly consider the evidence, test the evidence and or provide evidence in reply.
This ground is confused in its wording and, with respect, it is hard to understand exactly what the Appellant means. To some extent, it appears to be a repetition of the matters raised in the Appellant’s earlier grounds 7, 8, 9, 10 and 11. The Court has already dealt with those grounds. If the Appellant is referring to something else, it should have been particularised. An Appellant who claims that there has been an error of law must state what that error is and not expect the Court to trawl through a lengthy submission in the hope of finding something that might fit with the Appellant’s claim.
Ground 12 of the Amended Notice of Appeal has not been made out.
The Appellant’s Ground 13 claims that:
The Tribunal made findings and findings of fact that were not reasonably open on the evidence.
It is an error of law to find ultimate facts for which there is no evidence. As the High Court said in Kostas v HIA Insurance services Pty Ltd[84]:
90.It is sufficient, for present purposes, to determine that the ground usually described as a “no evidence ground” raises a question of law…
91.…Whether there was no evidence to support a factual finding is a question of law, not a question of fact.[85]
[84] [2010] HCA 32; (2010) 241 CLR 390
[85] Ibid at [90]-[91] per Hayne, Heydon, Crennan and Kiefel JJ
It can certainly be said that the Appellant’s ground raises a question of law, even though it is not particularised. In his submissions, the Appellant states that any findings of the SSAT must be based on evidence, or reasonable inferences that may be drawn from the evidence.[86] However, his submission then goes on to complain that the Tribunal should have given him an opportunity to explain why the Child Support Agency had recorded an income estimate of zero against him, and submits that this failure by the Tribunal was a failure to accord him procedural fairness. He then proceeds to submit that:
The finding that the applicant had a “nil” income was not open to the Tribunal. The Decision by the SSAT fails to have regard or consider, without explanation, numerous pieces of evidence has lead[87] to an erroneous finding of such magnitude that it goes the very jurisdiction which it purports to exercise rendering its decision perverse or unreasonable or otherwise offending logic as and as such has committed an error of law.[88]
[86] Appellant’s Submissions at [19]
[87] sic
[88] Appellant’s Submissions at [19]
The submission is misconceived, as it begins with an exposition of the “no evidence” ground, clearly an error of law, and proceeds to discuss illogicality or irrationality, upon which he expands in some detail in the next paragraph.
However, the Appellant returns to his original “no evidence” ground in paragraph [21] , claiming that the Tribunal erred in having regard to his previous income as an [omitted] prior to 2007. He then goes on to submit:
The allegation by the Second Respondent that the Applicant was earning “substantial income as a [omitted] after the commencement of the [business]” was not substantiated or borne out by the evidence. The SSAT in accepting this allegation as fact has fallen into error as it is not based on evidence and is unsubstantiated.[89]
[89] Ibid at [21]
The submission appears to be based on a misreading of the Tribunal Decision.
First, the Tribunal did not make a finding that the Appellant had a “nil” income. What the Tribunal said was:
When Mr Penman made his original departure application, the administrative assessment of child support was based on Ms Morgan’s income of $20,775 and Mr Penman’s estimated income of nil.[90]
[90] Tribunal Reasons for Decision at [69]
This was not a finding of fact by the Tribunal at all, merely a statement of what it understood to be the history of the matter.
Second, the Tribunal did not, as the Appellant claims, have regard only to his earnings as an [omitted] and, by inference, disregard his earnings in his more recent pursuit of operating the [business]. At paragraph [66] of its decision, the Tribunal said:
Mr Penman’s annual income from the [omitted] business was around $20,000 but the Tribunal considers that the financial resources also available to him from the business were substantial. For example, Ms Morgan told the Tribunal that the business was paying for their home and electricity.
Third, the Tribunal did not accept the Second Respondent’s allegation that “he continued to earn a substantial income from that source[91] after the business commenced”.[92] The Tribunal rejected that contention, saying in that same paragraph:
This is not reflected in the documentary evidence provided by Mr Penman.[93]
[91] i.e. his work as an [omitted]
[92] Tribunal Reasons for Decision at [65]
[93] Ibid
The Appellant has not made out his ground that the Tribunal made findings and findings of fact that were not reasonably open on the evidence.
Consequently, Ground 13 of the Amended Notice of Appeal fails.
Ground 14 of the Amended Notice of Appeal states:
The Tribunal failed to give proper weight or consideration to the fact that the Applicant’s medical condition impacts the earning capacity.
The very wording of the ground indicates that the Appellant is seeking to embark on merits review, which is impermissible.
It is well established that judicial review of administrative decisions does not extend to a review of the factual merits of the case.
In Attorney-General (NSW) v Quin[94], Brennan J said:
The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.[95]
[94] (1990) 170 CLR 1
[95] Ibid at 36
In Minister for Immigration and Ethnic Affairs v Wu Shan Liang[96] the High Court said:
In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.[97]
[96] (1996) 185 CLR 259
[97] Ibid at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ
This principle has again been affirmed by the High Court in Minister for Immigration and Multicultural Affairs v Yusuf[98], where McHugh, Gummow and Hayne JJ said at 348(74):
What is important, however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law. They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts.
[98] [2001] HCA 30; (2001) 206 CLR 323
A ground, such as this one, that complains that an administrative decision-maker failed to give “proper weight or consideration” is asking the Court to embark on a review of the merits of the decision. As long as there is evidence about a particular fact or set of facts, the weight to be given to that evidence is purely a matter for the administrative tribunal.
Consequently, this ground of appeal fails.
Ground 15 of the Amended Notice of Appeal states that:
The Tribunal failed to give adequate reasons or set out the reasoning process for the findings of fact and decision.
Whilst it is generally desirable for administrative decision-makers to give reasons for their decisions, it is doubtful whether a failure to provide reasons for a decision establishes a breach of procedural fairness or some other ground of review.[99] It was held in Public Service Board of NSW v Osmond[100]:
There is no general rule of the common law, or principle of natural justice, that requires reasons to be given for administrative decisions, even decisions which have been made in the exercise of a statutory discretion and which may adversely affect the interests, or defeat the legitimate or reasonable expectations, of other persons.[101]
[99] Aronson & Groves, op.cit. 594-595.
[100] (1986) 159 CLR 656
[101] Ibid at 662 per Gibbs CJ, Wilson, Brennan, Deane and Dawson agreeing
The Tribunal is required by s.103X(3) of the Registration and Collection Act to give reasons for the decision within 14 days. Paragraph (3)(b) requires the Tribunal to:
(b)give to each party a written notice (whether or not as part of the notice under paragraph (1)(a)) that:
(i) sets out the reasons for the decision; and
(ii)sets out the findings on any material questions of fact; and
(iii)refers to evidence on which the findings of fact are based.
Quite clearly, the Tribunal provided written reasons within the time specified in s.103X. The only failure under s.103X would be if the Tribunal’s reasons either:
a)failed to set out the Tribunal’s findings on any material questions of fact; or
b)failed to refer to the evidence on which the findings of fact were based.
The only real challenge to the adequacy of the Tribunal’s reasons appears to be based on the Tribunal’s finding at paragraph [67] that the Appellant’s earning capacity was greater than nil, based on the matters referred to in the preceding two paragraphs. Having established that finding, the Tribunal then proceeded to regard the Appellant as having an earning capacity of at least the annualised male average total weekly earnings.
The Tribunal has, in my view, provided reasons for its finding on a material question of fact and referred to the evidence, such as it is, on which that finding of fact is based. The Appellant may disagree with the finding, but the argument then strays in to the area of merits review.
The other flaw in the Appellant’s submission is that a failure to provide adequate reasons is not a jurisdictional error which would lead to the decision being found to be invalid. The Registrar submits that if there were such a finding, sufficient to constitute non-compliance with s.103X(3)(b), the proper relief would be an order remitting the matter to the Tribunal for the preparation of adequate reasons. It would only be in a case where the Tribunal had been order to provide reasons but was no longer in a position to do so, as in Civil Aviation Safety Authority v Central Aviation Pty Ltd[102], that the decision can be set aside. The Full Court of the Federal Court held that, in the particular circumstances of that case:
42. In circumstances such as the present, where it is common ground that there is a statutory entitlement to reasons and where such reasons have not been provided and cannot now be provided by the Tribunal member who made the decision, it is inevitable that the decision itself must be set aside.[103]
[102] [2009] FCAFC 137; (2009) 179 FCR 554
[103] [2009] FCAFC 137 at [42] per Bennett, Flick and McKerracher JJ
In the case under review, however, I am not satisfied that there has been a failure by the Tribunal to give adequate reasons or to set out the reasoning process for its findings of fact and decision.
Consequently, Ground 15 of the Amended Notice of Appeal has not been made out.
Ground 16 of the Amended Notice of Appeal states:
The Tribunal failed to include parenting payments made to Ms Morgan that are legally to (be) considered income for the purpose of Child maintenance calculations.
The Appellant claims at paragraph [116] of his submission:
The Second Respondent reports receiving numerous government payments, based on the evidence they are: Parenting Payment Single, Pharmaceutical Allowance, Pension Basic Supplement, Family Tax Benefit Part A, Family Tax Benefit Part B, Large Family Supplement and Rent Assistance are not income tested. The value of rental assistance payments have not been quantified but would add to the Second Respondent’s overall income. The omission by the SSAT to include and or consider these payments is an error of law.
In my view, this submission is not correct for several reasons. First, an omission of certain payments when calculating a person’s income is not an error of law at all; it is an error of fact.
Second, the Child Support Registrar refers correctly, to s.117(7A)(b)(ii) of the Assessment Act, which provides that:
(ii)any entitlement of the child or carer entitled to child support to an income tested pension, allowance or benefit
is to be disregarded when having regard to the income, property and financial resources of a parent of the child.
The Second Respondent’s solicitor approaches the matter a different way, relying on s.43 of the Assessment Act, to submit that the payments referred to do not constitute taxable income under ss.52.15 and 52.150 of the Income Tax Assessment Act 1997. Thus, they are not caught by s.56 of the Assessment Act, nor are they tax free pensions or benefits that would ordinarily be added back to form a parent’s adjusted child support income.
Either way, the ground has not been made out.
The Appellant has also asserted in his submissions that the Tribunal was guilty of apprehended bias, relying on Laws v Australian Broadcasting Tribunal[104]. The Appellant in his submission mis-cites the reference to the decision of Gaudron and McHugh JJ as “170 CLR 70 at 5”. The paragraph referred to can be found at page 100:
When suspected prejudgment of an issue is relied upon to ground the disqualification of a decision-maker, what must be firmly established is a reasonable fear that the decision-maker’s mind is so prejudiced in favour of a conclusion already formed that eh or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her.
[104] supra
The allegations of bias are based on the following propositions, set out in paragraphs [53] and [112-113] of the Appellant’s Submissions.
The first allegation of bias asserts:
Paragraph [18] of the decision clearly show(s) that the Tribunal had formed the view that the applicant would be able to provided(d) medical evidence in relation to his capacity work[105] after the first hearing of 18 July 2012.
[105] sic
Paragraph [18] of the Tribunal decision is quoted in full:
Mr Penman also requested “an extension on providing further medical evidence”. The presiding member inferred from this request, and the medical evidence that Mr Penman had provided, that he currently had no other medical evidence in relation to his capacity to work. The Presiding Member considered that medical evidence which did not yet exist would not assist it to review the decision made on 28 March 2012 and declined to extend the time for Mr Penman to provide additional medical evidence.
The circumstances of the Appellant’s request to the Tribunal have already been considered at paragraphs [145] to [156] of this decision. The Appellant’s claim of bias on the part of the Tribunal misrepresents the facts, by omitting to mention to that the Appellant did submit further medical evidence, which the Tribunal took into consideration in paragraph [75] of its reasons for decision[106].
[106] See at [152] above
This claim of bias on the part of the Tribunal has not been made out.
The second claim of bias appears at paragraphs [112] and [113] of the Appellant’s Submissions. The Appellant claims at [112] that the Tribunal’s reasoning deviated from the ordinary determination process;
in that they have used the finding that the appellant’s earning capacity to determine[107]’special circumstances’. It is the applicant(‘s) submission that highlights bias on behaviour of the SSAT.
[107] sic
This submission, referring as it does to a claim of error in the method of determining special circumstances, as indicative of bias is misconceived. It does not, and cannot, show an apprehension of bias on the part of the Tribunal as set out in the decision in Laws v Australian Broadcasting Tribunal upon which the Appellant relies. It is a submission entirely without merit.
Allegations of bias or bad faith are serious matters, alleging as they do personal fault on the part of the decision-maker. They must not be lightly made and should be clearly alleged and proved[108]. The Appellant’s assertions of bias, not forming part of a ground of appeal but merely given in a written submission, fall short of the standard required.
[108] SBBS v Minister for Immigration & Multicultural Affairs [2002] FCAFC 361 at [43]-[44]
The allegations of bias have not been made out.
It follows that the Appeal must fail. The decision of the Social Security Appeals Tribunal will be affirmed, under the provisions of s.110F(2) of the Registration and Collection Act.
Costs
The Child Support Registrar seeks an order for costs fixed in the sum of $6,240.00 on the dismissal of the Appeal. Costs do not follow the event in matters under the Child Support (Registration and Collection) Act. Section 105 of the Act provides that the Family Law Act 1975 (Cth) and the related Federal Circuit Court Rules 2001 apply.
The question of costs must be considered under s.117 of the Family Law Act. This means that the Court may make such order as to costs as it considers just (s.117(2)). In doing so, the Court shall have regard to the matters set out in s.117(2A) of the Act, including the financial circumstances of the parties, whether any party is in receipt of assistance by way of legal aid, the conduct of the parties to the proceedings, whether any party has been wholly unsuccessful in the proceedings and other matters.
Any party wishing to pursue an order for costs may do so by way of a written submission accompanied by an affidavit setting out the way the amount of costs is quantified. The submission and affidavit must be filed and served within seven days. Any submission or affidavit in reply must be filed and served within a further period of seven days.
I certify that the preceding two hundred and eight (208) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 11 June 2013
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