Podmore & Pillai
[2011] FMCAfam 952
•26 September 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PODMORE & PILLAI (SSAT APPEAL) | [2011] FMCAfam 952 |
| CHILD SUPPORT – Appeal from decision of SSAT – error of law – jurisdictional error – factual issue concerning income, property and financial resources of liable parent – question of fact for the SSAT – no error of law established – appeal dismissed. |
| Child Support (Registration and Collection) Act 1988, ss.88, 103N, 103G, 103T, 110B, 110E, 110F, 110G, 120 Child Support (Assessment) Act 1989, s.161 |
| Repatriation Commission v Owens (1996) 70ALJR 904 Neal v Secretary, Department of Transport (1980) 3 ALD 97 Comcare v Etheridge [2006] FCAFC 27 Blackwood Hodge (Australia) Pty Ltd v Collector of Customs (No.2) (1980) 33 ALD 38 Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 Apthorpe v Repatriation Commission (1987) 13 ALD 656 Re Minister for Immigration & Multicultural Affairs: Ex Parte Applicant S20/2002 (2003) 198ALR 59 Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprise Pty Ltd [1993] 43 FCR 280 LDME & JMA [2007] FMCAfam 712 Aronson & Dyer: Judicial Review of Administrative Action (2nd Edition) 2000 LBC Information Services PJ & Child Support Registrar (SSAT) Appeal [2007] FMCAfam 829 Comcare v Moon [2003] FCA 569 Craig v South Australia (1995) 184 CLR 163 Re Refugee Review Tribunal; Ex parte Aala (2001) 204 CLR 82 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 |
| Applicant: | MS PODMORE |
| Respondent: | MR PILLAI |
| File Number: | ADC 3191 of 2010 |
| Judgment of: | Brown FM |
| Hearing date: | 6 June 2011 |
| Date of Last Submission: | 6 June 2011 |
| Delivered at: | Adelaide |
| Delivered on: | 26 September 2011 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the Respondent: | Mr Swifte |
| Solicitors for the Respondent: | Andrew Swifte & Co |
ORDERS
The notice of appeal filed on 19 August 2010 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Podmore & Pillai (SSAT Appeal) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 3191 of 2010
| MS PODMORE |
Applicant
And
| MR PILLAI |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an appeal from a decision of the Social Securities Appeal Tribunal “the SSAT” dated 20 July 2010. Pursuant to section 110B of the Child Support (Registration & Collection) Act 1988 “the Collection Act” the only ground on which such an appeal can be based is an error arising from a question of law.
Ms Podmore “the appellant” and Mr Pillai “the respondent” are the parents of [X] born [in] 1994. The appellant has primary care of [X]. The respondent has been assessed administratively to pay child support to Ms Podmore for [X].
The appellant’s position is that assessments of child support made in respect of periods from November 2008 onwards do not properly reflect Mr Pillai’s income, earning capacity, property and financial resources.
The respondent is a [occupation omitted]. He derives income through self employment as a result of operating a business in partnership with his current wife. The business is known as [P]. In addition, he has received income arising from direct employment by another [omitted] firm, [C].
Mr Pillai also owns some investment properties, which are rented out but due to the amounts owed in respect of mortgages secured against them are “negatively geared”, producing a loss, when the expenses relating to these properties are reconciled with the expenses arising from them.
Mr Pillai’s position is that his child support income is a figure in the vicinity of $50,000.00 per annum. This figure has been accepted by both the Child Support Agency “the CSA” and the SSAT.
Ms Podmore’s position is that this is an erroneous figure and one of around $150,000.00 per annum should be utilised as Mr Pillai’s child support income.
This was the issue which was before the CSA and the SSAT. The evidentiary issue being what was the respondent’s fair level of income, given what the SSAT characterised as “the unusual and complicated financial arrangements used by Mr Pillai …”[1]
[1] See SSAT Reasons for Decision dated 20 July 2010 at paragraph 54
Background
From 1 November 2008 to 14 June 2009, Mr Pillai was assessed to pay an annual rate of child support of $7,500.93 per annum. This rate was based on an adjusted taxable income of $49,647.00 for Mr Pillai and an adjusted taxable income of $7,167.00 for Ms Podmore. Both incomes were derived from the parties’ respective 2007/2008 tax returns.
From 15 June 2009 to 31 August 2009, Mr Pillai was assessed to pay an annual rate of child support of $6,404.00 per annum. This rate was based on the same income information outlined above but the rate was reduced because Mr Pillai assumed responsibility for an additional dependant child from 15 June 2009 onwards.
On 22 July 2009, Ms Podmore applied to the CSA to increase the assessment on the basis that it did not properly reflect Mr Pillai’s income, property and financial resources or his earning capacity. This application was determined by Senior Case Officer H on 18 September 2009.
Between 1 September 2009 to 30 November 2010, Mr Pillai was provisionally assessed to pay an annual rate of child support of $6,385.00 per annum. This was based on a provisional adjusted taxable income of $52,129.00 for him and $3,930.00 for Ms Podmore.
On 2 November 2009, the CSA received information regarding the amount of income declared by Mr Pillai in his 2008/2009 income tax return. This resulted in a change in assessment from 1 September 2009 onwards, as Mr Pillai’s taxable income was less than his provisionally calculated amount.
As a result, from 1 September 2009 to 30 November 2010, Mr Pillai was assessed to pay an annual rate of child support of $5,012.00 per annum. This was based on a 2008/2009 adjusted taxable income of $45,063.00 for him. Ms Podmore’s adjusted taxable income remained the same.
a) SCO H’s decision of 18 September 2009
Before SCO H the appellant asserted that over the past nine years,
Mr Pillai had been able to create a property portfolio which had provided rental income not reflected in his child support income. She also suggested that Mr Pillai’s income from employment had not been reduced but was provided to him in another form not recorded in his income tax returns.
SCO H noted that Mr Pillai’s taxable income had reduced since 2007 from a level of $60,768.00 to $49,647.00. However, he accepted evidence provided by Mr Pillai’s employer that there had been a downturn in the [omitted] business and, as a result, Mr Pillai had been offered less overtime.
SCO H also accepted evidence which indicated that Mr Pillai paid more interest on the moneys owed on his investment properties than was received by him by way of rental income from them. As such, he was satisfied that the properties in question did not increase Mr Pillai’s financial capacity to provide support for [X].
At the time of the change of assessment hearing, before SCO H,
Mr Pillai indicated that he had obtained an Australian Business Number and was considering self employment as a contingency against his employment prospects worsening. However, as at September 2009, he had not as yet generated any income through self employment.
In his decision, arising from Ms Podmore’s change of assessment application, SCO H wrote as follows:
“In summary I consider Mr Pillai’s income from employment is properly reflected in the assessment and even though he is negatively gearing his investment properties, those losses are not reducing the financial support he is required to make for [X].”
b) The objection decision of Mr G dated 11 December 2009
Ms Podmore objected to SCO H’s decision. Her objection was determined by Objection Officer G on 11 December 2009.
The bases for the appellant’s objection were as follows:
·Mr Pillai lived in one of the properties which he had declared to be a rental property;
·Mr Pillai’s property losses indicated that he had access to greater income and financial resources;
·Mr Pillai was running his own business.
In response, Mr Pillai confirmed that he had moved into one of his rental properties but retained two others, which were still negatively geared. He also indicated that he was starting his own business, in partnership with his current wife. He described this business as “small” and indicated that he continued to work as a full-time employee for forty hours each week.
These assertions of fact, on Mr Pillai’s part, were supported by documents obtained by the CSA from the Lands Title Office and the Australian Taxation Office. In addition, the CSA obtained information from two financial institutions at which Mr Pillai maintained accounts. It was found that he had three mortgages; a savings account; a cash management account; and a business account.
From his analysis of bank statements relating to these accounts, Mr G was not satisfied that Mr Pillai was in receipt of any additional income that was not disclosed in his income tax returns or the two business activity statements, which had been lodged in respect of Mr Pillai’s business.
On the basis of the two business activity statements, Mr G found that the business concerned had outlayed more moneys than it had earned in the periods in question.
In respect of the issue of Mr Pillai’s rental property losses, Mr G wrote as follows:
“For child support purposes rental losses are added back to taxable income when calculating an adjustable taxable income to exclude the benefits of rental losses that are allowed for taxation purposes. Because a rental loss has the effect of first reducing a parent’s taxable income and then is added back on their taxable income for child support purposes, there is a nil effect against the parents’ income for child support.”
At the time of the objection hearing, Mr G found that Mr Pillai’s child support income was correctly based on an income of $45,063.00. This income was made up of wages of $48,668.00; interest of $477.00 and allowable deductions of $4,082.00. Mr G accepted that Mr Pillai had been working less overtime than in previous years, due to the economic downturn.
For these reasons, Mr G reached the following conclusions, on the evidence available to him:
“I am satisfied that that based on information Mr Pillai provided from his employer that his income will remain similar to the salary/wage he declared in his 2008/2009 income tax return. I also consider it is likely that Mr Pillai will continue to have similar work related deductions as he continued to work in the same occupation with the same employer.
With regards to Mr Pillai’s business, I can not be satisfied that Mr Pillai derives any substantial income or benefits from his business at this point in time. I have formed this opinion on the basis that it is difficult to draw any conclusions considering that Mr Pillai has a new business with a limited operating history available for examination.
I am satisfied that the ordinary formula assessment is not reduced for Mr Pillai’s rental property losses.”
Accordingly, Ms Podmore’s objection was disallowed. As a result, she appealed the decision to the SSAT.
c) The SSAT decision
The hearing of Ms Podmore’s application to the SSAT took place on 19 May 2010. I have been provided with a transcript of those proceedings. This hearing followed an earlier pre-hearing conference, at which directions had been made, particularly regarding the provision of financial documents by Mr Pillai to both Ms Podmore and the SSAT.
The level of compliance by Mr Pillai with those directions and what should follow as a matter of legal inference is a matter of considerable controversy between the parties. It is the appellant’s position that the SSAT should have drawn an inference adverse to Mr Pillai because of his allegedly inadequate level of financial disclosure.
The SSAT took oral evidence from both Ms Podmore and Mr Pillai. In addition, each party provided to the SSAT a sworn statement of their respective financial circumstances.
In addition, Mr Pillai provided the following documents to the SSAT:
·A compilation report, prepared by Mr Pillai’s accountants, for [P] between April 2008 and December 2009;
·Statement of income and expenditure for [P] between April 2008 to December 2009;
·BAS statement for 1 October 2009 to 31 December 2009;
·Mr Pillai Adelaide Bank statements between 4 December 2009 and 2 March 2010;
·Adelaide Bank Cash Management visa statements from 3 December 2009 to 2 March 2010;
·Bendigo Bank Business Solutions account statements between 7 December 2009 and February 2010;
·Payslips for Mr Pillai between February 2010 and March 2010;
·Statutory declaration dated 26 March 2010 of Ms P, the respondent’s mother, indicating a loan from her to the respondent of $81,650.00 made on 10 May 2002.
Besides these documents, the SSAT also had documents relating to
Mr Pillai’s financial circumstances, which had been provided to it by the CSA. These documents had also been supplied to Ms Podmore. They included earlier Adelaide Bank and Bendigo Bank statements, which had been obtained by the Registrar of the CSA pursuant to the powers conferred under section 161 of the Child Support (Assessment) Act 1989 “the Assessment Act”.
In addition, the CSA provided to the SSAT copies of Mr Pillai’s income tax returns and earlier BAS. Again, the Registrar of the CSA had directed that the Registrar of the Lands Title Registration Office provide documents relating to Mr Pillai’s real properties.
In its decision, the SSAT provided a summary of what it described as Mr Pillai’s relevant evidence. It found that Mr Pillai’s current employer could provide him with forty hours employment per week. Payslips provided by Mr Pillai indicated a gross salary of $880.00 per week.
Against this background, Mr Pillai had commenced a business, [P], in partnership with his wife. The business had no employees and
Mr Pillai’s wife did the necessary bookkeeping. The nature of the business was the provision of [omitted] services. Through contacts,
Mr Pillai obtained work which he did outside employment hours on weekends. His employer was aware of the nature of this business.
Mr Pillai deposed that he set up the business with a $60,000 loan from the Bendigo Bank. He anticipated that the business would become more successful in future but at present he had to borrow from a variety of sources to meet ongoing commitments.
In particular, Mr Pillai indicated that he used his wife’s credit card for business purchases, which were significant because of the costs of establishing the partnership. Mr Pillai also said that he had inter-mingled funds between his various bank accounts to meet prospective repayments as they fell due. He had borrowed moneys from his mother.
In its decision, the SSAT summarised Ms Podmore’s position in the proceedings as follows:
“In this case Ms Podmore has consistently argued that Mr Pillai’s income is greater than is used for the child support assessment. She has argued that Mr Pillai receives income from investment properties, that he minimises his income for taxation and child support purposes and that the volume and size of transactions in his bank account is indicative of a higher income than he has disclosed.”[2]
[2] See Reasons for Decision at paragraph 40
In its reasons, the SSAT asserted it had granted the applicant the opportunity to investigate Mr Pillai’s financial circumstances by way of some independent expert examination of the financial documents that had been provided. In particular, she was given leave to seek appropriate “legal or forensic accounting advice”. Ms Podmore had undertaken her own analysis of the financial documents provided by Mr Pillai, in a spreadsheet, which she had prepared. This spreadsheet was before the SSAT and was described as “Mr Pillai financial details for period 1 July 2009 to 28 February 2010.”[3]
[3] See SSAT Reasons for Decision at paragraph 14
On the basis of this analysis, Ms Podmore submitted that Mr Pillai’s real annual income was an amount of $169,931.16. In addition,
Ms Podmore expressed concerns that Mr Pillai’s bank statements did not match his BAS statements. She expressed doubt about the loans Mr Pillai stated he had taken from his parents. Overall, Ms Podmore expressed incredulity regarding Mr Pillai’s financial affairs.
The SSAT summarised Ms Podmore’s evidence regarding her analysis of Mr Pillai’s bank statements for the period July 2009 to February 2010 as follows:
“The Tribunal concurs that Mr Pillai’s financial arrangements are unusual and difficult to follow, however this alone does not establish that he has income, financial resources or property available for child support.
The submission fails to identify where extra income is being generated or transacted by Mr Pillai. What the submissions do highlight is that significant amounts of money are moved through the various accounts. Nevertheless, genuine concerns exist in respect of the generation of income by Mr Pillai in respect of both his investment properties and business.”[4]
[4] See Reasons for Decision at paragraph 42-43
Given these concerns, the SSAT conducted an analysis of the evidence before it regarding income which Mr Pillai had received from both his investment properties and business. These were the most significant evidentiary issues in the case.
The SSAT found that Mr Pillai owned three real properties, each subject to a loan secured by mortgage. In total, the properties were valued in the vicinity of $900,000 and were subject to mortgages of around $681,000. One of these properties had been Mr Pillai’s family home since December 2008 but had previously been rented.
The SSAT noted that the parties had disparate views about the amount of rent received from the properties but found the discrepancy to be small. Mr Pillai assessed the rent received to be $2,200 and the mortgage repayments to be $1,986 per month. Ms Podmore, from her analysis of Mr Pillai’s bank statements calculated rent received to be $2,337.50 per month.
The SSAT endorsed the methodology adopted by the CSA in the manner in which it approached deductions from income claimed by
Mr Pillai in respect of his rental properties. It disregarded deductions from Mr Pillai’s income and disregarded rental losses to arrive at a child support income of $45,063.00. It found as follows:
“In this case, the Tribunal is satisfied that based on the information before it, the approach used by the current formula assessment, (to disregard the rental losses) is appropriate.”[5]
[5] See Reasons for Decision at paragraph 48
In respect of Mr Pillai’s business income, the SSAT noted that he had “complied with the directions issued at pre-hearing conference in the provision of documents.” In particular, it was noted that the business records of [P] indicated that its business income was increasing to a stage at which “profits may begin to appear”.[6]
[6] See Reasons for Decision at paragraph 49
The SSAT also indicated that it had “particular regard” to evidence provided by Mr Pillai’s accountants regarding the current profitability of [P]. The accountants wrote as follows:
“Our client operates an [omitted] service and business under the name of [P] in partnership with his spouse. The business is gaining a good foothold in customers and ongoing business and is expected to be profitable in the current financial year.”
The Tribunal also accepted that Mr Pillai had borrowed a significant sum of money from his mother to establish his business. Accordingly, the finding of the Tribunal was that Mr Pillai did not have significant streams of income, from either his rental properties or business, which considerations of justice and equity demanded should be reflected in the applicable assessments of child support.
The SSAT noted that the prognosis for Mr Pillai’s business becoming profitable in the foreseeable future was good. However, in making this assessment, it also indicated that its responsibility was to make an assessment of Mr Pillai’s current financial circumstances. The relevant findings of the SSAT were as follows:
“In view of this level of indebtedness and its association with the investment properties and the business the Tribunal consider in this instance it is fair to disregard Mr Pillai’s business and rental property income (or losses) to establish his child support income for this period.
In respect of both the business and the investment properties,
Mr Pillai admits that his financial transactions are complicated and claims he relies on his accountant’s advice for the structure of his financial arrangements. Mr Pillai also admitted that he may have more income available for child support but could not be certain of his income amounts.
The unusual and complicated financial arrangement used by
Mr Pillai, do not of themselves, represent special circumstances for the purposes of the legislation. While it is highly likely that Mr Pillai’s financial circumstances will change depending on the success of his business, there is no persuasive evidence, at this time, the Tribunal also noted that the current child support assessment period is due to end on 30 November 2010.
Based on evidence before the Tribunal, it cannot be established, at this time, that the formula assessment is unjust and inequitable because of the income, property or financial resources of
Mr Pillai. There is therefore no ground available to change the assessment. For this reason the decision of the Child Support Agency is to be affirmed.”[7]
[7] See Reasons for Decision at paragraphs 52-55
d) The hearing before the SSAT
I have been provided with a transcript of the hearing of 19 April 2010. It is a document of one hundred and twenty five pages. At the outset of the hearing both parties were sworn in and thereafter the case proceeded as an interlocutory inquisition conducted by the two members of the Tribunal with Ms Podmore and Mr Pillai alternately. Each party was able to comment on statements made by the other.
Having read the transcript, I have no doubt that Ms Podmore put her case assertively to the Tribunal that Mr Pillai’s accounts, albeit that they were incomplete, indicated that his income was likely to be higher than as disclosed by him to the CSA. She professed to be a “little bit baffled as to how he [Mr Pillai] established that the business was running at a loss.”[8]
[8] See Transcript of Hearing at page 25
In response, the Tribunal itself clearly indicated it understood this submission. It asked Ms Podmore:
“You’re saying he’s earning more money and they [Mr Pillai’s accountants] have the wrong figure.”
To which Ms Podmore replied: “Correct”.
This was the context in which Ms Podmore produced the spreadsheet which contained what purported to be her analysis of Mr Pillai’s accounts. It was her position that there was an inadequate correlation between Mr Pillai’s declared income and what he said his expenses were. From this analysis Ms Podmore was able to extrapolate what she asserted were correct figures. In turn the SSAT questioned Mr Pillai about these matters. This is one such example:
“MR GARNHAM: Let’s just do that. Let’s give Mr Pillai an opportunity to respond to that. What do you say about that
Mr Pillai? The exercise, just so you’re clear, that exercise that Ms Podmore has just taken us through is to try and look at what income has come in by aggregating those same periods as set out in your accountant’s statement to your actual balance. And there’s a differential of some $6000 for that period. It’s long enough period where you say your income was 35,624 and she saying she’s added up 41,734.24. That $6000 difference, what do you say about that?”[9]
[9] Ibid at p49
Mr Pillai conceded that he had not personally gone over the accounts concerned with a “fine tooth comb” but asserted that he had given the documents to his accountants in good faith and he could not see why the figures concerned did not “add up”. He gave further evidence that he worked in his business when “the work was there”
Mr Pillai reiterated that he had started his business recently because his employer was no-longer in a position to offer him overtime and as a result, he “had to find another way of providing” for his second family. He also gave evidence that he had to carry the costs of providing materials for jobs until his customer paid the full cost of the job.[10] He also deposed that he had had to buy [materials] as he “went along”.
[10] Ibid at 52-53
Importantly, Mr Pillai deposed that the business would start to make a profit in the foreseeable future. He was unable to put a precise date as to when this would occur. He said as follows:
“MR PILLAI: It’s really hard to say because I’m, you know doing [work omitted]. I’m not just concentrating in one area, so there’s lots of equipment I need. Yes, so hopefully with the next year or so.”
Ms Podmore made it clear to the Tribunal that she did not accept the assertions made by Mr Pillai that his business did not provide him with income. He was asked questions about the relationship between his wife’s credit card and his business account. Mr Pillai also deposed that he had borrowed a lot of money from his parents in respect of the business.
Again Ms Podmore expressed her incredulity regarding these matters to the SSAT. In particular she expressed doubts about the accuracy of the business’ accounts and the fact that if it had not produced any income, it seemed unlikely that any bank would advance it credit.
Mr Pillai indicated that he had secured a loan because he had been banking with the institution concerned for more than twenty years and he was able to use his property as security.[11]
[11] Ibid at page 63
Mr Pillai also indicated that monies had been advanced to him by his family to help him get by and he also sold assets from time. In each case the monies had been deposited into his account. Ms Podmore disputed these alleged borrowings. In this regard the transcript indicates as follows:
“MR GEORGIADES: So what inference are you asking this tribunal to draw?
MS PODMORE: That at the end of the day his financial statements that have been submitted to the ATO do not match the business stuff with what’s in his bank accounts, whether or not he’s borrowed it or not – and he has not actually supplied us accurately with details.”[12]
[12] Ibid at page 83
The transcript further indicates that Ms Podmore invited the Tribunal to draw an inference that Mr Pillai had “more income than what we have a good understanding of that he has.” In respect of her summary spreadsheet, Ms Podmore indicated that although she had some experience as a bookkeeper, her view of Mr Pillai’s financial affairs was that they were “complex” and as such it was likely to be “beneficial” to obtain advice from a “proper accountant” to see what their “objective opinion is.”[13]
[13] Ibid at page 84
At this stage, Mr Georgiadis indicated to Ms Podmore that she would have been entitled to obtain her own forensic accounting examination of the records produced by Mr Pillai. In response, Ms Podmore said that she had been of the view that Mr Pillai’s financial records were confidential and could not be disclosed to a third party.
Ms Podmore also reiterated to the Tribunal her concern that there were documents missing from Mr Pillai’s tendered financial records, particularly his wife’s credit card statements. The following exchange is illustrative of the issue:
“MS PODMORE:….there is information missing, eg---
MR GEORGIADIS: So that’s the issue.
MS PODMORE: And then---
MR GEORGIADIS: It’s a matter of what can be proved, what inferences can be drawn.
MS PODMORE: Well, that’s why I submitted that.
MS GEORGIADIS: It’s your application; you have the burden of proof.
MS PODMORE: Which is why I submitted that, I felt it was important that his wife’s credit card be included. And also too with the debt from his parents there should at least be some sort of itemisation or breakdown of that debt. It’s not to – I’m sorry, but I don’t borrow – nobody borrows 81,000 and doesn’t know how that’s made up, you know? It doesn’t – I’m sorry, but that just seems a little bit vague.”[14]
[14] Ibid at page 88
In my view the transcript of the hearing indicates that, from her examination of the records available to her, Ms Podmore had a series of somewhat inchoate complaints about Mr Pillai’s financial arrangements, particularly that his bank records indicated sums of money were going through his bank accounts which tended to suggest that he was in a more robust financial position than he asserted himself to be in.
The Tribunal was well aware of Ms Podmore’s position. The issues were canvassed with Mr Pillai and he gave explanations in respect of them. The nub of Ms Podmore’s complaint about the Tribunal hearing seems to be that the Tribunal should have been more rigorous in its pursuit of Mr Pillai or should have inferred, from what is asserted to be his uncooperative behaviour before the Tribunal, that he was concealing information from it and Ms Podmore, which was indicative of the fact that his income was in fact higher than it had been found to be by the CSA.
Members of the Tribunal did question Mr Pillai about the matters raised by Ms Podmore. They also made it plain that it was not their function to either firstly undertake or secondly obtain a forensic examination of Mr Pillai’s financial circumstances. The former being beyond the scope of the inquiry before it; the latter not being legislatively mandated as one of its functions. It was made clear to
Ms Podmore that the burden of proofing her assertions of financial irregularities on Mr Pillai’s part lay with her and in discharging this burden it was open to her to undertake her own independent inquiries.
Mr Pillai was also questioned by the Tribunal about the financial ramifications of his rental properties and the contents of his statement of financial circumstances, particularly what was his overall net capital worth. Again Ms Podmore made it clear that she did not accept
Mr Pillai’s evidence in this regard. She being particularly concerned that information available to her indicated that the average median price of property in [omitted], (the suburb in which Mr Pillai lives) was higher than the value ascribed by Mr Pillai to this property.
In my view, this case was typical of many cases which come before the SSAT in its child support jurisdiction. The relationship between the parties concerned was characterised by longstanding mutual mistrust and animosity. Neither party was particularly adept at presenting his or her case or had a strong grasp of the applicable legal principles. In addition neither could be described as having a significant level of financial acumen.
Importantly, Mr Pillai is not solely a PAYG taxpayer. He is a [occupation omitted] operating a small business in conjunction with his wife, who is responsible for preparing the books of the business, whilst he provides the technical expertise required to make the business viable. This is a common demarcation in much small business. Given the small nature of the business, it does not have sophisticated accounting mechanisms. I have no difficulty in ascribing Mr Pillai’s business as being small, as it has no other employees and it is common ground that he continues to work for another person to a significant degree.
In such cases, characterised by suspicion and mistrust, it is common that a custodial parent perceives that the liable parent is likely to have a significant exposure to the black economy or to be intent on defrauding them in some way in respect of child support issues. Against such a background it is common for allegations of financial impropriety to occur, which are met by denial. In such scenarios, it may be difficult for the party making complaint to provide empirical evidence in support of his or her position, yet remain convinced of the righteousness of that position and vociferously assert it.
Throughout the proceedings, the Tribunal indicated to Ms Podmore that she bore the burden of proof of establishing her allegations. She asserted to the Tribunal, as she was entitled to do, that she did not accept the truth of what Mr Pillai said about his business loan and the monies borrowed from his parents, amongst other salient issues. The Tribunal put these issues to Mr Pillai.
The following exchange between Ms Podmore and the Tribunal is, in my view, emblematic of the dynamic of this aspect of the hearing in the sense that Ms Podmore wanted either Mr Pillai or the Tribunal to provide proof to her that there was no basis for her suspicions, which in the circumstances which prevailed, was likely to an impossible task:
“MS GEORGIADIS: Just make your point, Ms Podmore.
MS PODMORE: My point is he has a total income, and anyone can deduce this. It is not just me. You don’t have to take my word for it. You can go through his statements. He has a total incoming figure of $126,721 and his expenses are only 9999 – like it is $99,999 in expenses, which still leaves him with a – that is what I am saying , there is still a surplus income of 26.
MR GARNHAM: Yes. But 81,000 of that may be borrowed.”[15]
[15] Ibid at page 99
The Tribunal was alive to Ms Podmore’s suspicions. Mr Garnham characterised Mr Pillai’s affairs as being a “very complicated financial setup.” In these circumstances, it indicated to Ms Podmore that it would enable her to discuss the financial documents, which Mr Pillai had disclosed and which she herself had subjected to her own personal analysis, with an accountant of her choosing, with a view to obtaining her own forensic evaluation. It also indicated to Mr Pillai that he would be able to respond to any such evaluation.
It is the case that Ms Podmore did not take up this opportunity and accordingly the Tribunal determined her application on the basis of the evidence available to it. It is also the case that the Tribunal declined to direct Mr Pillai to provide any further financial documents to it as it was satisfied that it had “a lot of financial information about him now.”[16]
[16] Ibid at page 106
In my view, on the evidence before it, it was open to the Tribunal to conclude that Mr Pillai’s business and financial arrangements were unusual. However it did not find that he had access to large amounts of undisclosed income. As such, it was not persuaded that the child support income attributed to him by the CSA was not a fair and proper one.
The nature and legislative basis of appeals to this court from the SSAT
The nature of an appeal to this court, from a decision of the SSAT, is governed by the provisions of Division 5 of Part 7A of the Collection Act, in particular section 110B, which reads as follows:
“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.”
This court is authorised to hear such appeals from the SSAT by virtue of the provisions of section 110E of the Collection Act. Pursuant to section 110F of the Collection Act, having determined any such appeal, I am authorised to make any order, which I believe is appropriate but particularly may:
·affirm or set aside the decision of the SSAT; or
·remit the case to be heard again by the SSAT, either with or without the hearing of further evidence.
The first question to consider is what is the nature of an appeal on a “question of law”? The provisions of the Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006 has significantly reformed the review process in respect of administrative decisions of the Child Support Registrar. The legislation has inaugurated an independent process of review through the SSAT. This process is external of the Agency’s processes and is administrative in nature.
The intent evinced by the legislature, in limiting any appeal from the SSAT to a question of law, is to ensure that the merits of the case are dealt with not by this court but by the SSAT. The High Court has characterised “this distribution of function [as] critical to the correct operation of the administrative review process.”[17]
[17] See Repatriation Commission v Owens (1996) 70ALJR 904
Accordingly, pursuant to the provisions of section 110B, any further appeal from the SSAT is limited in nature. It is limited only to an examination of how the SSAT applied or failed to apply the applicable principles of law, which were relevant to the determination of the appeal issue which came before it.
As such, an appeal to this court, pursuant to section 110B, does not constitute a rehearing on the merits of the case nor should this court, other than in exceptional circumstances, challenge findings of fact made by the SSAT.
The power of this court, in an appeal from the SSAT, to make finding of facts is limited by the provisions of section 110G of the Collection Act. The court may make a finding only if the following two provisos are satisfied:
·Such a finding of fact is not inconsistent with findings of fact made by the SSAT – other than findings made by the SSAT as a result of an error of law.
·It is convenient for the court to make such findings of fact. [18]
[18] See Child Support (Registration and Collection) Act 1989 at section 110G(1)
Pursuant to section 110G(2), for the purpose of making such findings of fact, the court may either have regard to the evidence given in proceedings before the SSAT itself or receive further evidence. However, it is clear that the power to receive further evidence is dependant upon the court discerning an error of law in the decision of the SSAT, which is subject to appeal. Essentially, this court, in its appellant jurisdiction from the SSAT, must be careful not to allow evidence to be adduced in the expectation advanced by any appellant that an error of law will thus be demonstrated.
Accordingly, this court should not be concerned as to whether or not it would have come to the same conclusion as the SSAT did, but only whether the SSAT erred in law,[19] as it is only in “exceptional circumstances” that the decision of the Tribunal should not be the final decision.[20]
[19] See Neal v Secretary, Department of Transport (1980) 3 ALD 97 at 100 per Franki J and Comcare v Etheridge [2006] FCAFC 27 at paragraph [14] per Branson J.
[20] See Blackwood Hodge (Australia) Pty Ltd v Collector of Customs (No 2) (1980) 33 ALD 38 at 49 per Fisher J.
It is the function of this court to determine whether the decision of the SSAT was within its legal powers. That is what is meant by a question of law. It is not the function of this court to examine the merits of that decision. Essentially, it is not the function of this court to reappraise the evidence led before the SSAT and re-determine the case, according to the conclusions it draws from the available evidence.
As such, I should be cautious to approach the decision of the SSAT with “an eye [which is] too keenly attuned to perception of error”. [21]Rather I should take a commonsense approach to what the SSAT was saying in its decision and the reasons why it did said what it said. The function of the SSAT is not to produce reasons of “jurisprudential excellence”.[22] It is to provide an informal and expedient level of independent review.
[21] See Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at 258
[22] See LDME & JMA [2007] FMCAfam 712
An administrative tribunal exceeds its powers and thus commits a jurisdictional error, which is correctable on appeal in respect of a question of law, if it:
·fails to construe properly the legislative provisions applicable;
·identifies the wrong issues or asks itself the wrong questions;
·ignores relevant material or relies on irrelevant material;
·fails to accord procedural fairness to the party before it;
·makes an erroneous finding of such a magnitude that it goes to the very jurisdiction which it purports to exercise rendering its decision perverse or unreasonable or otherwise offending logic.[23]
[23] See Apthorpe v Repatriation Commission (1987) 13 ALD 656 at 666
As Gleeson C.J. pointed out in Re Minister for Immigration & Multicultural Affairs: Ex Parte Applicant S20/2002:[24]
“To describe reasoning as illogical, or unreasonable or irrational, may merely be an emphatic way of expressing disagreement with it. If it is suggested that there is a legal consequence, it may be necessary to be more precise as to the nature and quality of the error attributed to the decision maker, and to identify the legal principal or statutory provision that attracts the suggested consequence.”
[24] Re Minister for Immigration & Multicultural Affairs: Ex Parte Applicant S20/2002 (2003) 198ALR 59 at 61
In Collector of Customs v Pressure Tanker Pty LtdandPazzolanic Enterprises Pty Ltd,[25] the Full Court of the Federal Court, in respect of the Administrative Appeals Tribunal, characterised the nature of an appeal, restricted to a question of law, from a fact finding and decision making tribunal as follows:
“… the nature of the task of this court is clear. It is to leave to the tribunal of fact decisions as to the facts and to interfere only when the identified error is one of law.”
[25] Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprise Pty Ltd [1993] 43 FCR 280
In summary, an appeal on a question of law:
·is not a review on the merits or a rehearing;
·as such, an appeal on a question of law is not one in which findings of fact, per se, can be called into question;[26]
·however, bearing in mind the statutory intent implicit in Part VIII of the Collection Act and the purpose of the Federal Magistrates Court itself, in dealing with SSAT appeals, the court should not be unduly legalistic or pedantic, particularly where the appellant concerned is self-represented;
·in reviewing a decision of the SSAT for error, the court should not examine the decision in question with an eye “keenly attuned to the perception of error”.
[26] See LDME & JMA [2007] FMCAfam 712 at paragraph 29
In brief terms, the requirement that a hearing be procedurally fair requires the decision making tribunal concerned to apply the rules of natural justice. There are two traditional rules of natural justice. Firstly, the hearing rule which requires a decision maker to hear a person before making a decision which affects the interests of that person. Secondly, the bias rule which provides for the disqualification of a decision maker where doubts arise as to the actual or perceived impartiality of the decision maker concerned.[27]
[27] See Aronson & Dyer: Judicial Review of Administrative Action (2nd Edition) 2000 LBC Information Services at p.300
The grounds of appeal
The appellant relies on the following grounds of appeal:
“That the decision of the tribunal was wrong at Law in that the Tribunal did not accord the Appellant Natural Justice.
The Tribunal failed to consider properly or at all the issues of fairness and justice between the parties.
The Tribunal failed to consider properly or at all the Respondents failure to provide appropriate evidence to the Tribunal in respect to:
a) His income and expenditure both business and personal
b) His payment to his wife’s credit card account
c) His business loan
d) His loan from his parents
e) His GE credit card
f) His GE Loan
g) His investment income
h) The discrepancy between his Bass Statements and Profit Loss reports
i) And that the Tribunal should have drawn an adverse inference from the respondents failure to provide appropriate evidence.”
Ms Podmore appeared on her own behalf in these proceedings. However, she had legal advice in respect of her grounds of appeal. In particular, her former solicitor drafted an eleven page written submission on which Ms Podmore relied.
These grounds of appeal were extended in the written submissions. Issue was taken with what were said to be inaccuracies in financial information provided by Mr Pillai. In addition it was stated that the Tribunal had ignored relevant materials. As such it had made erroneous findings of such magnitude that it “goes to the very jurisdiction it purports to exercise.”[28]
[28] Ibid at page 9
This type of jurisdictional error was described by the High Court in Minister for Immigration and Multicultural Affairs v Yusuf[29]:
“What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”
[29] See Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Ms Podmore must demonstrate this type of error. It is not sufficient for her to demonstrate or argue that other conclusions were available to the decision maker in question. This is the distinction between an error within jurisdiction and an error of jurisdiction.
Ms Podmore was unable to expand upon these written submissions. She is not legally qualified. In addition, it was her submission that she finds it to be taxing on her emotional resources to discuss matters relating to Mr Pillai’s financial circumstances. She said she finds it distressing to talk about his business.
The applicant’s case turns on her assertion that the hearing before the SSAT was procedurally flawed because the respondent had failed to comply with directions for the disclosure of documentary evidence regarding his financial situation and accordingly, the findings the SSAT made were not logically open to it on the limited evidence available. As such, as a matter of law, the SSAT should have formed an adverse inference concerning Mr Pillai’s credit.
In particular, Ms Podmore asserted that the SSAT had made numerous specific errors, which related to the evidence led before it. These errors can be summarised as follows:
a) The burden of proof/adverse inference
Ms Podmore expressed the SSAT’s alleged error, regarding this aspect of the case, as follows:
“It confused the issues of my having the burden of proof versus Mr Pillai’s obligation to provide full and appropriate disclosure (eg. his wife’s bank statements), the Tribunal should have made an adverse inference against Mr Pillai and accepted as prima facie evidence my assertions in respect to Mr Pillai’s undisclosed income and/or financial resources.”[30]
[30] See written submissions at page 8
In particular Ms Podmore is critical that Mr Pillai did not provide a business activity statement for the quarter ending 31 December 2009; a balance sheet for [P]; full bank statements in respect of the Bendigo Bank account; payslips for the month of February and March 2010; information regarding moneys lent to him by his parents; and proper written submissions, explaining the management of his finance and assets.
The SSAT was of the view that it had sufficient documentary evidence from Mr Pillai to determine the matter. It expressed this conclusion during the course of the hearing.[31] In my view, this was a matter of fact which fell within the discretion of the Tribunal as the finder of fact in the case.
[31] See transcript of proceedings at page 106
It is essentially Ms Podmore’s case that Mr Pillai’s financial records, as provided by him to the SSAT, are incomprehensible. It is also her position that Mr Pillai has been earning significantly greater sums of moneys than he has disclosed to the CSA. Given what Ms Podmore categorises as incomplete disclosure by Mr Pillai, she asserts that the SSAT should have drawn an inference from this state of affairs that
Mr Pillai was indeed earning undisclosed income.
The SSAT was aware that Ms Podmore had “consistently argued that Mr Pillai’s income is greater than is used for the child support assessment.”[32] In particular the Tribunal was aware that it was
Ms Podmore’s position that her analysis of Mr Pillai’s bank statements indicated his annual income was somewhere in the vicinity of $169,000.00. These submissions were apparently based on the spreadsheet, which Ms Podmore had tendered to the Tribunal during the course of the hearing.
[32] See Reasons for Decision at paragraph 40
The SSAT rejected this submission, although it did find that Mr Pillai’s financial arrangements were unusual and difficult to follow. It said as follows in respect of Ms Podmore’s submissions:
“The submissions fail to identify where extra income is being generated or transacted by Mr Pillai. What the submissions do highlight is that significant amounts of money are moved through the various accounts. Nevertheless, genuine concerns exist in respect of the generation of income by Mr Pillai in respect of both his investment properties and business.”[33]
[33] See Reasons for Decision at paragraph 43
The Tribunal was well aware that Ms Podmore’s position was that
Mr Pillai’s accounts did not “smell right” and so would not withstand thorough scrutiny. In those circumstances, it gave Ms Podmore the opportunity to investigate the accounts in whatever manner she deemed fit.
Ms Podmore chose to undertake her own analysis, as she was entitled to do. She provided her spreadsheet to the SSAT and asserted that it established an income for Mr Pillai well in excess of the amount previously accepted by the CSA. The SSAT did not accept this submission.
The SSAT itself was not required to undertake its own forensic analysis of the accounts provided to it. It does not have explicit legislative authority to commission such an inquiry. It is not sufficient for
Ms Podmore to make assertions about the alleged deficiencies in
Mr Pillai’s accounts and when these are not specifically taken up by the Tribunal complain that it should have undertaken a more exhaustive and necessarily independent inquiry.
In addition, the SSAT was entitled to draw its own conclusions regarding Mr Pillai’s credibility and whether he had or had not been open in providing information about his financial circumstances to it. The SSAT did not criticise Mr Pillai in respect of his level of disclosure.
The process of drawing an adverse inference in regards to the credibility any witness appearing before it is the sole domain of the fact finder concerned. Any such adverse inference is not to be drawn in a mechanical fashion, merely because of the absence of one or a number of categories of document. Exception to the absence of which is taken after the hearing itself.
In my view, it was open to the SSAT to find, as it did, that Mr Pillai’s financial circumstances were unusual and complicated but were not formulated in such a manner for any malign purposes, particularly to escape liability for child support. In my view, this was a finding open to it which was open to it on the basis of the evidence available to it.
The import of the Collection Act is to devolve onto the SSAT a fact finding jurisdiction in respect of the matters which come before it. The applicable legislative provisions direct how it is to perform this function.
The SSAT is directed to provide mechanisms for review of decisions of the Child Support Registrar, following reconsideration, that are fair, just, economical, informal and quick [Collection Act at section 88].
The powers of the SSAT, on review of a decision of the Registrar, are set out in Division 5 of Part 7A of the Collection Act. The SSAT may affirm, vary or set aside any applicable decision and either substitute its own decision or refer the matter back to the registrar for reconsideration.
The SSAT is conferred with all the powers and discretions which are conferred on the registrar of the Child Support Agency both by the Assessment Act and the Collection Act [Collection Act at section 103T].
As such, the SSAT has the same powers to obtain information as are conferred on the Registrar of the Child Support Agency. Pursuant to section 120 of the Collection Act, the Registrar may direct a person, in writing, to provide information to the Registrar as is required. The Registrar also has the power to question a person in respect of any issue relevant to the discharge of his statutory responsibilities.
These are essentially inquisitorial powers. In my view, they do not authorise the Registrar, per se, to obtain any independent expert report, such as a forensic accounting report. In any event, the powers conferred by section 120 are discretionary ones. The SSAT gave
Ms Podmore the opportunity to obtain her own forensic accounting report. She did not do so. In the absence of such a report it fell to the SSAT to make findings on the basis of the evidence available to it.
The hearing before the SSAT is not bound by legal technicalities or the strict rules of evidence [Collection Act at section 103N]. Importantly, the SSAT has a discretion to take sworn evidence for the purpose of its review function [Collection Act at section 103G]. In this case, the SSAT took evidence from each of the parties concerned and was a position to make its own determination regarding their respective credibility.
Accordingly, the SSAT stands in the shoes of the decision maker whose decision it is reviewing. It has the same functions and powers. It is empowered to make findings of fact and to determine the evidence on which those findings of fact are to be based. As such, the SSAT must answer the same questions that were before the Senior Case Officer and Objections Officer concerned and apply the same legislative provisions. As such, the decision making process begins anew.[34]
[34] See PJ & Child Support Registrar (SSAT) Appeal [2007] FMCAfam 829
The factual issue, in the current case, which was before the SSAT was whether Mr Pillai’s child support income was higher than the Registrar of the CSA had found it to be. Ms Podmore was the person who was agitating this issue. The SSAT was required to inquire into this issue. In my view, it performed this function and made findings which were open to it. It found that Mr Pillai had a readily identifiable source of income from his employment; the potential to earn income from his business; and negligible rental income.
In my view, these findings were open to it. Necessarily, given the status of Mr Pillai’s financial affairs, the SSAT was not able to make a precise finding as to Mr Pillai’s income. However, this does not of itself indicate that the SSAT’s reasoning was inherently unsound or doubtful. The Tribunal itself was satisfied that it had sufficient evidence on which to base the findings which it made.
A finding of fact is not reviewable by a court in the context of judicial review, unless the finding of fact is made in the absence of evidence to support it. That is an error of law. As is the drawing of a factual inference in the absence of evidence to support it. However, the making of a wrong finding of fact is not in itself an error of law provided there is some evidence before the decision maker concerned which is rationally (as opposed to perversely) capable of supporting such a conclusion.
What moneys, in the form of income, were available to Mr Pillai, in the child support period in question, is a question of fact. As such, it was a matter for the Tribunal, particularly in respect of what inferences it did or did not draw. In this regard, I bear in mind what was said by Mansfield J in Comcare v Moon[35] as follows:
“Care must be taken not to convert questions of fact into questions of law. The Tribunal more over does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis or because it adopts unsound reasoning. If there is any evidence rationally and legally capable of supporting the finding of fact the finding of fact does not involve an error of law.”
[35] See Comcare v Moon [2003] FCA 569 at paragraph 33
The SSAT is an administrative tribunal not a court. The rules of evidence do not apply to it. It is however required to accord procedural fairness to the parties appearing before it. As such it is required to inform the parties of any evidence gathered and give each of them an opportunity to respond to it.
Ms Podmore’s case, too a large degree, rested on her inchoate suspicions regarding Mr Pillai’s financial circumstances. These various suspicions were put to Mr Pillai, during the course of the hearing and he responded to each of them. The Tribunal was entitled to determine what weight should be given to the assertions of Ms Podmore on the one hand and Mr Pillai’s responses to them on the other and reach its own conclusions in respect of them.
Ms Podmore asserts that Mr Pillai failed to provide adequate disclosure. However, the Tribunal itself determined that it had sufficient documentary evidence before it, from Mr Pillai, to determine the salient issues before it. It determined that it had a lot of financial information about Mr Pillai.
In my view, it was open to the Tribunal, on the evidence available to it, to conclude that Mr Pillai operated a small business which was in a developmental phase and, as such, it did not generate significant income. In addition, although his financial methods could not be described as orthodox, he was not concealing income and resources from the CSA and Ms Podmore. In the overall circumstances of this case, I do not consider that this can be characterised as an extraordinary finding or one which was legally erroneous because there was no evidence available to it rationally and legally capable of supporting the conclusion.
The fundamental task of the SSAT, standing in the shoes of the Registrar, was to determine whether special circumstances, relating to Mr Pillai’s income and other financial circumstances, existed to justify a departure from the applicable child support assessment and whether it would be just and equitable and otherwise proper for the assessment to be changed.
Ultimately, on the basis of the evidence available to it, the SSAT concluded that the current assessment was a proper one and there was no persuasive evidence to suggest otherwise. It did not accept
Ms Podmore’s assertion that her analysis of the evidence indicated that Mr Pillai had a significant level of undisclosed income. It was under no legal obligation to accept Ms Podmore’s assertions to the contrary as being prima facie evidence of anything.
b) Other allegations that the SSAT ignored relevant material
In her written submissions, Ms Podmore alleges that the SSAT ignored evidence regarding various sums of monies, which were said to amount to income, which had come into Mr Pillai’s various accounts. These were said to be erroneous errors of such a degree as to go to the very jurisdiction with which the SSAT had been conferred.
I do not agree. The seminal Australian case on jurisdictional error is Craig v South Australia.[36] It dealt with the at times subtle difference between errors of jurisdiction and errors within jurisdiction. The former being capable of being remediated by a superior court as errors of law, the latter not.
[36] Craig v South Australia (1995) 184 CLR 163
Hayne J in Re Refugee Review Tribunal; Ex parte Aala[37] alluded to the latitude an administrative tribunal has to go wrong in matters within its jurisdiction. The distinction is important because it goes to the heart of the difference between a review on an error of law and rehearing on the merits.
[37] Re Refugee Review Tribunal; Ex parte Aala (2001) 204 CLR 82
In Aala[38] Hayne J said as follows:
“In deciding whether writs of prohibition and certiorari (and analogous forms of relief) should be granted, a distinction is drawn between jurisdictional error and error within jurisdiction. This Court has not accepted that this distinction should be discarded. As was noted in Craig v South Australia, that distinction may be difficult to draw. The difficulty of drawing a bright line between jurisdictional error and error in the exercise of jurisdiction should not be permitted, however, to obscure the difference that is illustrated by considering clear cases of each species of error. There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction. (This is sometimes described as authority to go wrong, that is, to decide matters within jurisdiction incorrectly.) The former kind of error concerns departures from limits upon the exercise of power. The latter does not.”
[38] Supra at [163]
In this particular case, the SSAT, in my view, addressed itself to the right question: were the circumstances of the case such that it would be unjust and inequitable to allow the applicable child support assessments to stand because of Mr Pillai’s current financial circumstances.
Accordingly, in my view, the SSAT addressed itself to the correct jurisdictional question. It considered all relevant material before it, provided by both Ms Podmore and Mr Pillai. It found that although
Mr Pillai’s financial affairs were difficult to follow, Ms Podmore had not established that Mr Pillai had access to additional income, financial resources or property for child support purposes.
Ms Podmore disagrees with this conclusion. However, in my view, the issue is one which goes to the exercise of an intra-jurisdictional power. It is not the function of the court to substitute its own findings for those of the SSAT in respect of the issue.
In my view, there was ample evidence on which the SSAT could come to the conclusion that Mr Pillai was a modest income earner, with some technical but not otherwise exceptional skills, who had begun to operate a small business, which was in its nascent stages and as such was not as yet profitable.
In my view, it was also open to the SSAT to find that Mr Pillai was heavily dependent on borrowings to establish the business and his various property interests were heavily geared. In short, in my view, it was open to the SSAT to find, as it did, that Mr Pillai did not have access to any undisclosed sources of income for child support purposes.
c) Natural Justice
The appellant did not expand upon her assertion she was denied natural justice by the SSAT. She does not assert any bias on the part of the Tribunal. The transcript of proceedings indicates a lengthy hearing during which Ms Podmore took an active role. She presented her case. Ultimately it was not accepted by the SSAT. This ground is not made out.
Accordingly, I have come to the view that there is no error of law apparent in the reasons for decision of the SSAT delivered on 20 July 2010 and accordingly the notice of appeal filed on 19 August 2010 should be dismissed.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and forty-one (141) paragraphs are a true copy of the reasons for judgment of Brown FM
Date: 26 September 2011
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