Redmond and Redmond and Anor (SSAT Appeal)
[2013] FCCA 638
•28 June 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| REDMOND & REDMOND & ANOR (SSAT APPEAL) | [2013] FCCA 638 |
| Catchwords: CHILD SUPPORT – SSAT appeal – no question of law raised – dismissal. |
| Legislation: Family Law Act 1975 |
| Chamberlain & Slade(SSAT Appeal) [2012] FMCAfam 658 LDME v JMA (SSAT Appeal) [2007] 38 FamLR 132 Jordan & Verne (SSAT Appeal) [2012] FMCAfam 21 Tasman & Tisdall [2008] FMCAfam 126 Gyselman & Gyselman (1992) FLC 92 -279 PJ & the Child Support Registrar (SSAT Appeal) [2007] FMCAfam 829 Johnson & Johnson [2000] HCA 48 Urquhart & Urquhart & Anor (SSAT Appeal) [2011] FMCAfam 1453 Bedell & Kastens & Anor (SSAT Appeal) [2010] FMCAfam 1250 Re Minister for Immigration & Multicultural Affairs: Ex Parte Applicant S20/2002 (2003) 198 ALR 59 Australian Postal Corporation v Hughes [2009] FCA 1057 Mee v Ferguson (1986) FLC 91-716 Re F: Litigants in Person Guidelines (2001) FLC 93-072 |
| Applicant: | MR REDMOND |
| First Respondent: | MS REDMOND |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | BRC 4493 of 2011 |
| Judgment of: | Judge Coates |
| Hearing date: | 12 December 2012 |
| Date of Last Submission: | 12 December 2012 |
| Delivered at: | Brisbane |
| Delivered on: | 28 June 2013 |
REPRESENTATION
| Solicitors for the Applicant: | Self represented |
| Solicitors for the First Respondent: | Self represented |
| Solicitors for the Second Respondent: | Department of Human Services |
ORDERS
That the Notice of Appeal filed 7 February 2012 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Redmond & Redmond & Anor (SSAT Appeal) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 4493 of 2011
| MR REDMOND |
Applicant
And
| MS REDMOND |
First Respondent
| CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
This is an appeal filed 7 February 2012 against a decision of the Social Security Appeals Tribunal (the Tribunal) delivered 11 January 2012.
The decision related to an assessment, among others things, of the capacity to pay private school fees and the income and financial circumstances of the parties.
The appeal is made pursuant to s.110B of the Child Support (Registration and Collection) Act 1988 (the Act).
The appellant father seeks:
“1.That the Appeal be allowed.
2. That the decision of the Social Security Appeals Tribunal be set aside.
3. That the matter be remitted for rehearing to a differently constituted Social Security Appeals Tribunal to hear and determine according to law and subject to any further evidence that may be available.
4. That the Respondent pays the Applicants costs on an indemnity basis.”
The appellant lists 17 grounds of appeal, although two are marked number 5, so there are 18 grounds.
The orders sought in the appeal are opposed by the respondent mother and the second respondent, the Child Support Registrar, who seek to have the appeal dismissed.
The appellant was self represented. He is a (occupation omitted) in (omitted).
The respondent mother was self represented. She is a (occupation omitted) in (omitted).
The Child Support Registrar (the Registrar) was represented by Mr Bishop.
Preliminary matters
Preliminary matters were traversed before the hearing.
The appellant sought leave to amend his application on the day of hearing.
My directions made 28 May 2012 gave the appellant leave to amend his appeal on questions of law. That was at my instigation on a brief perusal of the appeal document.
Any amendment and any further material had to be filed at least 28 days before the hearing date, which being in December, allowed six months to consider possible amendments.
The appellant did not file any amended material within time.
Both the mother and the Registrar objected to amendments proposed on the day of the hearing. Both submitted that a new affidavit of evidence relied on also went to evidence which was not before the Tribunal.
The new material attempted to rely on subpoenaed material regarding school fees, which was never put before the Tribunal for its decision. The subpoenaed material was obtained for other proceedings under the Family Law Act 1975 and is before another judge.
While new evidence is allowable in certain circumstances, the respondent mother's very clear objection was based on prejudice to her, in that she was denied time to respond properly.
The affidavit of alleged new evidence was served on her at 4.01 pm on the day before the appeal was heard.
The appellant insisted that the respondent mother would suffer no prejudice and: "She has had a whole night to look at it. She could have filed an affidavit this morning if she wished. So she has got it now. She can read it now. She can go outside. We can adjourn. She can read it."
Mr Bishop, for the Registrar, relied on s.110G of the Act and relevant comments of Brown FM in Chamberlain & Slade(SSAT Appeal) [2012] FMCAfam 658, at paragraph 22, where he stated:
“The power of the court in an appeal from the SSAT, to make findings of fact is limited by the provisions of s.110G of the Collection Act. This court may make findings only if the following two provisions are satisfied: Such a finding is not inconsistent with the findings 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”.
Mr Bishop said his Honour stated the court “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”.
Based on that, Mr Bishop submitted that the much of the new affidavit evidence was not before the Tribunal and was not relevant on a question of law.
The appellant sought to amend ground 7, but when asked for an explanation he said I could allow the amendment by leave under r.7.03 of the Federal Magistrates Court Rules2001.
He gave an explanation that he sought to amend “to make it easier for the court to assess my grounds and see where I’m coming from”.
The proposed amendments also sought to add another two grounds, with Mr Bishop stating that not only was there no notice, that they did not raise questions of law.
From the appellant’s explanations, I could not identify any clarification of his grounds, but he did say new grounds went to compliance with the Act by the Principle Member in giving notice of the hearing.
When I put to the appellant that compliance was not an explanation as he had submitted, he stated: "Well it goes to procedural fairness”.
It may or it may not, however, I clearly gave the appellant time to amend and I had stated that the amendments be made so the respondents would know the case they were to meet.
I also raised the issue which went to the appellant's compliance with directions.
The appellant's submissions – that the respondent had all the night before to read the material or that she could go outside and read it – were cavalier statements.
Determining whether questions of law are raised on such an appeal is an issue which respondent's are entitled to have time to consider, and the appellant was not giving them such time.
The appellant had very reasonable time granted by the court to make amendments, between May and December. His explanations about the lateness and what they were about were not helpful in resolving the controversies before me.
There was no satisfactory explanation as to why the appellant was seeking to rely on a change to his case so late in the proceedings, when it was apparent he had known the subpoenaed material had existed for some time. That is apart from the fact that the alleged evidence is contained in subpoenaed documents secured for a separate matter under a separate Act and was not before the Tribunal. The subpoena was issued for a separate purpose and I am not persuaded it should be used for other purposes.
I accept grave prejudice – in the sense that the rights of the respondent to know the case they were to meet – would be caused by allowing the amendments at such a late stage.
On that basis, I did not grant leave to amend his appeal.
Given the manner in which the matter proceeded, I should record that the appellant then complained that he had only been served with the respondents' submissions on the morning of the hearing. That is not a ground for complaint. That is a usual practice. He said he required time to read them. Time was granted.
He then objected to an affidavit filed for the Registrar by a Ms S, which went to materials before the Tribunal hearing. It went to the change of assessment decisions, the objections decisions, to the appellant's debt at the time of the hearing and to supply of documents to the parties.
The objection was based on the claim that the appellant did not receive some of those documents, however, the affidavit went to material before the Tribunal, and gave evidence of what documents were sent to the parties pursuant to s.95(3) of the Act.
I considered whether the appellant could be prejudiced by the material. He could not be prejudiced by that material as there was nothing new which would affect his appeal. As to his claim that he did not receive the documents pursuant to s.95(3), I address that below. I received the material.
THE DECISION APPEALED
This appeal relates only to the appeal filed 7 February 2012 in relation to decisions delivered 11 January 2012, in which the Tribunal set aside the administrative decisions by the Child Support Agency. There is another appeal I have not heard yet.
The reviewed decisions were:
a) The decision of an objections officer on 15 August 2011 to disallow an objection to a decision made by a senior case officer for the period 7 May 2011 to 31 December 2012, increasing the appellants annual rate of child support by $3,544; and
b) A decision made by an objections officer on 24 October 2011 disallowing an objection to a decision made which refused to change the administrative assessment of child support.
The child support is for the child, X born (omitted) 2005.
The mother had applied on 20 April 2011 to the Child Support Agency for a departure from administrative assessment based on costs of educating the child in the manner expected by the parents and on the income, property, financial resources and earning capacity of the parents.
The appellant applied for a departure on 29 April 2011 based on the income, property, financial resources and earning capacity of the parents and on 18 May 2011 cross-applied against the mother’s departure application on the grounds that:
a)The high cost of enabling a parent to spend time with or communicate with the child;
b)The income of the child; and
c)The necessary commitments for self-support.
On 13 June 2011, a senior case officer considered both applications and the cross-application and made a decision for departure in favour of the mother upon the basis that she established that the costs of educating the child in the manner expected by the parents and the income, property, financial resources and earning capacity of the parents on the evidence.
On 15 July 2011, the appellant applied to the Child Support Registrar for a further departure based on the income, property, financial resources and earning capacity of the parents and on 12 August 2011 a senior case officer found that he failed to establish a ground of departure and refused his application.
On 12 August 2011, the appellant objected to that decision.
On 15 August 2011, the objections officer disallowed the appellant’s objection against the departure decision which was made 13 June 2011.
On 16 August 2011, the appellant filed his appeal to the Tribunal.
On 24 October 2011, the objections officer disallowed the objection against the departure decision dated 12 August 2011 – the refusal decision.
On 16 November 2011, the appellant filed another appeal to the Tribunal against the decision.
The new decision was that:
“On 4 January 2012, the Tribunal decided to set aside the decision under review and substitute a new decision that:
· For the period 4 April 2011 to 24 April 2011 the annual rate of child support payable by Mr Redmond be set at $7,144;
· For the period 25 April 2011 to 20 June 2011 the annual rate of child support payable by Mr Redmond be set at $6,544;
· For the period 21 June 2011 to 8 July 2011 the annual rate of child support payable by Mr Redmond be set at $9,744;
· For the period 9 July 2011 to 31 December 2011 the annual rate of child support payable by Mr Redmond be set at $7,144;
· For the period 1 January 2012 to 31 December 2012 Mr Redmond’s adjusted taxable income be set at $60,000, Ms Redmond’s adjusted taxable income be set at $50,000, and the annual rate of child support otherwise payable by Mr Redmond be increased by $3,722.”
I am dealing with his first of two appeals, that being filed on 7 February 2012.
THE LAW
This appeal is brought pursuant to s.110B of the Child Support (Registration and Collection) Act 1988. That section states:
“s.110B A party to a review by the SSAT under Part VIIA may appeal to a court having jurisdiction under this Act, on a question of law, from a decision of the SSAT on that review under section 103S.”
It is essential that an appeal is on a question of law, that is, it identifies the question of law.
This limited jurisdiction given by s.110B of the Act does not allow for an appeal on fact or even a mixed question of fact and law.
In LDME v JMA (SSAT Appeal) [2007] 38 FamLR 132, Halligan FM said:
“19. The Explanatory Memorandum accompanying the Bill that became the New Formula Act says of s.110B:
“Section 110B deals with appeals from decisions of the SSAT. It provides that a party to a proceeding before the SSAT may appeal to a court having jurisdiction, on a question of law, from any decision of the SSAT in that proceeding. This is consistent with how matters are currently appealed from the AAT to a court. The SSAT and AAT are tribunals which consider the merits of a case, whereas a court usually only considers matters which raise a question of law.”
20. The provision creating a right of appeal, on a question of law, from the Administrative Appeals Tribunal (the AAT) is s.44(1), Administrative Appeals Tribunal Act 1975 (the AAT Act), which is in the following terms:
“(1) 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.”
21. Section 110B and s.44(1) are identical provisions apart from the references to the tribunals whose decisions may be appealed and the court to which the appeal lies. And other provisions of Division 3, Part VII of the Registration Act are based on provisions in relation to appeals, on a question of law, from the AAT, including provisions as to the court’s powers on an appeal (cf. s.110F, Registration Act and s.44(4) and (5), AAT Act) and the limited power to make findings of fact on an appeal (cf. s.110G, and s.44(7), (8) and (9)). Thus, in determining the meaning and operation of provisions of Division 3, decisions as to the meaning and operation of equivalent provisions of s.44 will provide valuable guidance.”
Federal Magistrate Jarrett referred to that case in Jordan & Verne (SSAT Appeal) [2012] FMCAfam 21 and stated that the consistent decisions of this court have been informed by the approach “adopted when dealing with appeals pursuant to s.44(1) of the AAT Act: e.g. LDME & JMA (SSAT Appeal) (above), Tasman & Tisdall [2008] FMCAfam 126, Byrne & Graham (SSAT Appeal) [2010] FMCAfam 1116; Travers & Gibbon (SSAT Appeal) [2011] FMCAfam 543”.
At paragraph 7 he then said:
“7. As to the approach to be adopted on an appeal brought pursuant to s.44(1) of the AAT Act, the principles have recently been summarised by the Full Court of the Federal Court in Rana v Repatriation Commission [2011] FCAFC 124. In that case Kenny, Stone and Logan JJ said:
[11] The right of appeal conferred by s 44 of the AAT Act is a right to appeal to this court "on a question of law". The question of law is, as was emphasised by Gummow J when a judge of this court, the very subject matter of the appeal: TNT Skypak International (Aust) Pty Ltd v FCT (1988) 82 ALR 175 at 178. Recognising this, Ryan J in Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524 highlighted the importance of stating a question of law in the notice of appeal. This importance has been repeatedly emphasised in recent years by the Full Court in cases such as Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 at 324-325 (Birdseye); Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290 at 300-302 and Comcare v Etheridge (2006) 149 FCR 522 at 526-527. The need for a notice of appeal to specify a question of law is not just a matter of pleading. In the absence of a question of law there is no subject matter for the appeal and the court has no jurisdiction to entertain the proceeding.
[12] The respondent Repatriation Commission relied upon this line of authority as offering one reason why the appeal against the judgment below should be dismissed.
[13] The learned primary judge was plainly alive to the importance of the requirement that there be a question of law: see in particular para 41 of his Honour's reasons for judgment and the reference to Birdseye. At the time, 0 53 r 3(2) of the (now former) Federal Court Rules 1979 (Cth) required that a notice of appeal separately specify the question of law raised by the appeal and the grounds relied upon in support of the order sought on the appeal. In Birdseye at [18] Branson and Stone JJ drew attention to this rule and to a resultant expectation that the grounds specified in a notice should form a link between the specified questions of law and the orders sought. In effect, the grounds should detail why it is that the nominated questions of law should be answered in a way which entitles the applicant to the orders sought.
[14] The learned primary judge scrutinised the grounds which Mr Rana had specified in his notice of appeal to the end of determining whether there was any such link and also to the end of determining whether, read as a whole, a question of law was in substance revealed by the notice ...
[15] The end result of his Honour's scrutiny of these grounds were conclusions that Mr Rana's appeal from the Tribunal raised no question of law but was, instead, an impermissible endeavour to have the court to review on the merits the question of his pension entitlement. In so concluding, his Honour stated (at [88J-[89]), “This was a case quintessentially which had to be decided upon its facts. The Deputy President addressed all of the relevant evidence and decided the case factually adversely to the applicant ...”
Federal Magistrate Jarrett also stated that he agreed with Halligan FM in LDME v JMA and referred to paragraph 8 from that case:
“8. Respectfully, I agree with Halligan FM in LDME & JMA (SSAT Appeal) (above) where his Honour said:
[30] Notwithstanding this ideal, in my view this Court must have regard to the statutory requirement binding it to “proceed without undue formality” and to “endeavour to ensure that the proceedings are not protracted” (s 42, Federal Magistrates Act 1999), reflecting the objects of the Federal Magistrates Court Act (see especially s 3(2)(a) and (b)). The eschewing of undue formality is particularly significant in matters, such as child support matters, where unrepresented litigants are a significant phenomenon. The lack of representation of a s 44 appellant has been recognised in this Court as justifying some amelioration of the usually strict requirement in such appeals for the question of law to be stated in the Notice of Appeal (Burgess v Centrelink and Ors [2006] FMCA 1952 at [5] and [6]).
[31] I am therefore of the view that an unduly legalistic or pedantic approach should not be taken in analysing the grounds of appeal stated in the Notice of Appeal. Especially with unrepresented litigants, the Court must strive to identify from the case presented whether a question of law arises that may justify the orders sought and strive, consistent with the requirements of procedural fairness, to deal with the substance of the case.
[32] Of even greater significance in my view is the guidance the above mentioned cases provide to the Court in deciding a section 110B appeal. They illustrate the analysis and process of reasoning required in deciding such an appeal.
[33] Thus, of relevance to s.110B appeals in my view are cases on s.44 appeals in relation to:
what is a “question of law” (for example, Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287; Collector of Customs v Agfa-Gevaert Ltd (1996) 196 CLR 389 at 394-399; Repatriation Commission v Hill [2002] FCAFC 192 at [59], (2002) 69 ALD 581; Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 at [6] – [8], (2003) 131 FCR 28, 37 AAR 309); Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 at [45] and [46] per Branson J, (2003) 202 ALR 450, 47 ACSR 649; Hartnett v Migration Agents Registration Authority [2004] FCA 50 at [50])
the centrality to the appeal on a question of law and its impact on the nature of the proceedings (for example, Birdseye above at [10] to [22] per Branson and Stone JJ, (2003) 76 ALD 321, 38 AAR 55: Saxby Bridge, above, at [107] per Jacobsen and Bennett JJ; Comcare v Etheridge above at [13] and [14] per Branson J, with whom Spender and Nicholson JJ agreed; Brown v Repatriation Commission [2006] FCA 914 at [7]);
the necessary connection between the question of law raised on an appeal and the relief sought (for example, Birdseye, above, at [18] per Branson and Stone JJ; Saxby Bridge, above, at [47] per Branson J).”
Federal Magistrate Brown, in Tasman & Tisdall [2008] FMCAfam 126, summarised issues as being:
“36. The nature of an appeal to this court from a decision of the SSAT is governed by the provisions of Division 3 of Part VIII of the Child Support (Registration and Collection) Act 1988 (“the Registration Act”), in particular section 110B which reads as follows:
“110B 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.”
37. This court is authorised to hear such appeals from the SSAT by virtue of the provisions of section 110E of the Registration Act. Pursuant to section 110F of the Registration 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.
38. I do not have the explicit powers necessary to give effect to the first two orders sought by the appellant in his notice of appeal. In any event, the gravamen of the appellant’s case is that the decision of the SSAT should be set aside.
39. It also seems to be his case that the SSAT has fallen into legal error by reaching the conclusion that the respondent has believed, on reasonable ground, that her actions in assuming responsibility for the care of M were necessary to protect M’s health and safety.
40. 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.
41. 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.[3]
42. 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,[4] as it is only in “exceptional circumstances” that the decision of the Tribunal should not be the final decision.[5]
43. It is the function of this court to determine whether the decision of the SSAT was within its legal powers. That is what is meant by a question of law. It is not the function of this court to examine the merits of that decision. 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”. [6] 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.
44. An administrative tribunal exceeds its powers and thus commits a jurisdictional error, which is correctable on appeal in respect of a question of law, if it:
· 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.[7]
· 45. As Gleeson C.J. pointed out in Re Minister for Immigration & Multicultural Affairs: Ex Parte Applicant S20/2002[8]:
“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.”
From the decisions it can be seen that there is a first step, which is to identify a question of law. Then a determination has to be made, if such a question is identified, as to whether the decision will be set aside. The authorities have held that some questions of law are not of that quality whereby the decision is affected or ought be set aside.
The question of law to be identified must be apparent even if an unrepresented litigant has not been able to state with precision the question of law upon which the appeal should be decided.
It is on that basis that I will attempt to understand the appellant's case, in order to determine whether he has identified questions of law pursuant to s.110B of the Act in each of his grounds.
Both respondents submit that no such question has been identified in any of the grounds, or that if there is, such would not cause the court to exercise a discretion to overturn the Tribunal decision.
I will also identify that the fact-in-issue, identification of a question of law, was referred to an error of law by all parties. Such is merely a short hand reference and each party identified the operative provision of the Act, s.110B. As both parties are practising lawyers, such reference is acceptable because there was no mistake in what they were addressing.
It is relevant to understand the appeal to refer, by way of brief outline, to the structure of the decision under appeal.
The Tribunal was constituted by two members.
The Tribunal decision gives the relevant information as to the circumstances of the child X in the care of the parents, spending 63 percent of time with the mother. It states the administrative assessment periods and the adjustable taxable income of the parents; gives a history of the respondent mother’s departure application; the appellant father’s departure application; the appellants father’s cross-application for a departure from an administrative assessment; the case officers’ consideration for the applications and cross application; the objection by the appellant, the new departure application (15 July 2011); the senior case officer’s refusal of that; the appellant’s objection to that decision; the disallowance by an objection officer; the application then to the Tribunal; a further a disallowance by an objections officer to the objection lodged 15 August 2011; a further appeal to the Tribunal and the Tribunal’s decision to hear both applications together.
The reasons then refer to the material, that is the evidence, relied on being the documents from the Child Support Agency; further material supplied by the appellant and the respondent; the legislative framework – important because the appellant takes issue with the application of the law to the facts; and a reference to the case of Gyselman & Gyselman (1992) FLC 92 -279 because special circumstances were at issue and then the evidence.
The reasons have various headings taken from the legislation and referring to required considerations, such as a reference to whether a departure would be just and equitable, the circumstances applicable to each parent, the assets and liabilities of each parent, each parents household expenses and whether a change of assessment is proper. Under each heading reasons are given which is the Tribunal’s decision-making process.
I will state the grounds in full and separately in determining whether a question of law is stated or identified.
I will treat ground's one and two together, because that is how the appellant addressed me.
Ground one states: “1. The members of Social Security Appeals Tribunal (“SSAT”) at the SSAT hearing on 12/12/2011 erred in that they ought have disqualified themselves from the hearing because of disqualifying bias" and Ground two states: 2. The SSAT erred in that it did not afford the Applicant procedural fairness and natural justice. Similar to the circumstances in PJ v Child Support Registrar (SSAT Appeal) 2007 FMCAfam 829."
The manner in which these were drafted did not immediately show they were related.
The appellant submitted that the Tribunal should have disqualified itself because of bias. He arrived at that conclusion because he claimed he was not afforded procedural fairness, thus can be seen his supposed link between his grounds one and two.
The appellant’s case on these two grounds was further divided into various alleged factual situations not necessarily connected to each other but each claimed to give rise to either a bias or a lack of procedural fairness.
He said he was given telephone notice only a day before the review that his two cases would be heard, and that he had not received documents pursuant to s.93(2) from the Child Support Agency and so he was denied the basic right to be heard about those documents. He referred to the wrong section, it should be a reference to s.95 of the Child Support (Registration and Collection) Act.
Section 95(2) requires the Principal Member of the SSAT to give written notice of a hearing and s.95(3) requires the Registrar to supply documents to the SSAT and to the parties upon which the Child Support Agency's decisions were made when a review is lodged with the Tribunal.
Many of the submissions, when asked to identify the question of law, became confusing, although the issue of written notice not being given pursuant to the Act was very clear.
On that issue, the appellant submitted that he was simply not given time to prepare and he links this to allegedly not receiving documents pursuant to s.95(3).
He submitted that was denied a basic right to be heard and to submit documents in relation to the second application he had made to the Tribunal.
But he also stated in written submissions that the conduct of the Tribunal members "in their exchanges with the applicant as noted in the transcript" would lead a fair minded person to apprehend a bias against him.
I was not taken to the transcript, and I was never sure on his explanations, which I kept asking him to make as to the appeal, whether this claim of exchanges was part and parcel of not allegedly receiving documents.
However, the case is not based on the transcript, in the light of the lack of particulars as to "their exchanges", it appears to be otherwise based on conduct of not allowing the appellant time to read and respond to material from the Child Support Agency, and that would raise the apprehension of bias.
The explanation of bias in legal terms was just incomprehensible.
It went as far as submissions to the effect that documents provided to the court for the purposes of the appeal should be considered as a communication to a party in the absence of the other party. The appellant traverses this at page 45 of the court transcript. The court is not a party. I could not understand this and some other submissions as having a legal basis.
I also ascertained that at no time did the appellant ask the Tribunal members to disqualify themselves.
While a Tribunal should disqualify itself for an apprehended bias, if the Tribunal does not and cannot raise a bias issue itself, then there must necessarily be an application, supported by grounds. The appellant said he never asked the Tribunal to step aside for a bias, because he did not know he would have to at that stage, which I suppose could be a set of circumstances which the court is asked to rule on at a later stage.
He then connected this alleged bias with lack of procedural fairness.
The appellant's ground two states: "The SSAT erred in that it did not afford the Applicant procedural fairness and natural justice. Similar to the circumstances in PJ v Child Support Registrar (SSAT Appeal) 2007 FMCAfam 829."
I had no written submissions as to the reference to the case and I had to ask him what he meant. It was not until much later I got his explanation of a reference to that case, being at page 58 of the court transcript: "the way the facts were applied to the law, whether or not that process was adequate, whether or not – and then just looking at those five items in Tasman &Tisdale, you know, we’ve run through them and asking those questions in relation to the SSATs application of the facts to the legislation. So just running through them, you know, have they failed to construe the correct legislative provisions applicable, have they identified the wrong issues, have they ignored relevant material, have they failed to accord procedural fairness, have they made a finding of such – erroneous finding of such a magnitude that it goes to the very jurisdiction which it purports to exercise?"
In working my way through this manner of making submission, I was attempting to understand the appellant's explanation of a question of law arising, and especially how his claim that he was given inadequate notice of the pre-hearing of his second matter before the Tribunal was linked to the claim that he did not receive documents pursuant to s.95(3) of the Collection Act.
The appellant's submission was that he was not given enough notice of the pre-hearing date and did not receive the documents so he could not respond.
It is not in dispute that such documents usually refer to what the parties have supplied at various times and files and notes from the Agency.
What has occurred has to be constructed from evidence.
The evidence of Ms S, which the appellant objected to the court receiving, is relevant to the issue of whether the appellant received the documents. She states:
"2. I make this affidavit from my own knowledge and from information and belief based on my examination of the records held by the Registrar ("the records").
……
7. On 16 August 2011 the Applicant applied to the Social Security Appeals Tribunal ("SSAT") against the substantive decision.
8. On 13 September 2011 the Registrar sent the document pursuant to section 95(3) of the Collection Act relevant to the substantive decision to the SSAT and the parties.
……
10. On 1 December 2011 the Registrar sent further documents pursuant to section 95(5) of the Collection Act in relation to the substantive decision to the SSAT and the parties.
……On 8 December 2011 the Registrar sent the documents pursuant to section 95(5) of the Collection Act in relation to the refusal decision to the SSAT, the Applicant and the First respondent.
Annexed hereto and marked "G" are the covering letters to the SSAT and the parties dated 8 December 2011".
By being sent, I assume that they were posted, because the Act only specifies the documents be sent.
While I cannot make a decision on whether the appellant received the documents or not, there is no issue between the parties that the appellant put the Tribunal on notice that he had not received the documents, but also that he was given extra time, seven days, to make further written submissions on any of the documents.
The evidence of the Tribunal transcript is also relevant to this aspect.
His response to the Tribunal member who said time would be allowed, was "fair enough", as can be seen in the transcript.
He then raised the issue in this appeal, however, two facts are apparent. Firstly, the Tribunal extended extra time to the appellant to make submissions on the documents, if he identified issues in them, and secondly, there is evidence that the documents were sent to him.
That provides a dilemma as to his case, so I pressed the appellant to address me on the law because he referred me, simply, to the case of PJ & the Child Support Registrar (SSAT Appeal) [2007] FMCAfam 829, without referring to the principles he wanted me to examine.
He did not.
He simply stated that in not supplying the documents, such comes into the area of apprehended bias – “that led to inequality, a prejudice and a bias of the SSAT towards me because I was not given opportunity to respond to material”. He said the Tribunal prejudged the matter.
When asked to identify in the transcript this pre-judgment, he said a comment that the documents related to his other application, without allowing him to see the documents, amounted to pre-judgment. He referred me to the transcript about hearing the two matters together because it was all about a change of assessment.
He then took me to bias and the view of the reasonable person, referring me to Johnson & Johnson [2000] HCA 48.
As I said his argument had many facets. There were other claims he pursued along this line.
I am not going to go to all claims, but I will refer to some.
He claimed that the Tribunal concluded the company books were not legitimate. He said it was that:
“It is clear from the transcript that the SSAT did not advise me, the appellant, that it did not accept the company expenses as legitimate business expenses and as a consequence it tended to calculate the appellants child support income by including various expenses as personal expenses. It was not reasonable for the appellant to have anticipated the SSAT might come to a view that the company accounts were false and that various expenses claimed by the company would there fore be treated as income available to him”. He said he was denied the opportunity of being heard.”
In my reading of the Tribunal decision, at paragraph 42, the Tribunal states that the appellant is the sole income earner from his company, which is being used to meet personal expenditure, and such is considered a financial resource for child support purposes. At paragraph 40 the Tribunal refers to how the appellant explained his taxation returns and at paragraph 41 concludes that bank statements show regular deposits, so his claim that he had no income was incorrect. It also records his explanation of trying to show in tax returns there was no profit. It concludes that the appellant had not provided financial statements to verify his claims. That is far short of concluding books were not legitimate. At paragraph 65 the Tribunal states:
“65. Given the absence of any financial statements or correctly completed tax returns for Mr Redmond’s company and the intertwined nature of his business and personal expenditure in his bank statements, it is extremely difficult for the Tribunal to determine with any accuracy Mr Redmond’s capacity to pay child support. However, given his ability to meet his significant personal expenses from his company income, the Tribunal is satisfied that he had the capacity to meet such assessments during the relevant periods. The Tribunal is also satisfied he has the capacity to meet such an assessment (including a small increase to account for the 2012 school fees) on an ongoing basis.”
It seems to me that the Tribunal is just stating facts as they exist, without any allegation of falsehoods but it is a factual issue only.
Another claim was that he was not given opportunity to provide subpoenaed material to the Tribunal.
And another that he was denied procedural fairness because he requested the respondent mother to provide copies of credit card statement to verify her claims, and the Tribunal did not make a direction for her to do so.
The submissions jumped from subject to subject.
At one point the appellant refereed me generally to my decision in Urquhart & Urquhart & Anor (SSAT Appeal) [2011] FMCAfam 1453, but his submission was impossible to follow, as can be seen from page 45 line 20 of the court transcript: "All right. In relation to the procedural fairness of the law we .....briefly into section 103A of the Child Support Registration Collection Act which the SSAT is a member. Now, what I’m saying there is there’s that case that you decided, your Honour, which is Urquhart & Urquhart." He then said the Tribunal proceeded to a hearing without the power to do so, because it did not follow a section with regard to supplying documents.
In asking for an explanation as to the question of law arising, he merely referred me to the Tasman & Tisdall passage, stating we do not know all the facts of the case and he then said the decision was “grossly incorrect”.
I gathered that merely because the appellant claimed he stated these were alleged errors, or questions of law, that was enough.
Mr Bishop, for the Registrar, submitted that it appeared the case was one of unreasonableness, but the unreasonableness to be established would have to be at an extremely high level, the concept of unreasonableness not being referred to in any detail by the appellant.
I informed the appellant I was having difficulty following his claims and he then immediately referred me to Bedell & Kastens & Anor (SSAT Appeal) [2010] FMCAfam 1250“where they advised that that issue was determined to be an error of law”.
The line of reasoning from the appellant appeared disjointed and not helpful in understanding mere compliant from a question of law arising.
Keeping in mind his issues that he was denied time to respond to documents he had not received, the question of whether the time was reasonable is a question of fact.
Section 103A stipulates notification of hearings be in reasonable time.
However, the Tribunal undoubtedly, aware of his claim of not having time or the documents, gave him opportunity to make further submissions.
It is not the case that even if the Registrar did not supply the documents, that such provides the basis for a question of law in an appeal here. It is not the case that even if the Principal Member did not give written notice, that such provides the basis for a question of law in an appeal here, because the Tribunal dealt with his claims by giving him time to make further submissions.
It is not enough to say the documents could hold something of use to his case.
It is not enough because once he was given opportunity to make further submissions on the documents, in my view, he knew the time was running and he had to secure the documents.
The question is whether he was denied procedural fairness. The appellant cannot just sit on his hands and do nothing. He clearly stated he did not receive the documents, he was given seven days to make further submissions but made no attempt to obtain the documents he states he knows he had not received. The onus moved to him from the moment he was given seven days to respond, to respond.
To do so, he would have to make the approach to the Tribunal or the Registrar to obtain the documents.
He has just refused to do any act which would ensure he obtained the documents and then claims a denial of procedural fairness.
It was not the Tribunal which denied him procedural fairness, it was his own acts or omissions which led him to the conclusion that he had not seen the documents, did not have the documents, was not going to request them or identify them and then claim he could not respond to something he did not know about.
So the question of giving reasonable notice is a question of fact and receiving the documents becomes a question of fact, not questions of law.
The appellant did not avail himself of the procedural fairness extended to him by the Tribunal, which it had to do.
I cannot uphold his claim that he was not given time to properly respond.
The appellant is an educated person and he cannot claim he just did not know that he may need to or should take a step to support his own case before the Tribunal.
It is a question of law as to whether procedural fairness has been afforded to a party pursuant to the Act.
This is not an examination of the appellant not receiving documents, it is an appeal in which a claim is made that the Tribunal denied the appellant procedural fairness when alerted to the fact that he had not received all documentation. Unequivocally, the Tribunal gave an opportunity to the appellant to make further written submission on issues arising in those documents.
Apart from not referring to what I will call the mechanics of any perceived error, or in terms of the Act, the question of law which arises, factually, he is claiming that he was not shown documents and although he was given opportunity to make further submissions in seven days, he did not because he said he never received documents. In my view, the appellant does not make out his case, based on a denial of procedural fairness.
No question of law has been addressed.
I will dismiss grounds one and two as not stating a question of law within the terms of s.110B.
Ground three states: "3. The SSAT committed jurisdictional error as defined in Tasman & Tisdall [2008] FMCAfam 126."
That does not on its face raise a question of law, as stated by Mr Bishop referring to Rana v The Repatriation Commission [2011] FCAFC 124, at paragraph 11: “The need for a notice of appeal to specify a question of law is not just a matter of pleading. In the absence of a question of law there is no subject matter for the appeal and the court has no jurisdiction to entertain proceedings”.
In trying to determine what he was really stating, because the respondents also had to know that to respond to this material, he said, “All they have to do is look at Tasman & Tisdall and just do a search for the word error. Bang. It will say what my ground is. It clearly sets out in Tasman & Tisdall what the grounds of jurisdictional error that I was seeking”.
He said if the respondent's went through the hearing, I assume he meant the Tribunal transcript, they could see all of these things applying or not applying.
He said he provided them with his submissions and they could have contacted him if they had problems and asked about his submissions.
He again repeated that the respondents could take a global approach to the decision handed down by the Tribunal as to the particularisation and the five considerations mentioned in Tasman & Tisdall are there.
He then said he relied on all of those statements, which I gather are those I have referred to above in my reference to Tasman & Tisdall.
His written submissions also referred to an alleged statement by Brown FM, supposedly at paragraph 22 that: "It seems clear though that findings of fact, including inferences, may be reviewed to determine whether there has been an error of law". I cannot find any such statement or conclusion in that case.
As to facts, he said the Tribunal did not consider his submissions about the child being sent to (omitted) School because there was no other school in the area providing a pre-prep program and that it failed to consider the effect of withdrawing her from (omitted) School and that she was enrolled at (omitted) College because he had agreed to pay the fees. He then made a statement that the fact that he wants the best in life for the child does not mean that he wants her privately schooled and this was misinterpreted by the Tribunal.
The submission is that all five grounds as identified in Tasman & Tisdall apply here as the raising of a question of law. If that is the case, the appellant has not formulated a question, and as the respondent mother points out, this is merely factual dispute. She referred to Brown FM in Tasman & Tisdall referring to Gleeson CJ's decision in Re Minister for Immigration & Multicultural Affairs: Ex Parte Applicant S20/2002 (2003) 198 ALR 59 that:
“To describe reasoning as illogical, or unreasonable or irrational, may merely be an emphatic way of expressing disagreement with it. If it is suggested that there is a legal consequence, it may be necessary to be more precise as to the nature and quality of the error attributed to the decision maker, and to identify the legal principal or statutory provision that attracts the suggested consequence.”
The appellant has not identified the legal principle, or the nature of the factual mistake the question is said to be raised upon, or the quality of the error, as stated by Gleeson CJ.
That is supported by Mr Bishop's submission, referring to Flick J's decision in Australian Postal Corporation v Hughes [2009] FCA 1057 in respect of the analogous provision within the AAT Act, at paragraph 7:
"The jurisdiction being exercised is…constrained by the requirement that the appeal be 'on a question of law'. In Brown v Repatriation Commission (1985) 7FCR302 at 304, Bowen CJ, Fisher and Lockhart JJ observed in respect to this constraint: 'The existence of a question of law is not merely a qualifying condition to ground an appeal from a decision of the Tribunal; rather it and it alone is the subject matter of the appeal, and the ambit of the appeal is confirmed to it'".
From what he stated, the appellant was submitting that merely putting the ground on paper was a discharge of the onus to identify the question of law, and it was up to the respondents then to show how it was not, particularly with the statements he made from p51, line 15 to p52, line 15 of the transcript of this hearing:
“MR REDMOND: Well, they can look at the global approach to the case and just say whether or not there has been any circumstances in the case that comes within those five considerations in Tasman & Tisdale. If they look through their case and they think, well, okay, there are no grounds for any of those things then they’re quite happy to say, well, no. There hasn’t been any error of law as defined in Tasman & Tisdale. They know what the error of law that I’m seeking to put forward is. They’re put on notice what the error of law I’m seeking - notice is. They’ve got the case in front of them. They can assess whether or not there has been an error of law. If there’s any problem or they need clarification of what that is they’re quite willing to contact me and go through and get further clarification. They did not contact me. I had no advice that they had any problems with that error of law until I received their submissions today.
HIS HONOUR: What do you say, Mr Bishop?
MR BISHOP: Your Honour, again, I would submit that the notice of appeal simply does not identify a question of law to be answered under 110B appeal and I would also refer your Honour to Halligan FM decision in LDME & JMA where his Honour says:
The grounds of appeal called for in the notice of appeal in this court assume the provisions of section 110B –
again, this is at paragraph 24 of our written submissions –
thus in my view the grounds of appeal to be set out in the notice of appeal should be ideally expressed in a way that enables the respondent and the court to identify the questions or questions of law sought to be raised by the appellant and the reasons why a finding for the appellant on that question or those questions should result in the orders sought in the notice of appeal.
There is no way on the basis of the notice of appeal filed by the applicant that the respondents were in a position to be able to answer those statements raised within his notice of appeal and in addition he was provided the opportunity to amend his notice of appeal to be able to redraft that notice of appeal to ask a question and did not do so.
HIS HONOUR: When I raised this issue, and I raised it specifically and made the order so that you would be on notice that my original perusal didn’t, 5 to my mind, reveal an issue of law, an error of law, being properly identified. There’s no set way of doing it but it has to be done so that no-one is under any apprehension about what is being agitated but you say what you have done in each and every ground is sufficient.
MR REDMOND: It’s sufficient, your Honour. I use these grounds – they’ve been grounds that have been used in many cases before and I’ve got quite a number of authorities - - -
HIS HONOUR: Well, no, I’m dealing with your case.
MR REDMOND: I know. I’ve got authority to back up those grounds, your Honour.
HIS HONOUR: We’re dealing with your case.”
That does not show what was required to be shown as stated in Birdseye, that: “the grounds specified in a notice should form a link between the specified questions of law and the orders sought. In effect, the grounds should detail why it is that the nominated questions of law should be answered in a way which entitles the applicant to the orders sought.”
There is no way for the respondent's to know exactly what the appellant is stating is the question of law in such a wide ranging set of submissions he has made. They cannot take a global approach as he put it, because that is not allowable in a case such as this. It is meaningless.
Despite the appellant being a (occupation omitted), I have attempted to identify it, and repeatedly throughout the hearing I asked him to address this vital, fundamental issue.
I cannot determine on the material that he has raised such a question.
I will dismiss ground three as not stating a question of law within the terms of s.110B.
Ground 4 states: "4. The SSAT erred in that it did not sufficiently determine the Applicant’s and Respondent’s “financial resources” available to the parties pursuant to section 98L(1)(a) and 117(4) of the Child Support (Assessment) Act 1989 (Cth) and the case of PJ v Child Support Registrar (SSAT Appeal) 2007 FMCAfam 829 and Tyagi & Meares (SSAT Appeal) [2008] FMCAfam 886."
Again the respondents and the court are faced with a statement that the Tribunal erred, with a reference to sections of the Act and to three cases.
It is not an uncommon claim in these matters to challenge the Tribunal’s assessment and decision of financial resources available under s.117 of the Child Support (Assessment) Act1989.
On its face that does not pose a question of law, it simply raises a factual situation. It is unclear from reading the ground as to what the appellant wants considered under the two cases listed.
Factually, the appellant stated that the Tribunal refused to consider $50,000 received by the respondent mother from her parents for legal fees as income or a financial resource "which begs belief". He said she told the Tribunal she would pay the money back from her property settlement, without proof and the Tribunal took her word for that.
In oral submissions, the appellant simply said the Tribunal erred in the way it assessed it, meaning financial resources I assume, and that not sufficiently determining these matters was an error of law, see page 57 of the transcript of this proceeding. He then said the Tribunal "fell short of the requirements of s.98L and s.117(4)”. I do not understand what he meant by the Tribunal not "sufficiently determining" matters. That does not make sense. Either a matter is determined or it not. His response to that was to refer me to his written submissions.
The respondent mother referred me from page 8 of the decision, where the Tribunal stated it must consider s.117(4) and set out the section, then goes on and refers to the evidence it considered over the next seven pages. Paragraph 34 and 35 refers to consideration of s.117(4), (6) and (8), with the Tribunal stating it will only go to relevant matters.
No irrelevant matter was referred to by the appellant and no matter which ought to have been considered is stated by him, other than his vague reference to an amount of $50,000.
I also noted paragraph 65 of the decision where the Tribunal found that there was an absence of financial statements or correctly completed taxation returns for the appellant's company and so it was difficult to determine with accuracy his child support capacity. But the paragraph also states that he has the ability to meet significant personal expenses from his company income – so in fact stating that his financial resources were not given sufficient determination, whether under named sections of the Act or not, is arrant nonsense. The Tribunal gave careful consideration to the case presented by the appellant and the documents he supplied to it.
There is a lot of evidence referred to by the Tribunal.
Mr Bishop for the Registrar submitted that the appellant's written submission itself admitted these issues were before the Tribunal, so they must be considered issues of fact which do not raise a question of law within terms of s.110B.
I agree.
I will dismiss ground four as not stating a question of law within the terms of s.110B.
The first ground 5 states: “5. The SSAT erred in that it did not sufficiently consider the Applicant’s “necessary commitments” pursuant to section 117(2)(a)(iii) of the Child Support (Assessment) Act 1989 (Cth) and the case of In Marriage of Gyselman (1991) 103 FLR 156.”
As to ground 5, the appellant’s oral submissions became incomprehensible. This is the transcript recording, which I recall as being correct.
“MR REDMOND: Okay, ground 5. So ground 5 we’re looking at necessary commitments, the legislation case is notified there. So the issue with that one is whether or not the SSAT sufficiently looked into material provided to the SSAT which showed that I needed - - -
HIS HONOUR: Yes, well - - -
MR REDMOND: I just put down there “tools of trade”.
HIS HONOUR: Well, we come back to this qualification - - -
MR REDMOND: Yes.
HIS HONOUR: - - - “sufficiently”.
MR REDMOND: Okay, well sufficiently - - -
HIS HONOUR: I mean, did they – you know, so - - -
MR REDMOND: If you were – how you want to define - - -
HIS HONOUR: I’ve raised the issue with you - - -
MR REDMOND: Okay, well, how you want to define it? You could define it as not adequate, not meeting the grade, insufficient.”
His written submissions state the Tribunal did not consider his expenses and failed to give weight to his necessary commitments such as a replacement of tools of trade, such urgent vehicle repairs, equipment replacement, necessary on-going training to maintain employment. He said these costs were ignored.
The respondent mother referred again to paragraph 34 on page 8 of the decision where the Tribunal set out s.117(4), which was the roadmap for it to follow and at paragraph 56 the Tribunal referred to the appellant’s personal and house expenditure and concluded that some of the items claimed were expenses listed as business components. She also said pages 41 to 74 of the transcript reveal the Tribunal considering this aspect of the legislation as it applies to the case. That was not challenged. Given what I stated and quoted from paragraph 65 of the reasons, the onus fell to the appellant to provide financial information, which the Tribunal found fell short of what was required.
Mr Bishop for the Registrar submitted that s.98C of the Assessment Act required the Tribunal to establish one or more of the grounds to depart, such was found pursuant to s.117(2)(b)(ii), and so this is a question of fact, misconceived by the appellant as a question of law.
In my view, the Tribunal states the evidence it relies on and comes to a decision. That is what it must do. It is clear that it set out the section it referred to and considered what was relevant, with no challenge to considering irrelevant matters. The challenge, the question of law said to be raised, is that the Tribunal did not sufficiently consider the necessary commitments. Either the necessary commitments were considered or they were not. They were considered on the evidence available and specifically the evidence made available by the appellant to which the Tribunal refers at paragraph 65 of its reasons. If the appellant means that the Tribunal failed to give reasons, that is a different matter, although I did not gather he was stating that on the first ground 5. In any case, if there was the absence of his financial statements and incomplete tax returns, such as is stated in the reasons the Tribunal only has to state this once to understand its decision and how it was made. The language used is clear.
I will dismiss the first ground five as not stating a question of law within the terms of s.110B.
The second Ground 5 states: “That the SSAT erred in their assessment of "special circumstances" of the parties pursuant to s.117(2) and s.98C of the Child Support (Assessment) Act 1989 and the case of In Marriage of Gyselman(1991) 103 FLR 156.”
I will note that not only did the grounds have a numbering mistake, so did the written submissions, the appellant referring to this as ground 6. I only state that because I am aware that I do not want to confuse his submissions.
The appellant's written submissions state the Tribunal failed to take into account the "GFC", the Queensland floods and on another issue failed to consider that there was no evidence of the applicant ever signing a school enrolment form and that such was quite possibly forged by the respondent mother.
In oral submissions he said there was quite a lot of information before the Tribunal which the Tribunal did not mention in its decision, such as the state of the economy.
The first respondent states that the Tribunal took account of what it had to – the necessary commitments of the parties, evidence I have referred to above.
Mr Bishop for the Registrar submitted that the appellant misconceived this ground as he did with the previous ground.
All I was told by the appellant was that there was quite a lot of information before the Tribunal about the state of the economy and this was not mentioned. I was not taken to the transcript by the appellant, but if he was merely making claims about the economy which were general, or not supported by expert evidence, then it would be a matter which the Tribunal very possibly would not consider, because it should not take irrelevant matters into account. However, the Tribunal in its reasons have referred to the circumstances of these parties and referred to the Gyselman case and its formulation of special circumstances.
From paragraph 63 there is a heading ‘Further consideration’ of the matter and again I refer to paragraph 65, which is crucial to an understanding of the Tribunal's assessment of the appellant’s financial material which he relied on and which he wanted the Tribunal to consider, knowing that the Tribunal would consider the special circumstances. It considered the material as he presented it.
As to whether the Tribunal considered whether the respondent mother forged his signature on a school enrolment form, the Tribunal simply states the appellant does not recall signing the document. There is no mention of the allegation of fraud and I was not taken to the transcript to determine whether this is a special circumstance.
I intend returning to this issue of alleged forgery.
I will dismiss the second ground five as not stating a question of law within the terms of s.110B.
Ground 6 states: “The SSAT erred in finding that it was satisfied that it was “just and equitable” or would not cause “hardship” to depart from the administrative assessment for the purposes of ss.98C, 98K and 98L and 117(4) of the Child Support (Assessment) Act 1989 (Cth, having regard to the income, property and financial resources of the Applicant.”
Properly viewed, this appears to be stated as a question of fact, with references to various sections of the Assessment Act thrown in.
As a question of law, the appellant's submission was that he had provided evidence to the Tribunal showing his financial circumstances had deteriorated significantly, yet this was not taken into account. He referred me to the s.110K documents as proof.
But that is not proof of his claim and misconceives the fact that under s.110K documents are sent to the court which were before the Tribunal and which are considered relevant.
The first respondent submitted that in the Tribunal reasons from paragraphs 32 to 34, the Tribunal addresses the just and equitable component of it decision-making and it considered income, property and financial resources.
Mr Bishop for the Registrar also states that evidence of the circumstances of both parties was before the Tribunal.
I come back to the finding at paragraph 65 about the state of the material the appellant relied on. He did not put financial statements or properly completed tax documents before the Tribunal, but the Tribunal was otherwise able to be satisfied that he could meet significant personal income from company earnings.
There also seems to be some challenge to the fact that the Tribunal, although it addressed some matters, did not do so in some lengthy fashion. I read the reasons, I read paragraphs 32 to 34, and it appears to me that the Tribunal has expressed itself clearly and does not need to keep repeating matters as some sort of bolster to its decision.
This is a purely factual matter, with no question of law being identified.
I will dismiss ground six as not stating a question of law within the terms of s.110B.
Ground 7 states: “The SSAT erred in finding that it was satisfied that it was “otherwise proper” to depart from the administrative assessment for the purposes of ss.98C and 117(5) of the Child Support (Assessment) Act 1989 (Cth).”
In written submissions the appellant simply states that he does not have the funds to pay private school fees and it is not otherwise proper for the government or community to pay for private schooling for his child. He seems to base this on the state of affairs regarding his family tax benefit entitlement, which the Child Support Agency has garnisheed to pay for school fees. His case was that the Commonwealth then pays for his child’s school fees and in oral submissions he posed the question relating to that state of affairs "well what sort of decision is that?".
The respondent mother submitted that this was a challenge to the factual finings, and a question of law was not identified.
Mr Bishop for the Registrar submitted that the Tribunal made a decision on the evidence before it.
The Tribunal gives its reasoning for what it identified as being otherwise proper for its decision. The question posed by the appellant is a moral question and related to his view of the world. There is no question of law raised and is an example of a formula being stated in the ground which in itself is not explained by submissions.
I will dismiss ground seven as not stating a question of law within the terms of s.110B.
Ground 8 states: “The SSAT erred in the conclusions reached in that they were not reasonably open to be made on the material available.”
This is a challenge to an alleged statement of the respondent mother to the Tribunal about what she intended to do with money to be received from an alteration of property interests. It is mixed with other assertions that the Tribunal failed to take into account that the mother did not draw wages or salary from his company and that expenses incurred by her were a loan. He states in his written submissions that: "Evidence was provided to the SSAT in this regard, but was not taken into account by the SSAT". He then goes on to say there was no logical basis for a determination regarding $50,000 as being personal expenses of himself. In oral submissions he simply referred to the Tasman & Tisdall case and that "… we’re looking at the evidence before the SSAT and the determinations which were made and whether or not they came to such decisions that were – well, ludicrous, or whether they could be possibly made."
The first respondent submitted that the Tribunal had about 286 pages of exhibits from the parties, heard sworn oral evidence and had the Child Support Agency's statements and documents from objections and reviews. She said the Tribunal directed the appellant to supply more documents, so it must have considered the material already before it. She said pages 17 to 83 of the transcript show that the Tribunal examined the claims made by the parties in detail. This assertion was not challenged.
Mr Bishop submitted it appeared the appellant was attempting to raise a ground of unreasonableness, but he failed to construct a case to show that the decision was so unreasonable that no logical, reasonable and rational decision-maker would make such a decision. He stated that the appellant had not referred to evidence or reasoning to meet the very high burden of establishing that the decision was unreasonable.
How the appellant runs his case is up to him. He was not able to take me, in a clear and logical manner to statements which would show unreasonableness. Merely stating that the decision was ludicrous does not meet the test.
I will dismiss ground eight as not stating a question of law within the terms of s.110B.
Ground 9 states: “That the SSAT erred in not providing adequate reasons to explain their decision.”
The appellant’s argument here was that sufficient reasons were not provided to adequately determine with any degree of accuracy how the Tribunal determined his income at $50,000 and that he would only be $700 worse off.
The first respondent submitted that the Tribunal stated the law and the evidence relied on before coming to its decision.
Paragraphs 45 to 48 explain in detail how the Tribunal arrived at its findings. I will reproduce them:
“45. In his Statement of Financial Circumstances dated 24 August 2011, Mr Redmond declares household expenditure totalling $937 per week and health insurance premiums of $30 per week. This does not include credit card repayments as they relate to previous similar expenditure which should not be double counted. This expenditure totals about $50,000 per annum.
46. Mr Redmond told the Tribunal that his company turnover was about $120,000 per annum. This is consistent with the Business Activity Statements available to the Tribunal and the Tribunal accepts that is so.
47. The credit statements show that on average about $6,000 per month in purchases is incurred and then paid off when due. This equates to about $72,000 per annum. As mentioned previously, this expenditure is partly business related and partly personal. If Mr Redmond is spending $50,000 per annum on personal expenses as he declares, then about 70% of his total expenditure is personal and 30% business related. Whilst it was determined after an examination of Mr Redmond's Statement of Financial Circumstances that some of the household expenses listed in fact included business expenses, the Tribunal from an examination of Mr Redmond’s expenditure in his credit card statements, and in the absence of any of any other evidence in this regard, the Tribunal is satisfied that $50,000 per annum is a reasonably accurate reflection of his actual business and personal expenditure.
48. To have a net income of $50,000 per annum to meet his personal expenses, Mr Redmond would need to receive a gross income of about $60,000 per annum. This equates to about half the turnover of the company. Given Mr Redmond operates his business from home, the Tribunal finds that provides a more than reasonable accommodation of his business related expenses. The Tribunal finds that $60,000 is a fair reflection of the income Mr Redmond is effectively receiving from the company by way of payment of his personal expenses.”
The Tribunal exercises the jurisdiction as stated in the Act. It is legislatively capable of and may come to an assessment of capacity based on the cases parties run before it. I again refer to paragraph 65 of the reasons where the Tribunal states that in the absence of any financial statements or correctly completed tax returns, it was difficult for the Tribunal to determine with accuracy the appellant’s capacity to pay child support. It then immediately stated that on the material he could meet significant personal expenses from his company. It is a measure of the Tribunals assessment of the appellant’s capacity.
Even if all or some of the figures were incorrect, such is not necessarily the opportunity to raise a question of law, however, that is not the claim, the claim is that there were inadequate reasons. In my view it is purely a factual question, paragraphs 45 to 48 stating how the Tribunal arrived at the figures and paragraph 65 mainly findings on documentation supplied by the appellant.
I will dismiss ground nine as not stating a question of law within the terms of s.110B.
Ground 10 states: “The SSAT erred in failing to have regard to relevant material available and considerations in the making of the findings that they did.”
This ground goes to the Tribunal not examining his business expenses combined with a challenge to the findings about the respondent mother's resources, being $50,000 from her parents to meet legal costs, which the Tribunal did not consider as her income.
The appellant referred to the transcript stating that he raised issues as to business expenses and the Tribunal did not consider profit or margins.
Paragraph 47 of the reasons refer to both personal and business expenditure. The Tribunal referred to the evidence it found relevant. and a conclusion was reached in paragraph 47 as to the percentage of his business costs. In fact, again, paragraph 65 shows that the Tribunal was keen to examine what the appellant was putting forward as evidence of expenses.
The ground seems to be a repeat, in a different manner by reference to different factual findings, some previous grounds.
Even if the ground does not recast previous claimed grounds, no question of law is posed in the manner the case was presented, an essential undertaking to challenge administrative decisions under the child support acts. This is purely a factual complaint.
I will dismiss ground ten as not stating a question of law within the terms of s.110B.
Ground 11 states: “That the SSAT made significant errors in assessing the costs of the child on the material available.”
The bare statement raises a question of fact, not a question of law. Referring to significant errors does not pose a question of law.
The explanation given attacks the Tribunal’s decision for allegedly not verifying the respondent mother’s claimed costs in relation to the child.
In fact I was taken to the decision and paragraphs such as 49, referring the respondent mother’s income, paragraph 57 which refers to her expenditure, paragraph 58 which refers to her rent.
The respondent mother said she gave evidence under oath as to her costs.
Mr Bishop for the registrar submits that this alleged ground is nothing more than a reconsideration of factual matters over which the court has no jurisdiction.
Even if the Tribunal made errors on evidence before it, and these are not particularised, that is not a matter which comes before the court under s.110B, as I would merely be substituting my calculations and view of the evidence for that of the Tribunal.
I will dismiss ground eleven as not stating a question of law within the terms of s.110B.
Ground 12 states: “The SSAT in determination of the level of child support payable by the Applicant, erred in that they did not determine adequately, having regard to its own findings of the respondent’s own expenses, liabilities, financial resources and necessary commitments, or without regard to the level of hardship, what actual capacity the Applicant had to contribute out of his income for the support of the child under section 117(4) and section 98C of the Child Support (Assessment) Act 1989 (Cth) and the case of In Marriage of Gyselman (1991) 103 FLR 156.”
This is a wide-ranging catch all ground, again not stating a question apparent on its face and simply referring to sections and a case.
There was no attempt to explain the question of law raised, but there were statements of what the Tribunal did not do.
The respondent mother refers the court to paragraph 65 and how the Tribunal decided upon the appellant’s capacity. It cannot be doubted that paragraph 65 of the reasons, which I have quoted a number of times now, clearly and unequivocally sets out the issues relating to the appellant's capacity.
The Tribunal made findings of fact.
I will dismiss ground twelve as not stating a question of law within the terms of s.110B.
Ground 13 states: “The SSAT’s erred in its decision to set the Applicant’s adjusted taxable income at $60,000 for the period 1 January 2012 to 31 December 2012 and apply the child support assessment formula as the approach is inconsistent with its own determination for a departure from the child support assessment formula pursuant to “special circumstances” under section 117(2) and section 98C of the Child Support (Assessment) Act 1989 ) (Cth) and the case of In Marriage of Gyselman (1991) 103 CLR 156.”
This part of the appellant's case was based on the finding at paragraph 65 as I understood his submissions. He said the Tribunal could not be sure of the split between business and personal expenses and then stated he had $50,000 in personal benefits.
He said this was a conclusion not reasonably open.
He quoted the names of more cases and did give some reference to statements in cases.
The first respondent said she could not understand the submissions and Mr Bishop for the Registrar said no question of law was identified in the ground.
Actually, paragraph 47 of the reasons assist in this matter:
“47. The credit statements show that on average about $6,000 per month in purchases is incurred and then paid off when due. This equates to about $72,000 per annum. As mentioned previously, this expenditure is partly business related and partly personal. If Mr Redmond is spending $50,000 per annum on personal expenses as he declares, then about 70% of his total expenditure is personal and 30% business related. Whilst it was determined after an examination of Mr Redmond's Statement of Financial Circumstances that some of the household expenses listed in fact included business expenses, the Tribunal from an examination of Mr Redmond’s expenditure in his credit card statements, and in the absence of any of any other evidence in this regard, the Tribunal is satisfied that $50,000 per annum is a reasonably accurate reflection of his actual business and personal expenditure.”
The court was not told in submissions in plain language how any inconsistency arose but factually, the Tribunal held that the appellant himself declared his $50,000 of personal expenditure, which is a benefit. His recorded declaration as to this personal expenditure was not challenged.
Mr Bishop for the Registrar stated the approach by the Tribunal was correct according to law.
This is a factual issue only.
I will dismiss ground thirteen as not stating a question of law within the terms of s.110B.
Ground 14 states: “The SSAT erred in its assessment of the level of personal benefits the Applicant received from their business, and the manner in which the Applicant met his personal expenses.”
The argument here is that there was no sufficient assessment of the level of benefits obtained from the appellant’s business and that the decision was not supported by evidence. Also, the appellant states that the Tribunal erred in its assessment of his personal credit cards being used to pay business expenses and there were no company credit cards because these were not available. As incoherent as this is, and introducing another ground I suspect in written submissions, paragraphs 44 and 47, show conclusive findings of fact as to both personal and business expenditure based on credit card statements. The reasons state in that paragraph that the Tribunal examined the credit card statements to come to its findings. This is just a factual challenge.
I will dismiss ground fourteen as not stating a question of law within the terms of s.110B.
Ground 15 states: “The SSAT erred in its decision in that it came to conflicting and inconsistent conclusions in its decision and its final decision was not open to be made on its own conclusions.”
The court was told of an assumption by the Tribunal, that the appellant's business had over a 50 percent profit margin. It was put that the level of debt was not considered.
The respondent mother said the transcript shows the appellant declared his household and personal expenditure to be $50,000 (a fact I have already referred to previously above) and his company turnover was about $120,000 a year, at page 409, line 28 of the transcript.
The Tribunal had before it that, as well as his credit card statements and that these were paid by the company. There is the useful reference made by the Tribunal to these issues at paragraph 47 which I have reproduced earlier.
I agree with Mr Bishop, it is a question of fact and fact alone.
I will dismiss ground fifteen as not stating a question of law within the terms of s.110B.
Ground 16 states: “The SSAT grossly underestimated the arrears owed to the CSA its decision would create for the Applicant, and consequently the SSAT own decision was based on flawed calculations and assumptions.”
This is not cast as a question of law. It is simply a view of the Tribunal and how it came to it s decision.
The respondent mother states paragraph 57 of the reasons estimates the increase of arrears owed by the appellant to be about $700. Arrears were in fact $2,315.34.
She accepts the assessment was incorrect but that this was not relevant to the departure decision. I agree. It is not an error capable of tainting the whole of the decision. It is an error of fact, not of law and it is inconsequential.
I will dismiss ground sixteen as not stating a question of law within the terms of s.110B.
Ground 17 states: “The SSAT erred in that they did not consider the principals in Mee v Ferguson (1986) FLC 91-716, Lightfoot and Hampson (1996) FLC 92-663 and Wild v Ballard (1997) FLC 92-771 in relation to the ‘special circumstances” determined by the SSAT in relation to the child’s school fees’.”
The submission here was that merely because a person could afford fees or was wealthy was not a reason to impose school fees – Mee v Ferguson (1986) FLC 91-716.
He said he could only contribute to the extent he had capacity.
I do not understand this – it seems to be a ground or submissions cast in the alternative that he was in fact either wealthy or could afford the fees.
That is not how this decision was made by the Tribunal.
The Tribunal found that both parties agreed that the child should be schooled privately.
Then it went through the considerations to determine the capacity.
The Tribunal had ample financial material of the appellant’s financial situation, paragraphs 36 to 48 and a finding at paragraphs 42 and 65 that the appellant was receiving significant resources from his company.
Mee v Ferguson is misquoted to an extent by the appellant, as Mr Bishop points out. What was said was: "Where a non-custodian had agreed to the child attending such a school that is a person liable to contribute to the fees involved so long as and to the extent that he or she has a reasonable financial capacity to continue to so".
He said the Tribunal asked itself the right question, concluded that the parties initially wanted a private school education for the child and then determined the capacity.
I will dismiss ground seventeen as not stating a question of law within the terms of s.110B.
OTHER MATTERS
I now need to comment on the appellant and his claims that he did not know what he was doing.
The court extended to him that procedural fairness applicable to an appellant in his circumstances.
He is a (occupation omitted).
He has the (occupation omitted) to know or find what is required in such an appeal.
Despite his claims that he did not know about cases such as Re F: Litigants in Person Guidelines (2001) FLC 93-072, although he later admitted that he did have knowledge, he has (duties omitted).
Yet he claimed he did not have experience in this area and really did not know what he was doing.
Inexperience is one thing, but (occupation omitted) is another and the appellant is a (occupation omitted) and it is irrelevant that he states he does not (duties omitted).
In an unguarded comment though, he admitted his experience, when he said: "Okay, well as I said before, that both parties are (occupation omitted) and these cases are common cases in relation to child support matters. These cases are very commonly referred to all the time by the child support agency and I’m not putting forward anything that hasn’t been already put forward in decisions before. I believe it’s mentioned quite a fair bit, a very common case. Okay, and I’m specifically relating it to school fees" – see page 84 of the court transcript.
Given the admission and the truculent manner in which the appellant attempted to amend his appeal and stating the respondent mother could have read the material overnight, it may be that he is being vexatious.
I do not have to decide that matter.
Now I return to the issue of alleging that the respondent mother forged his signature.
It is an extremely serious matter for (occupation omitted) to accuse another (occupation omitted) of engaging in a fraudulent activity, without any reasonable grounds or evidence to do so.
It seems to me to be irrelevant that such a claim is made within the terms of a child support dispute.
There are rules to be followed, particularly by the (omitted) profession, with regard to the making of fraud and associated allegations, which are not to be made lightly.
The appellant made the allegation unequivocally in his written submissions but then did not put before the court his reasonable grounds for making such an allegation. Nor did he withdraw such allegations.
I shall seek submissions from the appellant on that issue and consider whether this is conduct which ought to be referred to the Legal Services Commission of Queensland.
I certify that the preceding two hundred and ninety (290) paragraphs are a true copy of the reasons for judgment of Judge Coates
Date: 28 June 2013
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