Scott and Child Support Registrar and Anor (SSAT Appeal)
[2011] FMCAfam 1212
•11 November 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SCOTT & CHILD SUPPORT REGISTRAR and ANOR (SSAT APPEAL) | [2011] FMCAfam 1212 |
| CHILD SUPPORT – Appeal from decision of SSAT – consideration of grounds of appeal – whether error of law shown – appeal dismissed. |
| Family Law Act1975, s.79 Child Support (Assessment) Act 1989, ss.117(2), (2)(b)(ii), 117(4) Child Support (Registration and Collection) Act 1988, s.110B |
| Farrens & Farrens (2010) FMCAfam 325 Tasman & Tisdall (2008) FMCAfam 126 Australian Postal Corporation & Hughes (2009) FCA 1057 Brown v Repatriation Commission (1985) 7 FCR 302 LDME and JMA (2007) FMCAfam 712 Comcare & Etheridge (2006) FCAFC 27 Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 47 ACSR 649 |
| Applicant: | MR SCOTT |
| First Respondent: | CHILD SUPPORT REGISTRAR |
| Second Respondent: | MS SCOTT |
| File Number: | BRC 2680 of 2011 |
| Judgment of: | Coker FM |
| Hearing date: | 28 October 2011 |
| Date of Last Submission: | 28 October 2011 |
| Delivered at: | Townsville |
| Delivered on: | 11 November 2011 |
REPRESENTATION
| Applicant: | Self-represented |
| Solicitors for the 1st Respondent: | Department of Human Services |
| Solicitors for the 2nd Respondent: | Self-represented |
ORDERS
That the Notice of Appeal be dismissed with no order as to costs.
IT IS NOTED that publication of this judgment under the pseudonym Scott & Child Support Registrar and Anor (SSAT Appeal) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT TOWNSVILLE |
BRC 2680 of 2011
| MR SCOTT |
Applicant
And
| CHILD SUPPORT REGISTRAR |
First Respondent
| MS SCOTT |
Second Respondent
REASONS FOR JUDGMENT
This is an appeal from a decision of the Social Security Appeals Tribunal. The decision, handed down on 25 February 2011, was that the Tribunal decided to set aside the decision of the objections officer and substitute a new decision that:
·For the period 21 May 2010 to 30 June 2010, set Mr Scott’s adjusted taxable income at $214,995;
·For the period 1 July 2010 to 31 October 2011, set Mr Scott’s adjusted taxable income at $185,000;
·For the period 1 July 2010 to 30 June 2011, increase the annual rate of child support payable by $8,784 per annum.
The appellant in these proceedings is Mr Scott. He is the father of the children [X], born [in] 1995 and therefore, at this stage, 16 years of age and [Y], born [in] 1997 and therefore, at this time, 14 years of age. The second respondent to the appeal is Ms Scott and the first respondent is the Child Support Registrar.
In his Amended Notice of Appeal, filed on 21 July 2011, the appellant seeks to appeal the decision of the Social Security Appeals Tribunal. The appeal is said to be pursuant to the provisions of section 110B of the Child Support (Registration and Collection) Act 1988.
The grounds of appeal are set out under the heading Reasons for Application. They are in these terms:
1. The learned member erred in law in the member’s application of sub sections 98C(1), 117(2), 117(2)(b)(ii), and 117(4) of the Child Support (Assessment) Act 1989 specifically:
(a)in finding one or more grounds of departure were established; and
(b)in determining that a departure was just and equitable as regards the children and each parent;
in that the learned member, in purporting to apply the abovesaid legislative provisions:
(i)failed to take into account that the applicant worked only for half of the financial year ending 30 June 2010 and enjoyed an income of $136,000 as opposed to $214,000.00 as erroneously calculated by the learned member; and
(ii)failed to take into account in Ordering that: the applicant pay 2/3rds of the children’s school fees and the respondent pay 1/3rd of the children’s school fees – in effect $23,013 and $11,507 respectively, the applicant, as the respondent well knew or ought to have known, had already paid $28,013 or, alternatively was in the process of paying a sum of $28,013, being an amount $5,266 in excess of the percentage amount Ordered by the learned member and which latter said amount should have been treated by the learned member as a credit in favour of the applicant; and
a.erred in finding otherwise than, that until 10th August 2010 – the date of property settlement, both the applicant and the respondent, when making any payments related to child expenses, were merely acting as lawful administrators of the joint funds that were part of the matrimonial pool to be divided by agreement at mediation on 10th August 2010 (or, if no agreement, by the Court thereafter); and
b.erred in finding specifically:
A. that the respondent’s payment of expenses for the children had been paid by her personally; and
B. that the applicant’s payment of expenses had been paid from the pool of matrimonial funds; and
thereby wrongly causing an assessment of arrears to be payable by the applicant to the respondent.
Particulars
1. The matrimonial pool existed in toto until 10 August 2010, when the pool was divided in accordance with the Agreement signed at mediation on that date, (and subsequently filed in those terms in the Family Court of Australia).
2. All expenses for either party or the children came out of the funds of the marital pool available, by agreement, to both parties.
3. Neither the applicant nor the respondent paid for children’s expenses personally up until that date because neither party had any separate funds which could have been fairly described as their own personal funds.
4. The learned member noted the submission of the applicant that 10 august 2010 was an appropriate start date for payment of child support as until that date all payments had come from what would ultimately become the divided matrimonial assets; (SSAT Decision paragraph 72).
5. That learned member held in paragraph 73 (SSAT Decision) that he could not give a credit to the applicant because the applicant was paying the expenses from the marital (sic) pool as opposed to personal funds while the learned member found that the expenses paid by the respondent would be credited to her even though the expenses paid by her came from the same marital pool of assets; and
c.erred in failing to take into account the additional child related expenses, in the amount of $3949, that the applicant paid directly (as opposed to paying it to the respondent first) for the children during the period 11 August 2010 to 4 November 2010, which contributions by the applicant significantly reduced the burden of child support payable by the respondent; and
d.erred,
i. in that, while noting the applicant’s out of pocket expenses and deciding that the applicant should pay only 2/3 of those costs (SSAT Decision paragraph 61), the learned member failed to take account in his actual Decision, that the applicant should be credited 1/3 of the costs, by the respondent, for private health insurance and orthodontic expenses paid in full by the applicant;
ii. failing to properly calculate the quantum of out of pocket expenses associated with private health insurance earned orthodontic treatment paid by the applicant; and
e. in all the circumstances the learned member:
i. wrongly formed the view that one or more grounds of departure were established: OR FUTHER AND/OR IN THE ALTERNATIVE;
ii wrongly determined that a departure was just and equitable when it was not just and equitable to Order a departure.
The applicant says that generally there has been a failure on the part of the Social Security Appeals Tribunal to properly exercise their discretion, according to law, in that it was not open to the tribunal to find a ground for departure as established and, if so finding that there was a ground for departure, it was not just and equitable as regards the children and each of the parents responsible for the support of the children.
The appeal can be broken down into five specific grounds though of course, as I indicate, there is generally one ground that is relied upon and perhaps more particularly should be described as “sub grounds”. They are:
·that the Social Security Appeals Tribunal failed to take into account the appellant’s unemployment during the financial year ending 30 June 2010;
·that the Social Security Appeals Tribunal failed to take into account the appellant’s payment of school fees;
·that the Social Security Appeals Tribunal erred in findings it made relating to expenses paid prior to 10 August 2010;
·that the Social Security Appeals Tribunal failed to take into account additional child related expenses that the appellant says were paid by him; and,
·that in a general or overall manner the Social Security Appeals Tribunal erred in finding that a ground of departure existed and that it was just inequitable to depart from the administrative assessment that had been made.
Principles
In Farrens & Farrens (2010) FMCAfam 325 Slack FM noted at paragraph 20 the following:
The Child Support (Registration and Collection) Act 1988 makes clear that a party to a proceeding before the SSAT may appeal on a question of law.
In commenting upon that particular statement he cited with approval the decision of Brown FM in Tasman & Tisdall (2008) FMCAfam 126 at paragraph 44 when Brown FM made the following comments in relation to a jurisdictional error:
An Administrative Tribunal exceeds its powers and thus commits jurisdictional error, which is correctable on appeal in respect of a question of law, if it:
i)fails to construe properly the legislative provisions applicable;
ii)identifies the wrong issues or asks itself the wrong questions;
iii)ignores relevant material or relies on irrelevant material;
iv)fails to accord procedural fairness to a party before it;
v)makes an erroneous finding of such a magnitude that it goes to the very jurisdiction which it purports to exercise rendering its decision perverse or unreasonable or otherwise offending logic.
Slack FM concluded his commentary in relation to the matters and principles at paragraph 22 of Farrens & Farrens by saying:
It seems clear though that findings of fact, including inferences, may be reviewed to determine whether there has been an error of law
More particularly, however, it should also be noted as follows:
a)An appeal from a decision of the Social Security Appeals Tribunal may only be brought on a question of law. Section 110B of the Child Support (Registration and Collection) Act states:
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 the proceeding.
b)The existence of a question of law is critical to the exercise of the jurisdiction of the Court to hear an appeal from the SSAT see Flick J in Australian Postal Corporation & Hughes (2009) FCA 1057 in respect of an analogous provision with respect to appeals from the Administrative Appeals Tribunal. There Flick J said:
The jurisdiction being exercised is nevertheless constrained by the requirement that the appeal be “on a question of law”.
c)In Brown v Repatriation Commission (1985) 7 FCR 302 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 confined to it.
d)The orders that a court makes, therefore, must “flow from a finding in favour of the appellant on an identified question or questions of law”. In LDME and JMA (2007) FMCAfam 712, Halligan FM observed:
The basis and focus of a section 110B appeal is a question of law. The appeal is not one in which findings of fact per se can be called into question (Comcare & Etheridge [2006] FCAFC 27 at [14] per Branson J with whom Spender and Nicholson JJ agreed). The Grounds of Appeal called for in the Notice of Appeal in this Court assume the provisions of s.110B. Thus, in my view the Grounds of Appeal to be set out in the Notice of Appeal should ideally be expressed in a way that enables the respondent and the Court to identify the question 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 being made.
As is obvious from the following recitation of statements in relation to the matters of law, a finding of fact does not, of itself, automatically give rise to an error of law. As Brown FM in Tasman & Tisdall (2008) FMCAfam 126 noted:
A question of law arises if an administrative tribunal makes an erroneous finding of such a magnitude that it goes to the very jurisdiction which it purports to exercise in rendering its decision perverse or unreasonable or otherwise offending logic.
Here that is the thrust in its entirety of the submissions made by the appellant in relation to these proceedings.
The appellant says and, in fact, his opening statement to me in submissions was that the decision of the Social Security Appeals Tribunal was inappropriate because it was not just and equitable. Quite simply it was the contention of the appellant that there was such a manifest error arising from the findings made by the Social Security Appeals Tribunal, both in relation to issues of income and specifically, as it was emphasised by the appellant, in relation to the payment of school fees, that there was a decision which, of its very nature, was perverse or unreasonable or otherwise, as indicated by Brown FM in Tasman & Tisdall, offended logic.
The position of the second respondent, the mother, in relation to these proceedings was that there was no manifest error, that there was nothing that arose such that it would give rise to a situation where there was an erroneous finding of such magnitude that it was contrary to logic and, in fact, the second respondent specifically went on to say that the decision was made by the Social Security Appeals Tribunal, upon evidence that was before it and it was, as she put it, “The best decision that could be made upon the information that was before it.”
A similar stance was taken by the first respondent, the Child Support Registrar. At paragraph 24 of their submissions in relation to this matter the legal representatives for the Child Support Registrar said:
No question of law can be discerned from the Applicant’s ground of appeal in the present case, however it may be read. To employ Branson J’s words in Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 47 ACSR 649, with Jacobson and Bennett JJ concurring, in the present case the ‘questions’ stated by the Applicant in the appeal (which are not questions at all) have been “impermissibly drawn in a way calculated to cause this Court to review the decision of the [SSAT] rather than to answer stated questions of law.”
I was much assisted by the submissions provided on behalf of the Child Support Registrar. The Child Support Registrar’s legal representatives broke the grounds of appeal down into various individual headings which made it far easier to address than was originally the case.
I intend to a significant degree to adopt the approach taken by the legal representatives for the Child Support Registrar in relation to consideration of what might be considered each of the sub-grounds of the appeal lodged on behalf of the appellant.
Applicant’s unemployment
The applicant asserts in the grounds of appeal that the Social Security Appeals Tribunal failed to take into account that the applicant worked only for half of the financial year and earned, as the appellant says, $136,000 in that year as opposed to $214,000, which the appellant says was “erroneously calculated by Member [G].”
However, it is obvious from the decision that was given in relation to the matter and particularly from the reasons that were outlined, that the member of the Social Security Appeals Tribunal did consider the applicant’s employment status during this period. That is noted particularly in paragraph 36 of the reasons for decision at paragraph 35 where Member [G] says:
Mr Scott was forced to retire from [omitted] in January 2010.
A little later at paragraph 37 the member goes on to say:
He had also obtained employment at [omitted] (at an annualised salary of $120,000) and in the period May and June 2010, earned $20,000.
What is clear is that Member [G] did look at all sources of funds available to the appellant including, of course, income earned up to the time of his forced retirement from [omitted] in January 2010, as well as receipt, as the member notes, of accrued leave payments and lump sum compensation for early retirement, as well as a pro rata entitlement to pension.
Quite clearly the member considered the documentary and oral evidence of the parties in relation to the matter and based the calculation of income for the financial year 30 June 2010 on all available information. There is not therefore a failure on the part of the member to consider all available information in the calculation of the figure to be used for the purposes of assessment of child support. The first of the grounds relating to the applicant’s unemployment must, in my assessment, fail.
Payment of school fees
The second ground and the one which was pressed most strongly on the part of the appellant was to the effect that the Social Security Appeals Tribunal failed to take into account a payment of $28,000 which was, in fact, greater than the two-third, one-third assessment of payment which had been commented upon within the reasons of the member of the Social Security Appeals Tribunal.
Again, however, it is clear in the reasons that were given in relation to this matter that Member [G] specifically considered the private school fees for the children. At paragraph 18 of the reasons Member [G] says the following:
[X] attends grade 11 (in 2011) at [B] School. The cost of tuition in 2011 is $17,452. [Y] attends grade 9 at [G] School. Her tuition fees in 2011 are $17,068.
The member goes on in paragraph 19 to specifically note the payments that have been made toward each of the children’s school fees or which are to be paid by each of the parents towards the children’s school fees. He notes specifically that the appellant has paid $14,229 towards the child [X]’s fees for 2011 and notes that the appellant is to pay the balance of the child [Y]’s school fees in a sum of $13,916. That leads to the total payment to be effected pursuant to those figures of $28,145 and not the $28,013 which is referred to.
However, it is clear that consideration was given specifically to the fees paid and the fees to be paid and notwithstanding whatever those considerations may have been, determined that it was appropriate in all the circumstances that the appellant pay two-thirds of the private school fees and the second respondent one-third of the private school fees.
Thereafter, it is clear that payments which were made, were payments that should not necessarily or at all, be taken into consideration in respect of the final figures. It is clear that evidence was available and that the member took such matters into consideration when determining what final decision should be made. It is not, in my view, a question of law but relates to a question of fact which does not give rise therefore to an error of law.
Other Expenses
The appellant suggests that there was an error in findings that were made by the member relating to other expenses paid by him and also paid by the second respondent. Reference is particularly made to payments made on or before 10 August 2010, which the appellant says is the date of property settlement and that payments prior to that date were made, from a matrimonial “pool”, which was subsequently to be divided.
The second respondent in relation to that particular aspect of the matter says that, in any event, that was not the date of property settlement effected between the parties and attaches to her affidavit of 1 September 2011 a copy of the consent orders in relation to property settlement, which note in particular, that the order is one made pursuant to the provisions of section 79 of the Family Law Act 1975 for, “the final division of the matrimonial property”. That order is an order dated 12 July 2011.
In any event, however, there is once again a fatal flaw, if you like, in the approach taken by the appellant in relation to this matter. The appellant does not agree with the manner of calculation applied by Member [G] when determining the matter. However, it is clearly a situation where Member [G] has applied the information, both documentary and oral that has been made available in relation to the matter, in a manner which is contrary to that which was sought to be considered by the appellant. It is not an error of law, it is simply a difference of opinion between Member [G] and the appellant and the fact that the findings of fact made by and on behalf of the Social Security Appeals Tribunal are different to those which are considered to be appropriate by the appellant do not give rise to a basis upon which any proper appeal can be made.
Other Child Related Expenses
This ground relates to the period subsequent to 10 August 2010 which appears to have been a date upon which a mediation occurred and an agreement was reached though, of course, as I have noted, it was some 11 months or so later that orders were finally made. However, the appellant asserts that the Social Security Appeal Tribunal failed to take into account other expenses that were paid by the appellant during the period following the mediation on 10 August 2010 to 4 November 2010. The appellant says that the contributions which were made and specified at $3949, “significantly reduced the burden of child support payable by the respondent”.
Again, however, the suggestion that there has been a failure to consider such matters is incorrect. In paragraphs 28 through 44, Member [G] considered a very considerable number of matters relating to both the expenses attributable to the appellant, as well as the needs of the children. This was elaborated upon further under the heading, “Necessary commitments to support themselves [Paragraph 117(4)(3) of the Act]”, where between paragraphs 51 and 55 reference is made to the parents incurring legal expenses, the travel expenses of the appellant associated with him being based in Canberra for work but travelling to Brisbane for the purposes of spending time with the children and specifically refers in paragraph 53 to the appellant’s statements as to his weekly expenditure exceeding after tax income by about $200 per week.
It could not be suggested that there has not been a comprehensive consideration by Member [G] as to the parties’ and the children’s expenses during any consideration in relation to this matter. Throughout the reasons for decision and they are comprehensive, there is a clear line of reasoning which is attributable to the fact that evidence was available, both documentary and oral of income and expenditure relating to each of the parties, the appellant and the second respondent, as well as specific expenses relating to the proper needs of the children.
The legal representatives for the Child Support Registrar, in particular refers to the fact that at paragraph 33, Member [G] notes:
The parents have estimated the children’s total needs, (including education and special needs) at approximately $100,000 per annum (based on the current division of care).
Member [G] then goes on to speak of these figures being inflated by various considerations such as the need for the mother to pay rent and a mortgage and for the appellant to be expending significant funds on:
…what could only be described as discretionary activities for the entertainment of the children (such as scuba-diving courses).
The legal representatives for the Child Support Registrar then go on to note at paragraphs 38 and 39 the following:
It is clear, in the First Respondent’s submission, that there was an evidentiary basis for the findings made by the SSAT. The Tribunal has both documentary and oral evidence before it in relation to out of pocket expenses of the Applicant.
For the Court to consider this issue would require it to question whether the SSAT gave proper consideration to the evidence before it.
This, as submitted above, is a question of fact not law.
The first respondent submits that the first ground and the sub-grounds ought to be dismissed. I can only but agree with that assertion in relation to the matter. It is, if you like, confined to a difference of opinion between the appellant and Member [G] as to what is the proper figures to be considered in relation to such matters, but they are questions of fact and the suggestion that an error of law has arisen in relation to such matters is not one that could properly be based on any of the evidence presented in relation to this matter.
Finally, and perhaps, if you like, as a catch-all, the appellant asserts under the grounds of appeal at 1(e) that Member [G]:
(i)wrongly formed the view that one or more grounds of departure were established; OR FURTHER AND/OR IN THE ALTERNATIVE;
(ii)wrongly determined that a departure was just and equitable when it was not just and equitable to Order a departure.
Such matters are again, and it was emphasised on behalf of the Child Support Registrar, issues of fact and not issues of law. The grounds for departure are contained within section 117(2) of the Child Support (Assessment Act) and the Social Security Appeals Tribunal member found that a ground of departure was established under subsection (2)(b)(ii) of the Assessment Act.
There reference is made to specific issues with regard to the care, education or training of a child as expected by the parents. There was an agreed course to be followed. It involved provision of significant assistance that the parents agreed was to be provided for the children in relation to their education and generally to the lifestyle that the children would live.
Member [G] found, I think understandably and properly, that this specific position taken by the parents constituted a special circumstance and therefore properly gave rise to a ground for departure. That determination was one made on the evidence that was available in relation to these proceedings and was one based on the facts, oral and documentary, that were provided in relation to the matter.
It is, in my view, quite clear that a ground for departure on the evidence that was available in relation to this matter was open to be found by Member [G] and was found. An appeal arising from the circumstances under which that decision was made is an appeal on the facts and is not able to be sustained. More particularly, as was submitted on behalf of the Child Support Registrar:
The determination that a departure order is just and equitable is a balancing exercise not a mathematical exercise and requires consideration of the statutory factors set out in section 117(4) of the Assessment Act.
Quite clearly and the reasons are articulated very specifically, Member [G] on behalf of the Social Security Appeals Tribunal considered all of the matters that were required to be considered as detailed in section 117(4) of the Child Support Assessment Act and made a determination as to what was considered on behalf of the Social Security Appeals Tribunal to be a just and equitable determination of a figure to be used for the purposes of assessment of child support and of a figure relevant with regard to an increase in the rate of child support, for the financial year 1 July 2010 to 30 June 2011.
Member [G] properly considered the various factors that arose pursuant to the provisions of section 117(4) of the Act and the findings, both that there was a ground for departure, and that following a determination that there was a ground for departure was that variation should be made as it was just and equitable to do so was appropriate in the circumstances.
The appellant in each situation seeks to have this Court re-determine the merits of the determination made by Member [G], in relation to the proceedings. It is not appropriate that that should occur and clearly in each case, whilst the appellant may not agree with the determination of Member [G] on behalf of the Social Security Appeals Tribunal, the evidence was available to Member [G] in relation to the determination of this matter and there is no error of law in relation to any of the findings made by Member [G].
Accordingly, the Order of the Court will be:
(1) That the Notice of Appeal be dismissed with no order as to costs.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Coker FM
Date: 11 November 2011
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