Scullin and Scullin and Anor (SSAT Appeal)

[2014] FCCA 2941

FEDERAL CIRCUIT COURT OF AUSTRALIA

SCULLIN & SCULLIN & ANOR (SSAT APPEAL) [2014] FCCA 2941

Catchwords:
CHILD SUPPORT – Review of decision from the SSAT – failure to provide procedural fairness – need to inform the applicant of the proposed duration of the assessment – first ground made out – no failure to consider s.117(4) – second ground not made out.

Legislation:

Child Support (Assessment) Act 1989, s.117, pt.6A

Child Support (Registration & Collection) Act 1988

Agrippa & Horton (SSAT Appeal) [2010] FMCAfam 1144
Kindree & CSR & Anor (SSAT Appeal) [2010] FMCAfam 357
PJ v Child Support Registrar (SSAT Appeal) (2007) 38 Fam LR 31
Ross & McDermott [1998] FamCA 134

Applicant: MR SCULLIN

First Respondent: MS SCULLIN

Second Respondent: CHILD SUPPORT REGISTRAR

File Number: BRC 9286 of 2013

Judgment of: Judge Cassidy

Hearing date: 21 November 2014

Date of Last Submission: 21 November 2014

Delivered at: Brisbane

Delivered on: 18 December 2014

REPRESENTATION

Counsel for the Applicant: Mr Black

Solicitors for the Applicant: Anthony Black Family Law Services

Counsel for the First Respondent: Ms Walker-Munro

Solicitors for the First Respondent: Legal Aid Queensland

Solicitors for the Second Respondent: Mr C Bishop of the Department of Human Services

ORDERS

1. That the decision of the Social Security Appeals Tribunal (review number 2013 / BC 003309) made 3 September 2014 be set aside.

2. That the matter be remitted to the Social Security Appeals Tribunal to be heard and decided again. 

NOTATION

(A)It is noted that the appeal was successful in relation to ground 1 and unsuccessful in relation to ground 2 of the Further Amended Notice of Appeal filed 24 October 2014.

IT IS NOTED that publication of this judgment under the pseudonym Scullin & Scullin & Anor (SSAT Appeal) is approved pursuant to s.110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 9286 of 2013

MR SCULLIN

Applicant

And

MS SCULLIN

First Respondent

CHILD SUPPORT REGISTRAR

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This appeal proceeded on the basis of a Further Amended Notice of Appeal (Child Support) filed on 24 October 2014.  The applicant seeks to appeal a decision of the Social Security Appeals Tribunal (“the SSAT”).

2. On 3 September 2014 the SSAT set aside the decision under review and substituted a new decision that set the applicant’s rate of child support at $17,210 per annum from 22 January 2012 to 30 December 2017.  The applicant raises two points of law where he argues the SSAT erred at law. 

3. The first one is that the SSAT failed to afford him procedural fairness and the second one is that the SSAT member failed to consider and / or make findings under s.117(4) of the Child Support (Assessment) Act 1989 (“the Assessment Act”). The case of the Child Support Registrar (“the Registrar”) is that no error of law has been demonstrated and that the decision should remain in place.

Background Facts

1. The applicant and the first respondent are the parents of [X].  [X] was born on [omitted] 2008 and he is the subject of a child support assessment that was registered on 22 October 2008. 

2. These parties have been involved in disputes for most of the child’s life. On 23 March 2009, a Senior Case Officer (“SCO”), who was a delegate of the Registrar, made a determination to depart from the administrative assessment of child support (“the departure”) under pt.6A of the Assessment Act.

3. The SCO determined that the applicant’s annual rate of child support be set at $17,210 for the period 22 October 2008 to 21 January 2010.  Neither parent objected to this decision.  On 12 March 2010 a SCO made a departure determination that set the applicant’s rate of child support at $17,210 for the period 22 January 2010 to 21 January 2012.  Again neither parent objected to this decision. 

4. On 31 January 2012 the first respondent applied for a further departure determination. On 16 September 2012, the Registrar found that no ground of departure was established and refused the application. The first respondent objected to this decision. On 8 February 2013, a pt.6A Objection’s Officer, a delegate of the Registrar, allowed the objection and determined that the applicant’s adjusted taxable income be set at $130,000 per annum for a period 22 January 2012 to 30 June 2014.

5. On 22 April 2013 the first respondent lodged an application for a review with the SSAT.  The SSAT decision was made on 3 September 2013.  The decision set the applicant’s annual rate of child support at $17,210 from 22 January 2012 to 30 December 2017. 

The Law

1. The Child Support Registrar, in his written outline filed 12 November 2014, sets out the legal framework accurately and the submission adequately summarises the law in relation to the legal framework.  I adopt those submissions in my reasons, noting that the “Collection Act” refers to the Child Support (Registration & Collection) Act 1988:

   “Only on a question of law

[22] The right of appeal afforded to the Applicant is pursuant to section 110B of the Collection Act and is limited to an appeal “on a question of law”. In other words, the Court’s jurisdiction is only enlivened by a question of law being properly raised on the appeal. This provision was introduced by the Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006 and is in almost identical terms to subsection 44(1) of the Administrative Appeals Tribunal Act 1975.

[23] His Honour Halligan FM (as he was then), in LDME & JMA (SSAT Appeal) [2007] FMCAfam 712 at [21] recognised the connection between the two legislative schemes, observing that “in determining the meaning and operation of the provisions of Division 3 [of Part VIII of the Registration Act, which includes section110B], decisions as to the meaning and operation of equivalent provisions of s 44 will provide valuable guidance.”

[24] An appeal “on a question of law” is more limited in scope than an appeal which involves a question of law.[1] As Flick J noted in Australian Postal Corporation v Hughes [2009] FCA 1057; 50 AAR 267 in respect of the analogous provision within the AAT Act at [7]:

[1] see Hussain v Minister for Foreign Affairs (2008) 169 FCR 241 at [31] per Weinberg, Bennett and Edmonds JJ and the authorities cited therein.

The jurisdiction being exercised is… constrained by the requirement that the appeal be “on a question of law”. 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.

[25] Thus, 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. As Kenny, Stone and Logan JJ stated in Rana v Repatriation Commission [2011] FCAFC 124 at [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 the proceeding.

[26] A particular question of law, which is said to arise from the decision of a tribunal, must be “stated with precision as a pure question of law.”[2] In LDME at [29], Halligan FM echoed these observations:

[2] Birdseye v Australian Securities and Investment Commission (2003) 76 ALD 321 at [13]-[15] per Branson and Stone JJ.

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 v 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.

[27] Strict compliance with this prerequisite ensures that the merits of a case are dealt with, not by the Court, but by the Tribunal – a “distribution of function [which] is critical to the correct operation of the administrative review process.” As such, “...the nature of the task of this court is clear. It is to leave to the tribunal of fact decisions as to the facts and to interfere only when the identified error is one of law.”[4]

[28] In performing that task the Full Court in Child Support Registrar & Crabbe & Anor [2014] FamCAFC 10 followed the observations in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 271-2:

…[In] Collector of Customs v Pozzolanic… a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be “concerned with looseness in the language… nor with unhappy phrasing” of the reasons of an administrative decision-maker. The Court continued “The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.”

These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.

[29] In expressing those reasons the Full Court in Crabbe, with reference to Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, went on to hold that “section 103X(3)(b) of the Registration and Collection Act (by analogy with s 430 of the Migration Act) requires the SSAT to do no more than set out the findings that it did make on facts which it considered material to the decision which it made (Yusuf) ”[5]

[4] Collector of Customs v Pressure Tanker Pty Ltd & Pazzolanic Enterprises Pty Ltd [1993] 43 FCR 280.

[5] Child Support Registrar & Crabbe & Anor [2014] FamCAFC 10 at [54].

Ground 1

1. The applicant’s Further Amended Notice of Appeal filed 24 October 2014 states:

   “[1] The Social Security Appeals Tribunal denied the Applicant procedural fairness, because:

   a. The Respondent had applied to the Child Support Registrar for a departure from an administrative assessment of child support for the child support period of 22 January 2012 to 22 March 2013.

   b. The Social Security Appeals Tribunal decided there should be a departure from the administrative assessment of child support for the period ending 30 December 2017 (rather than the period ending 22 March 2013) without giving the Applicant any reasonable opportunity to be heard on that issue.” 

2. The Registrar argues at paragraphs 33 – 41 of his submissions that there was no denial of procedural fairness: 

   “[33] Relevantly, section 98C of the Assessment Act provides that the Registrar may make a departure determination in circumstances where she is satisfied that one or more of the grounds of departure are established, and it would be just and equitable and otherwise proper to do so. Section 98S specifies the types of determinations that may be made (including a variation to the annual rate of child support) that the determination is not limited by the terms of the application made, and that the determination may apply to different child support periods and different parts of a child support period. Critically, in reviewing a decision section 103T(1) of the Collection Act confers on the SSAT ‘all the powers and discretions that are conferred by this Act and the Assessment Act on the Registrar’.

   [34] In Child Support Registrar & Ahern & Anor [2014] FamCAFC 105 at [72], the Full Court confirmed:

   …in reviewing the objection made in relation to the original departure decision, the SSAT had by virtue of s 103T(1) of the Collection Act, all the powers of the Register under Part 6A of the Assessment Act, including the powers in s 103S(1) of the Collection Act to set aside the decision which was subject to the review and to substitute a new decision (subject always to procedural fairness considerations).

   [35] As was summarised by French CJ and Kiefel J in Minister for Immigration and Citizenship v SZGUR [2011] HCA 1 at [9]:

   Procedural fairness requires a decision-maker to identify for the person affected by any critical issue not apparent from the nature of the decision or the terms of the statutory power. The decision-maker must also advise of any adverse conclusion which would not obviously be open on the known material. However a decision-maker is not otherwise required to expose his or her thought processes or provisional views for comment before making the decision.

   [36] The Registrar submits that the Applicant was aware, or should have been aware, that one of the issues squarely before the SSAT was, in circumstances where a ground of departure was established, what particular determination would be just and equitable and otherwise proper. This necessarily included the relevant period of departure: see Henriques & Hatzis & Anor (SSAT Appeal) [2014] FCCA 1194 at [163]-[165]. Further, this issue was not unique to the review performed by the SSAT, but had been the subject of the subservient decision made by the Part 6A Objections Officer and the previous two departure determinations made by the Registrar.

   [37] In the Registrar’s submission the Applicant’s assertion that the SSAT were required to give notice of the period of departure being considered, amounts to requiring the SSAT to expose its thought processes and provisional views. As the High Court said in SZGUR procedural fairness makes no such demands.

   [38] In any event, this ground cannot be sustained in light of the transcript which makes clear that the issue was raised by the SSAT Member, Mr J, stating:

   Mr J: … The tribunal, if it makes a new decision, can make a decision up until any date it considers reasonable, and in looking at that, there are a few things that the tribunal would consider. On the one hand, its obviously undesirable that parents are required to go through this process more than they, you know, should have to.

   On the other hand, people’s circumstances change from time to time. You know, the future is unpredictable, and so, you know, they are some of the matters that may stop the tribunal from making a decision that has effect too far into the future, but each case is different, and the tribunal considers the circumstances of the case.

   [39] This issue was revisited at the conclusion of the hearing:

   Mr J: … As I said earlier, if the tribunal makes a new decision, there are a few things to be considered. The first is when the decision should have effect. Also when it should have effect until, and what the decision is…

   [40] The Applicant was then specifically asked:

   Mr J: Mr Scullin, do you have a view on what the – and you don’t have to have a view, but do you have a view on what the final decision should be?

   Mr Scullin: I think it should reflect my – my income, that I -  89,000 a year, and she has 100 per cent custody of [X]. I think my travel expenses at least for 2012 should be included, in the assessment, and I think special therapy sessions for my son here in California, as they’re above and beyond the normal expenses of raising a child, should be included.

   [41] The Registrar submits there was no denial of procedural fairness and this ground must fail.”

3. The applicant argues that the transcript reveals that the presiding member did not specifically raise with Mr Scullin the potential for the period to run until 2017.  At paragraphs 21 – 25 of his submission filed 24 October 2014, the applicant argues that the transcript demonstrates a failure to afford procedural fairness and relies on the authority of PJ v Child Support Registrar (SSAT Appeal) (2007) 38 Fam LR 31.

4. I consider Kindree & CSR & Anor (SSAT Appeal) [2010] FMCAfam 357 relevant in the present case. In that case the Court refused to find a denial of procedural fairness in the absence of transcript, however the Court said:

   “[22] The appellant in this case has not provided a copy of the transcript of the hearing before the SSAT.  It is, therefore, not possible for me to determine whether or not the appellant had notice that the SSAT would consider a period beyond that covered by the initial objection decision. 

   [23] It is quite conceivable that the tribunal would have raised the period that it was considering during the course of the hearing to allow submissions to be made with respect to that period. It is not appropriate to proceed to make determinations of this type, effectively finding that the tribunal failed to accord the appellant procedural fairness, on the basis of a contentious affidavit alone when transcript could be obtained.  In these circumstances I find no merit in this ground.” 

5. Another relevant case is PJ v Child Support Registrar (SSAT Appeal) (supra).  In particular, paragraph 52 provides:

   “[52] In these circumstances, it is incumbent upon the tribunal to put the appellant on notice if the tribunal is still considering making findings in accordance with the claims of the party that has ceased to pursue their claims. Merely making the abstract statement that an adverse decision can be made, without articulating the issue in the context of this particular dispute, was not sufficient to give the unrepresented applicant in the case notice in a way that ensured he would understand that those claims were live issues before the tribunal.”

6. In the present case, the hearing proceeded without any further reference to the period to which the SSAT would make a decision.  At no point did the first respondent submit that it should be a longer period and at no point did the decision maker identify that it was considering extending the decision to cover a period up to 30 December 2017 or any period beyond 30 June 2014.  The statements made by the member do not overcome that deficiency in my view. 

7. I note that Mr Bishop, in his submissions on behalf of the Registrar, collected together the areas of transcript where the issue of the duration of the assessment was raised.  However in particular, in the transcript of these proceedings on 21 November 2014, I note, at line 7 on page 12 through to line 35 at page 15, the following:

   “MR BLACK:   The hearing really kicks off on page 2.  At the bottom of that page and following over to the top, the presiding members says:

   I will briefly explain the tribunal’s role and hearing process.

   He says that:

   The tribunal’s role today –

   this is the second line on page 3:

   The tribunal’s role today is to review a single decision of the agency, and that’s the decision made by an objections officer on 8 February 2013 to set Mr Scullin’s adjusted taxable income for child support purposes at $130,000 per annum from 22 January 2012 to 30 June 2014.

   That’s the decision under review.  So that sets the initial context, entirely consistently of course with the authorities that I’ve taken your Honour to, that the objections officer decision really is the starting point.  The member, at about line 9 and 10, goes on to say, second sentence:

   There are a number of issues to be addressed today, and I will identify those in turn.

   He doesn’t identify them at that stage.  Flags that he’s going to identify the issues.  Now, the first discussion of any potential period to which the decision might apply is – starts at page 7 of the transcript and comes about because of a question from the applicant at line 31.  The transcript records the applicant at saying, in response to what the tribunal says:

   Yes, from 2000.  What are the dates we’re addressing here today?

   Line 34 to 39, the tribunal gives a response to that, talks about when the decision runs from.  Line 41, the applicant asks:

   And that goes to when?

   And the tribunal answers:

   Well, the decision maker made a decision until June 2014.  But I will just explain that so the tribunal can go and make a new decision.  If it does make a new decision, the tribunal can make a decision at the earliest from 18 months prior to when Ms Scullin lodged her application.  So in theory, it would be from mid 2010.  However, there was that earlier decision that was in place, and neither parent –

   over the page –

   objected to that, and so it would be unusual, very unusual, for the tribunal to make a decision prior to 21 January.

   The applicant starts to talk about objections, which is not particularly relevant.  The member then goes on from line – about line 7 through to line 19 to give some further explanation, and this is really the first point that might be made against me, because the tribunal says, well – it first of all talks about starting point, then third line, towards the end of that line:

   The tribunal, if it makes a new decision, can make a decision up until any date it considers reasonable.  And looking at that, there are a few things that the tribunal would consider.

   And then goes on to point those out, essentially that, on the one hand, it’s undesirable that parents have to go through this process too often, and on the other hand, circumstances change.  The tribunal then concludes that with saying:

   Does that help in setting some of the guidelines?

   And the next two lines of transcript are critical.  The applicant says:

   Well, I must say I just – I just wanted to know the dates.

   And then the member says:

   Well, sure, okay.  So in 2012, what were your costs of contact with –

   and it goes on to talk about the child.  Your Honour, what then ‑ ‑ ‑ 

   HER HONOUR:   You say he was asking for the date of that range of their decision.

   MR BLACK:   That’s right.  He’s plainly asking about, “When is this running to?”  He was asked, “Does this help in setting some guidelines?” and his answer goes back to, “Well, I just wanted to know the dates.”  And it’s never answered.  The following 30 odd pages of the substance of the hearing, and there’s no reference in any of those following 30 odd pages to a period, or to a future period.  The next reference isn’t until page 46, almost 40 pages.  And this is when the tribunal hearing ‑ ‑ ‑ 

   HER HONOUR:   Yes, I’ve got page 46.

   MR BLACK:   Sorry, your Honour, I’ve misstated.  Page 44.  This is where the tribunal hearing is starting to come to a close.  There’s a discussion, which I will come back to in relation to the second ground, in the first half of that page, but at around line 23, the first full sentence of that line, the member says this:

   We’re getting towards the end of the hearing.  As I said earlier, if the tribunal makes a new decision, there are a few things to be considered.  The first is when the decision should have effect from.  Also, when it should have effect until and what the decision is.  Ms Scullin (sic), it’s your application.  I might hear from you first.  Do you have – you don’t have to have a view about what you think the final decision should be, but do you have a view on that?

   And then the respondent answers, “Well, yes,” and goes on to talk about the amount that should be paid and why that should be the amount.  That discussion between the tribunal and the respondent continues about various issues over – until page 46, which is then when the tribunal turns to the applicant – sorry, your Honour, it’s page 47 over the page, is when the tribunal actually turns to the applicant at line 13.  This is the member speaking:

   Mr Scullin (sic), do you have a view on what the – and you don’t have to have a view, but do you have a view on what the final decision should be?

   And before I turn to the answer, note the difference, first of all, in questions asked.  The mother is asked about whether she has a view on what the decision should be, after the tribunal points out, can be from an earlier date, can be to a later date, can be an amount, what do you say?  And the mother talks about amount.  After three pages of that in the transcript, the tribunal then turns to the applicant and says:

   …do you have a view on what the final decision should be?

   And what does the applicant respond?  Well, he talks about amount.  He talks about figures:

   My income should be 89,000 a year.  I travel a lot.

   Etcetera.  No reference to period or future period.  Now, your Honour will have seen in the registrar’s submissions ‑ ‑ ‑ 

   HER HONOUR:   Yes, just let me get those.  Yes, I have them.

   MR BLACK:   That at page 8, the registrar extracts out some of the transcript.

   HER HONOUR:   Yes.

   MR BLACK:   And when one takes out, completely out of context, the three main references to period or to what the decision should be and sets them out straight one after the other, it certainly looks like a compelling case of, “Well, it was raised, it was asked, and he didn’t have anything to say.”  But as your Honour has just seen, it’s not what happened.  What happened is, by the time – on page 47, where we were just looking, by the time the tribunal turned to ask the applicant for his view of what the decision should be, it had heard from the mother.  It had specifically put to the mother, “I can make a decision for an earlier period, I can make a decision for a later period, I can make a decision as to what it should be,” and she only talks about figures.

   She never proposes that it should be a longer period.  And then when the tribunal finally turns to the father three pages later, it’s only a question about what the final decision should be and, in my submission, quite naturally, the answer only deals with figures.  And it’s on that reading of the transcript in context, in context of – at no point leading up to the objections officer’s decision did the mother propose an extension of the period.  The objections officer fixed a particular period.  At no point after that, between then and the tribunal hearing, did a mother propose a different period. 

   Period was raised specifically with the mother.  She didn’t propose a different period.  And then all the tribunal did was ask the applicant, “Do you have a view on what the final decision should be?”  And that’s where the unfairness is demonstrated, in my submission.  That neither party was contending for a change in period.  There’s nothing in the transcript of the tribunal hearing to indicate that the tribunal was saying, “I’m thinking about a different period.”  But according to the face of the tribunal decision, the very same day that had the hearing it made its decision, and that decision extended the period until 30 December 2017.  Quite a remarkable extension.

   HER HONOUR:   Yes.

   MR BLACK:   It’s not six months.  The objections officer period was about two years five months.

   HER HONOUR:   Is it two years five months – that’s right, yes.”

1. In this case I accept the applicant failed to disclose relevant and important documents and was completely unhelpful in his participation in terms of the SSAT’s decision making, as indicated in the SSAT’s reasons.  I note that he failed to attend a directions hearing and failed to produce various documents that were ordered to be produced and were required to enable the decision maker to understand the applicant’s current financial position.  

2. In considering the transcript of the hearing before the SSAT and the submissions made by Mr Black, I am persuaded that this does not prevent the applicant from being able to argue that he has not been afforded procedural fairness in the circumstances of this case. 

3. I am satisfied that the applicant has not been afforded procedural fairness because the decision maker:

   a)Failed to specifically indicate to the applicant that the decision might run beyond 2014 to December 2017; and

   b)Failed to invite the applicant to make submissions on the issue of the duration of the assessment period.

4. Mr Bishop’s submission was that requiring the SSAT to give notice of the period of departure being considered amounts to requiring the SSAT to expose its thought processes and provision of views.  I do not accept that submission.  It is a basic requirement that the litigant understands the terms and ambit of the dispute.  In the present case, I am satisfied that the applicant did not because he was not ever given an indication that this order specifically could go until 2017.  I consider that the applicant’s understanding of the ambit of the order was necessary in the circumstances of this case to ensure he was provided procedural fairness at the hearing. 

Ground 2

1. The applicant’s Further Amended Notice of Appeal filed 24 October 2014 states:

   “[2] The Social Security Appeals Tribunal made a decision that was not authorised by the Child Support (Assessment) Act 1989 or that otherwise involved error of law, because:

   a. Pursuant to s 98L(1)(b) of the Assessment Act, the Tribunal was authorised to make a determination under Part 6A only if it was satisfied that the particular determination was “just and equitable”.

   b. In deciding whether a particular determination is “just and equitable”, the Tribunal was bound under s 117(4) to identity and consider what the practical outcome of the actual change in income and expenses would be for the parties and child.

   c. Contrary to the requirements of s 117(4), the Tribunal failed to make the necessary findings about the reasonable expenses in caring for the child or the reasonable expenses of the parties in providing for their own necessary commitments or whether any hardship would result from making or not making an order.

   d. The Tribunal based its ultimate decision solely on a finding that the Applicant had the capacity to pay child support an at (sic) annual rate of at least $18,000.” 

2. Section 117(4) of the Assessment Act provides:

   “[4] In determining whether it would be just and equitable as regards the child, the carer entitled to child support and the liable parent to make a particular order under this Division, the court must have regard to:

   (a) the nature of the duty of a parent to maintain a child (as stated in section 3); and

   (b) the proper needs of the child; and

   (c) the income, earning capacity, property and financial resources of the child; and

   (d) the income, property and financial resources of each parent who is a party to the proceeding; and

   (da) the earning capacity of each parent who is a party to the proceeding; and

   (e) the commitments of each parent who is a party to the proceeding that are necessary to enable the parent to support:

   (i) himself or herself; or

   (ii) any other child or another person that the person has a duty to maintain; and

   (f) the direct and indirect costs incurred by the carer entitled to child support in providing care for the child; and

   (g) any hardship that would be caused:

   (i) to:

   (A) the child; or

   (B) the carer entitled to child support;

   by the making of, or the refusal to make, the order; and

   (ii) to:

   (A) the liable parent; or

   (B) any other child or another person that the liable parent has a duty to support;

   by the making of, or the refusal to make, the order; and

   (iii) to any resident child of the parent (see subsection (10)) by the making of, or the refusal to make, the order.”

3. It is submitted by the applicant that the SSAT, in the present case, has made an error.  In particular it has failed to consider or make any findings about the financial commitments the first respondent had and whether those were reasonable or necessary to enable her to support herself. 

4. It is argued the SSAT has failed to consider or make any findings about what the reasonable expenses of caring for the child were and that the SSAT has failed to consider or make any findings about whether making or refusing to make an order would cause any hardship to the child or the first respondent. 

5. In Agrippa & Horton (SSAT Appeal) [2010] FMCAfam 1144, at paragraphs 24 and 25, Halligan FM (as he then was) said:

   “[24] There is further significance in the inconsistency between the father’s evidence to the Tribunal and the financial records.  In financial proceedings under the Family Law Act 1975 a party has a duty of full and frank disclosure of all of his or her financial circumstances (Black & Kellner, (1992) 15 Fam LR 343, (1992) FLC 92-287, Weir & Weir, (1992) 16 Fam LR 154, (1993) FLC 92-338). If it is established to the Court’s satisfaction that there has been deliberate non-disclosure, “then the court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud” (Weir, above, FamLR at 158, FLC at 79,593).

   [25] In my view the same principle must apply in the assessment of child support for the same reason.  If the SSAT is satisfied that a parent has made a deliberate non-disclosure of his or her financial circumstances, it should be reasonably robust in assessing the non-disclosing parent’s financial circumstances adversely to that parent and in favour of the other parent.  That is not to say that it may arrive at an entirely arbitrary result, but rather that it may draw generous inferences adverse to the non-disclosing party about that party’s financial circumstances.”

6. In Ross & McDermott [1998] FamCA 134, the Full Court of the Family Court said:

   “[39] In our view a practical and flexible approach should be adopted to the task of considering these ss.117(4) and (5) matters, that is an approach similar to that which this court has long adopted to the “s.68F(2) matters” (formerly the “s.64 matters”) in child-related proceedings under the Family Law Act 1975 , and to the “s.79(4) matters” and “s.75(2) matters” in property settlement proceedings under that Act. Accordingly, we consider it is unnecessary to make any reference to those ss.117(4) and (5) matters which have no real relevance in the circumstances of the particular case. We also consider that it would be permissible to group together and consider as a whole, those relevant matters which by their nature lend themselves to such an approach in the circumstances of the particular case, and in the case of those matters which are required to be considered under more than one sub-section of s.117, to examine such matters only once, although they may need to be taken into account under more than one sub-section.”

7. I note the SSAT’s reasons in relation to the first respondent at paragraph 39 discussed her sources of income, finding that she had no significant assets, and then examined her financial statement, which included her expenses. The SSAT noted that there were inaccuracies in her financial statement, however I am not persuaded that they did not have regard to expenses and I am satisfied that they have adequately discharged the obligation under s.117(4).

8. With respect to the reasonable expenses for caring for the child, the SSAT found that there was no evidence the child had any special needs.  He was healthy and his expenses were unremarkable for a child of his age.  I consider that adequately deals with that issue. 

9. The third concern raised in this appeal is the issue of hardship.  When you look at the outcome, the hardship would not be an issue with respect to the child or the first respondent, because the outcome was actually providing the same amount of support that had been provided in the past and an increase on what was determined during the process of getting this matter to the SSAT through the review process. 

10. The only possible person who may have suffered hardship was the applicant.  For the reasons set out in Agrippa & Horton (SSAT Appeal) (supra), I do not consider that it was necessary for the SSAT to specifically turn their mind to that issue other than in the general way the reasons provide, given the findings the SSAT had made about the applicant’s failure to comply with directions and provide financial information.

11. I am not satisfied ground 2 has been made out.  I will therefore dismiss the appeal in relation to ground 2. 

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Cassidy

Date:  18 December 2014

[3] Repatriation Commission v Owens (1996) 70 ALJR 904 at 904.