Tasman & Tisdale
[2010] FMCAfam 425
•19 May 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TASMAN & TISDALL (SSAT Appeal) | [2010] FMCAfam 425 |
| CHILD SUPPORT – Appeal from decision of SSAT – error of law – registrar initiated change of assessment – income, earning capacity, property and financial circumstances of liable parent – income reduced by virtue of salary sacrifice – income protection payments – liable parent elects not to receive income protection payments – whether such payments are a financial resource – natural justice – no error of law found. |
| Child Support (Assessment) Act 1989, ss.17; 98L; 98M; 98N; 98Q; 117 Child Support (Registration & Collection) Act 1988, ss.88; 89; 94; 95; 103C; 103G; 103J; 103N; 103P; 103T; 103X; 110B; 110C; 110K; 120 |
| Tasman & Tisdall [2008] FMCAfam 126 PJ & Child Support Registrar (SSAT) Appeal [2007] FMCAfam 829 Forbes & Bream [2008] FamCAFC 189 LDME & JMA [2007] FMCAfam 712 Collector of Customs v Pressure Tankers Pty Ltdand Pozzolanic Enterprise Pty Ltd [1993] 43 FCR 280 |
| Applicant: | MR TASMAN |
| Respondent: | MS TISDALL |
| File Number: | ADC 2845 of 2007 |
| Judgment of: | Brown FM |
| Hearing date: | 17 February 2010 |
| Date of Last Submission: | 17 February 2010 |
| Delivered at: | Adelaide |
| Delivered on: | 19 May 2010 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the Respondent: | In Person |
ORDERS
The application filed 17 July 2009 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Tasman & Tisdall (SSAT Appeal) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 2845 of 2007
| MR TASMAN |
Applicant
And
| MS TISDALL |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern an application brought by Mr Tasman on
17 July 2009. In the main, the proceedings relate to a decision of the Social Security Appeals Tribunals (“the SSAT”) made on 12 June 2009.
The decision in question related to child support issues. Mr Tasman appeals to this court in respect of the SSAT decision, which he claims is vitiated by legal error; bias on behalf of the Tribunal concerned; and denial of natural justice to him.
However, in addition to the SSAT appeal, Mr Tasman has brought a number of applications, which he claims are ancillary to it. These include the following:
·The court set aside his current arrears of child support;
·The Child Support Agency be restrained from garnishing his income;
·The court fix his child support income at an amount of $14,391.00 for the period from 16 January 2008 to 30 June 2008 and at a sum of $18,252.00 for the period from 1 July 2008 to 1 October 2009;
·His daughter, [X] born [in] 1992 be “removed” from the applicable child support assessment for the period from 29 July 2008 to 13 September 2008.
In addition, Mr Tasman seeks a number of other orders, which do not seem strictly applicable to the child support process itself. These matters include the following:
·The Legal Services Commission of South Australia be directed to provide legal aid for him due to a medical disability which he suffers;
·The court direct the Registrar of the Child Support Agency to release a transcript of a telephone conversation between him and one of its officers, which occurred on 21 August 2008;
·The court direct the SSAT to provide him with transcripts of its proceedings of 12 May 2009 concerning his appeal to it;
·The court direct him and Ms Tisdall (who is the payee in the applicable child support assessment) to enter into a limited child support agreement;
·The court direct that any moneys due to Ms Tisdall pursuant either to a child support assessment or limited child support agreement be paid into a bank account, which can be accessed only by the children affected by such assessment or limited child support agreement.
In order to place these various applications in context, it will be useful to provide some background.
Background
Mr Tasman and Ms Tisdall are the parents of [X] born [in] 1992 and [Y] born [in] 1994.
On 31 March 2004, the Family Court at Adelaide made orders, in the absence of Ms Tisdall, which placed the care of the two children predominantly with Mr Tasman.
In June of 2006, the older child [X], went to live with her paternal grandfather. On 30 March 2007, the younger child [Y] began to live with his mother. The circumstances of [Y] changing residence are highly controversial, so far as Mr Tasman is concerned.
As a result of the change in [Y]’s living arrangements, in April of 2007, Ms Tisdall applied for an administrative assessment of child support, payable by Mr Tasman to her, in respect of [Y].
Consequently, an assessment of child support issued on 18 April 2007. Mr Tasman has been aggrieved as to the circumstances surrounding [Y] leaving his home and the financial ramifications, which have followed. It is his position that Ms Tisdall has alienated both [X] and [Y] from him.[1]
[1] See paragraph 4 of Mr Tasman’s affidavit filed 17 July 2009
In these circumstances, Mr Tasman did not believe that it was appropriate that he be assessed to pay child support to Ms Tisdall for [Y], particularly as the order of the Family Court, made on 31 March 2004, had not been formally discharged. It was Mr Tasman’s position that, given the existence of this order, Ms Tisdall could not be regarded as [Y]’s “eligible carer” and so she should not be entitled to seek child support from him.
This issue was ventilated within the Child Support Agency itself; was the subject of an appeal to the SSAT; and ultimately came before me.[2] The SSAT concluded that Ms Tisdall was [Y]’s eligible carer and so was entitled to apply for an administrative assessment of child support. In the proceedings before me, I concluded that there was no error of law arising from this determination.
[2] See Tasman & Tisdall [2008] FMCAfam 126
In the period since [Y] came into Ms Tisdall’s care, many controversies have arisen about all manner of issues to do with child support. Due to his level of involvement with the Child Support Agency, Mr Tasman has been provided with what is known as a “personalised case officer”.
At his own nomination, Mr Tasman is a client of the Agency who, wherever practicable, is to be dealt with by means of written communications only. In the jargon of the Agency, he is a “no-phone customer”.
Since April of 2007, there have been several assessments of child support for [Y] payable by Mr Tasman to Ms Tisdall. It also seems that for a brief period between late July and mid-September 2008, [X] came to live with Ms Tisdall and an assessment issued for her ([X]) for this period also.
The relevant assessment history is as follows:
·
For the period 4 May 2007 to 24 June 2007, Mr Tasman was assessed to pay an annual rate of child support of $1,601.00, based upon an estimated child support income of $23,538.00 for Mr Tasman and a child support income of $12,571.00 for
Ms Tisdall.
·For the period 25 June 2007 to 1 July 2008, Mr Tasman was assessed to pay the statutory minimum annual rate of child support of $339.00, based upon an estimated child support income of $14,805.00 for Mr Tasman, and the same income as above for Ms Tisdall.
·For the period 2 July 2008 to 1 October 2009, Mr Tasman was assessed to pay the statutory minimum annual rate of child support of $339.00, based upon an adjusted taxable income of $14,391.00 for Mr Tasman and a provisional adjusted taxable income of $13,578.00 for Ms Tisdall.
Mr Tasman has been employed as a [omitted] since 1 April 2004. Controversy arises as to the extent of his income and the status of his employment at [omitted]. It seems to be uncontroversial that Ms Tisdall has been in receipt of social security payments for all relevant periods.
On 16 January 2008, the Child Support Agency, under the hand of
Mr L, who is described as “state manager” wrote to Mr Tasman indicating to him that the Agency was considering reviewing the current child support assessment pertaining to him, as it “may not reflect your true financial position of either your ability to pay or your entitlement to receive child support.” The letter was addressed to Mr Tasman at his address in [H]. Mr Tasman asserts that he did not receive the letter in question.
Annexed to this letter was a blank asset and liabilities form, which
Mr Tasman was invited to complete and return to the Agency by
30 January 2008. No doubt this document, when completed, was intended to be part of the Agency’s process in determining whether the existing child support assessment was appropriate.
Division 3 of Part 6A of the Child Support (Assessment) Act1989 (“the Assessment Act”) authorises the Registrar of the Child Support Agency to depart from any administrative assessment of child support, on his or her own initiative, provided special circumstances exist and it would be both just and equitable and otherwise proper to do so. This procedure is known as a Registrar Initiated Change of Assessment (“RICA”) [see Assessment Act at section 98L].
Section 98L is the central provision in the RICA process and provides one ground alone for the Registrar to depart from an administrative assessment of child support. The ground is that it would be unjust and inequitable to allow the applicable child support assessment to stand because of the income, earning capacity, property and financial resources of either parent concerned.
The letter to Mr Tasman of 16 January 2008 was the start of the RICA process. Pursuant to section 98M of the Assessment Act, the Registrar is required to provide written notice, to each of the parties to any child support assessment concerned, if he or she is considering varying the assessment, including any decision to vary the child support income of either parent involved in the assessment in question and inform each such party that he or she has a right of reply before such a decision is taken.
Section 98M requires the Registrar to provide a summary of the information available to the Agency, which it contends justifies a change in any administrative assessment, to any party potentially affected by such change so that that party can formally respond and place any information which he or she considers relevant before the decision maker concerned.
The form of any such reply is mandated by section 98N and requires the Registrar to provide any reply received by the Agency to the other party or parties to the child support assessment in question. The section contemplates a mechanism whereby the Agency can provide salient details to the parties concerned so that each can respond formally before any decision to change a child support assessment is made.
Although Mr Tasman does not allude specifically to the provisions of section 98M, he complains about the failure of the Registrar to notify him effectively process, an event which he characterises as “not … consistent with the legislation and … a denial of natural justice.”[3]
[3] See Mr Tasman’s affidavit filed 17 July 2009 at paragraph 21
Mr Tasman acknowledges that the letter of 16 January 2008, which appears in the documents tendered before the SSAT, was created and bears his correct mailing address, both now and at the applicable time. As such, he has no explanation as to why the letter did not reach him. The letter concerned also alludes to some attempts, apparently made by Agency staff, to contact him by telephone. Mr Tasman points to the absence of any file notes on the CSA file to verify these alleged phone calls, about which he is dubious.[4]
[4] Ibid at paragraph 17
There is no doubt that Mr Tasman did not formally reply to the letter of 16 January 2008. This, of itself, did not prevent the Registrar proceeding with the RICA process. As such, delegates of the Registrar served notices on Mr Tasman’s employer and on his bank requiring each to provide information to the Agency about his remuneration and financial affairs respectively.
In particular, pursuant to section 120 of the Child Support (Registration & Collection) Act 1988 a notice was served on [employer omitted] requiring it to disclose to the Agency details of Mr Tasman’s employment and remuneration. A similar notice was served on the ANZ Bank requiring it to provide the Agency with details of Mr Tasman’s accounts held with it.
In addition, a delegate of the Agency interviewed Ms Tisdall, who advised that she believed that Mr Tasman was engaging in some form of salary sacrifice designed to reduce his gross wage. Ms Tisdall further advised that she believed that Mr Tasman had a higher income than that which he had disclosed to the Child Support Agency because she believed he was driving a new four wheel drive vehicle and owned a house worth $350,000.00.
An independent Lands Title Office search, undertaken by the Child Support Agency, confirmed that Mr Tasman had interests in two pieces of real property. One of the properties concerned was the address at [H] to which the Agency had forwarded its letter of January 2008. The ANZ Bank provided information which disclosed that Mr Tasman held a residential investment loan and a home loan with the bank.
[Employer omitted] responded to the notice addressed to it on
17 December 2007. It advised that Mr Tasman had been employed by it since 1 April 2004. His employment was described as “currently ongoing”. It was indicated that he was paid at an hourly rate of $24.59706 and worked 37.50 hours per week. This equated to a gross salary of $47,964.00 per annum.
The written response of [employer omitted] included the following statement:
“If this is in relation to Mr Tasman paying maintenance, we had previously received an advice to deduct payments. However, he has salary sacrifice deductions and the total of these take him below the protected earnings amount.”
The information from [employer omitted] was the basis for a recommendation to change the basis of the child support assessment to reflect a child support income of around $47,000.00 for Mr Tasman. As a consequence, on 28 July 2008, the acting state manager of the Child Support Agency wrote to Mr Tasman again. The letter, in part, read as follows:
“The Child Support Agency wrote to you on 16 January 2008 to notify of a possible change to your current child support assessment.
Before we decide if your assessment will be changed, we have to consider (sic) child’s needs and the financial circumstances of both parents. In the meantime, your assessment will remain the same. What this means for you:
Our information suggests that the income used to calculate your current child support assessment does not properly reflect your capacity to pay. In particular, there is an indication that your taxable income is not reflective of your salary package. The approximate value of your salary is $47,964.00 per year.
The Child Support Agency is considering changing the income used in calculating your child support assessment to take into account the value of your amounts you salary sacrifice. This may result in an increase to the amount you are required to pay.”
The letter went on to indicate that Mr Tasman could provide any further information, in respect of the possible change of assessment and, if he wished, could also attend a conference with a Senior Case Officer to discuss the issue. He was advised that if he did not respond to the letter in question, his case would be reviewed by a Senior Case Officer nonetheless.
Accordingly, it seems to be clearly the case that Mr Tasman was advised of the fact that the Agency did not believe the previous administrative assessment properly reflected his income earning situation. He was given an opportunity to respond formerly to this assertion, either in writing or at a case conference. As I understand matters, Mr Tasman does not assert that he did not receive this letter.
The letter also indicated to Mr Tasman, the Senior Case Officer so nominated would make a decision, in respect of the change of assessment issue, within 75 days. On Mr Tasman’s calculation this period of 75 days expired on 10 October 2008. There is no controversy that the actual decision concerned was made on 15 October 2008. This seems to be an inchoate source of complaint, so far as Mr Tasman is concerned.
The next step of the RICA was for the Child Support Agency, on behalf of the Registrar, to appoint a conference for Mr Tasman and Ms Tisdall to attend, if they wished, to make any submissions, concerning the proposed change of assessment, to the Registrar’s delegate – the Senior Case Officer - who had been nominated to make the decision concerning the issue in question.
Section 98Q sets out the procedure which the Registrar (or his delegate) is required to follow in making any decision in respect of a RICA. It is essentially a three step decision making process. Firstly the Registrar may act on the basis of any information available to the Child Support Agency, to determine whether special circumstances exist sufficient to justify the departure to depart from any relevant child support assessment. Secondly, the Registrar may have regard to any replies, which have been received from any party affected by such a child support assessment, pursuant to the provisions of section 98N.
Thirdly, pursuant to section 98Q(2) the Registrar is required to give “an opportunity” to the parties to any applicable child support assessment “to appear before the Registrar, and be heard by him or her, if they so wish.” The intention being that the RICA review process is transparent and each party to it can present appropriate submissions and has a right to be properly heard about any salient issue arising before any decision is made.
In carrying out any hearing convened pursuant to section 98Q and in the making of any decision following such a hearing, the Registrar is not bound by any rules of evidence and may conduct the necessary hearing and inquiry, as well as the investigations pertinent to it, in any manner in which the Registrar “thinks fit” [section 98Q(4)].
Such a conference was convened for 21 August 2008 and letters to this effect were sent to both Mr Tasman and Ms Tisdall on 29 July 2008. Again, Mr Tasman does not assert that he did not receive the letter concerned, which contained the following sentence:
“If you decide not to participate, we will make a decision based on the information we have available.”
Mr Tasman complains that the conference concerned was nominated by the Child Support Agency to be “a telephone conference”. As such, he contends he was not given the opportunity to attend in person, which was his preference. In particular, Mr Tasman asserts that it was well known, or should have been well known, to the Agency and its delegates and employees, from a perusal of his file, that he was a “no phone” customer of the Child Support Agency.
As a consequence, Mr Tasman asserts that the Registrar denied him natural justice because he was not afforded a right to be heard, prior to a decision being made about the RICA. By necessary implication,
Mr Tasman argues that the strict provisions of section 98Q were not followed and accordingly the RICA procedure is again vitiated by error. It is further his position that the SSAT did not appropriately address this issue.[5]
[5] See Mr Tasman’s affidavit filed 17 July 2009 at paragraph 29
The conference appointed for 21 August 2008 was presided over by Senior Case Officer P. Ms Tisdall attended the conference by telephone. Mr Tasman did not attend. The Senior Case Officer delivered her decision on 15 October 2008.
As previously indicated, this was more than 75 days after the notification to Mr Tasman that the Agency was contemplating changing the basis of the applicable child support assessment and inviting comment from him.
In the decision dated 15 October 2008, Senior Case Officer P summarised the investigations conducted by the Registrar, into Mr Tasman’s financial affairs, as follows:
“The Child Support Registrar conducted an investigation into
Mr Tasman’s financial affairs. When doing so the Registrar considered Mr Tasman’s assets and resources including where applicable, motor vehicles, real estate, recent taxation returns, banking records, and credit card expenditure. The Registrar noted an estimate lodged by Mr Tasman on 25 June 2007 in which he sated that he had gone from full-time to part-time employment. However, in a response to a s120 notice dated 17 December 2008, Mr Tasman’s employer indicated that he worked 37.5 hours per week and earned $24.59706 per hour, which annualises to $47,964. The employer further indicated that
Mr Tasman salary sacrificed a portion of his income. Lands Title Office searches reveal that Mr Tasman is involved in the ownership of two properties, one solely and one jointly with another. He has loans in relation to these. The Registrar therefore concluded that Mr Tasman’s financial capacity would be more properly represented by an amount of $47,964, which is his annual full-time salary sacrifice. It was noted that Mr Tasman may also be in receive of some non-taxable [omitted] income and have some investment income, though it was considered the latter was likely to be offset by the interest expenses on the loans.”
In summary, information available to Senior Case Officer P via the Child Support Agency suggested that Mr Tasman was in full-time employment and, by arrangement with his employer, was engaged in a salary sacrifice scheme, which reduced the level of income actually received in his hand.
After analysing Mr Tasman’s financial circumstances, particularly his involvement in the ownership of two pieces of real property and the loans associated with those properties, the Senior Case Officer concluded that Mr Tasman’s financial capacity to pay child support would be more properly represented by a child support income of $47,964.00.
In reaching this decision, the Senior Case Officer (as the Registrar’s delegate) clearly acted on evidence which she considered justified a departure from the applicable administrative assessment of child support. She had such a discretion pursuant to section 98Q(1)(a) of the Assessment Act.
The Registrar does not have authority to compel a party to attend a RICA hearing before any change of assessment decision is made. [Assessment Act section 98Q(3)]. Again the intention being that the decision making process be reasonably expedient. The Registrar’s obligation is to give the parties an opportunity to appear at any RICA hearing.
In the decision of 15 October 2008, Senior Case Officer P set out details of the inquiries which she personally undertaken. These included contacting [employer omitted] on 21 August 2008 and more recently Mr Tasman’s superannuation fund, [S] Super, in respect of an income protection scheme applicable to Mr Tasman’s circumstances, arising from his membership of the fund in question.
These inquiries revealed that since 5 January 2008, Mr Tasman had been earning $22.07949 per hour and working 37.5 hours per week, which equated to $43,055.00 per annum. However, between 7 July 2008 and 29 August 2008, Mr Tasman had been on unpaid leave. There was some uncertainty as to whether, at the time of the decision, Mr Tasman remained on unpaid leave, as on 15 October 2008,
Mr Tasman had indicated to the Child Support Agency that this was the case.
Information was also available to the Child Support Agency that indicated Mr Tasman had executed a tax file number declaration with his superannuation fund on 16 July 2008. This led to Senior Case Officer P contacting the fund in question, which advised that
Mr Tasman was in receipt of income protection payments from the fund as a result of his membership of it.
As a consequence of this information, the Senior Case Officer concerned reached the following conclusions.
“Mr Tasman’s annual income before salary sacrifice is $43005. 75% of this is $33,391. This is significantly more than the child support income amount used for him in the current assessment. Ms Tisdall relies on a disability support pension to support herself and [Y]. I accept that she requires an appropriate amount of child support from Mr Tasman to assist with the costs of raising [Y]. I therefore propose to set an adjusted taxable income amount of $32000 for Mr Tasman for the period 1 February 2008 to 1 October 2009. This takes into account the fact that
Mr Tasman was earning at a higher rate before he went on unpaid leave and that there may be a short period during which income protection payments were not received by Mr Tasman.
Mr Tasman would have been on notice of a possible increase to the assessment from late January 2008. The end date will provide the parents with some certainty and give them each time to lodge the relevant taxation returns. The effect of this decision will be to increase the annual rate of child support transferrable by
Mr Tasman from $339 to approximately $3162 and increasing
Mr Tasman’s arrears.”
Accordingly, Senior Case Officer P decided that for the period from
1 February 2008 to 1 October 2009 Mr Tasman’s adjusted taxable income should be set at $32,000.00. This increased his annual rate of child support from $339.00 to approximately $3,162.00 and created an amount of arrears.
This decision was conveyed to Mr Tasman, who lodged an objection in respect of it on 10 November 2008. The basis of his objection was that the Senior Case Officer concerned had failed to consider the following factors:
·The amount of income set for Mr Tasman was inconsistent with his actual taxation return for the financial year ending 30 June 2008;
·[X] had been taken into account in the assessment;
·He had no means of paying the child support arrears.
The objection was considered by Mr V on 8 January 2009. He disallowed the objection and confirmed the decision of Senior Case Officer P. By this stage, more information had come to light within the Agency. The most significant of this evidence was that Mr Tasman’s income protection payments had stopped on 23 October 2008, although the payments had been approved up to 22 January 2009.
The income protection payments had apparently been ceased, at
Mr Tasman’s request. Thereafter, he had successfully applied for sickness benefits from Centrelink. At the time of the objection hearing, he remained in receipt of social security payments.
In the objection decision, Mr V wrote as follows:
“In determining a person’s financial capacity to support the children of the assessment, I am not limited to a consideration of income only, but must also consider access to other financial resources and property. To this end, I made enquiries of the superannuation fund regarding Mr Tasman’s entitlement to income protection payments. They advised that Mr Tasman had made contributions via fortnightly salary sacrifice until 17 July 2008. For the period 18 July 2008 to 23 October 2008 he received income protection payments of $1,241.97 per fortnight, which equates to $32,291.22 per annum. The fund also advised that Mr Tasman was entitled to continue receiving payments until at least 22 January 2009, however he voluntarily requested the payments cease. The fund has also confirmed that Mr Tasman is still entitled to receive income protection payments and would be further entitled to make retrospective application for the payments he has forgone since 23 October 2008.
While Mr Tasman is not presently receiving income protection payments and has instead chosen to receive a lower income by way of Centrelink benefits, I am mindful that access to a higher income via the income protection payments remains available to him. On this basis, I am satisfied that the continued access to these payments represents a financial resource to Mr Tasman which is substantially in excess of the income amount used in the child support assessment. I therefore find Reason 8 established.”
This was the background to the hearing in the SSAT, which occurred after Mr Tasman had applied for a review of the disallowance of his objection, on 6 February 2009.
The SSAT hearing took place on 12 May 2009. Ms Tisdall did not take part in the hearing, as she had been removed as a party to the application, at her request, on 11 March 2009. The Registrar of the Child Support Agency was not represented at the hearing.
The SSAT’s decision was that the decision under review was set aside and in substitution thereof it determined that:
·From 16 January 2008 to 30 June 2008, Mr Tasman’s child support income be set at $43,055.00 per annum.
·From 1 July 2008 to 1 October 2009, Mr Tasman’s adjusted taxable income be set at $32,291.00 per annum.
It is this decision of the SSAT, which Mr Tasman seeks to appeal. His notice of appeal, filed 17 July 2009, sets out 22 grounds of appeal as follows:
“1. That the Social Security Appeals Tribunal erred in their determination that the child [X] was an eligible child to be included in the Child Support Agency's child support assessment dated the 1 July 2009 for the period 29 July 2008 to the 13 September 2008.
2. That the Social Security Appeals Tribunal erred in their determination in setting the amount of child support income at $43,055.00 for the period 16 January 2008 to 30 June 2008.
3. That the Social Security Appeals Tribunal erred in their determination to not accept a terminating event, being the acceptance of the adjustable taxable income of$14,391.00 taken from the 2007/2008 tax return, and accepted by the Registrar -Child Support Agency.
4. That the Social Security Appeals Tribunal erred in their determination in setting the amount of child support income at $32,291.00 for the period 1 July 2008 to 1 October 2009.
5. That the Social Security Appeals Tribunal failed to take into account the payer was on Centrelink Sickness Benefits.
6. That the Registrar -Child Support Agency and the Social Security Appeals Tribunal have failed to provide any proof of the dispatch and receipt of RICA documents sent on the 16 January 2008.
7. That the RICA process requires grounds to be provided to the parties to dispute, and that this process did not occur, and was not explored by the Social Security Appeals Tribunal and denying natural justice.
8. That the RICA process commenced on the 16 January 2008 had no substantial basis for being initiated as there was minimal or no current outstanding child support debt.
9. That the RICA process commenced on the 28 July 2008 refers to the previous RICA process dated the 16 January 2008 and still fails to provide proof of any new grounds for a departure being undertaken by the Registrar - Child Support Agency, especially given the Registrar - Child Support Agency had just accepted a terminating event being the taxable income of $14,391.00 for the 2007/2008 taxable year.
10. That the Registrar - Child Support Agency failed to allow personal attendance to dispute the RICA process and that the Social Security Appeals Tribunal failed to explore this matter.
11. That certain documentary material provided by the Registrar -Child Support Agency marked as exhibit C1 and C2 to the Social Security Appeals Tribunal was irrelevant to the appeal and was read by the Social Security Appeals Tribunal causing bias and preventing natural justice to occur.
12. That the Registrar - Child Support Agency failed to make available freedom of information documents to the Social Security Appeals Tribunal to take into consideration of it's final determination.
13. That the Social Security Appeals Tribunal and the Registrar - Child Support Agency failed to take into account prior commitments of each parent to support himself.
14. That the Social Security Appeals Tribunal failed to take into account the reluctance of the payee to provide access and to create alienation of the children, which would assist in reducing associated costs of raising the children to the payee.
15. That the Social Security Appeals Tribunal has failed to provide adequate proof that my income from 1 July 2008 to 1 October 2009 is $32,291 per annum.
16. If the Registrar - Child Support Agency or the Social Security Appeals Tribunal can compel a person to provide medical information or make a claim for income protection payments.
17. That there has been no proof provided to support that something special was evident in the instigation of the RICA.
18. That the Registrar - Child Support Agency or the Social Security Appeals Tribunal failed to consider or investigate the children's desires or intentions to share in the standard of living of both parents, and what the intentions of the parents were for the financial support of the children.
19. That the Registrar - Child Support Agency failed to conduct a telephone interview on the 16 January 2008 with the payer in relation to the RICA but instead conducted a telephone interview with the payee on the 16 January 2008.
20. That the Registrar - Child Support Agency failed to consider counselling in relation to the payer and payee, when the Registrar - Child Support Agency was aware of the deep rooted problems associated with the percentage of care and access to the children by the payee, and that the 'special circumstances' of this issue should have resulted in a change to the level of care.
21. That the Social Security Appeals Tribunal has erred in accepting the basic self support amount is just and equitable to meet the applicant's commitments prior to the child support period.
22. That the Registrar - Child Support Agency failed to allow a limited child support agreement to be instituted at the verbal request and agreement of the payer and payee, and that the Social Security Appeals Tribunal failed to take this into consideration.”
As previously indicated, Mr Tasman seeks a raft of orders, which he claims are ancillary to his appeal. However, as I understand his application, in respect of the appeal specifically, he seeks the following order:
“That the decision of the Social Security Appeals Tribunal made on 12 June 2009 be set aside.”
The nature of the hearing before the SSAT
Mr Tasman is entitled to apply to the SSAT for a review of the decision of the Child Support Registrar pursuant to the provisions of section 94 of the Child Support (Registration & Collection) Act 1988 (“the Collection Act”).
The SSAT is directed to provide mechanisms for review of decisions of the Child Support Registrar, following reconsideration, that are fair, just, economical, informal and quick [Collection Act at section 88].
The powers of the SSAT, on review of a decision of the Registrar, are set out in Division 5 of Part VIIA of the Collection Act. The SSAT may affirm, vary or set aside any applicable decision and either substitute its own decision or refer the matter back to the registrar for reconsideration.
The SSAT is conferred with all the powers and discretions which are conferred on the registrar of the Child Support Agency both by the Assessment Act and the Collection Act [Collection Act at section 103T].
As such, the SSAT has the same powers to obtain information as are conferred on the Registrar of the Child Support Agency. The hearing before the SSAT is not bound by legal technicalities or the strict rules of evidence [Collection Act at section 103N]. Importantly, the SSAT has a discretion to take sworn evidence for the purpose of its review function [Collection Act at section 103G].
Accordingly, the SSAT stands in the shoes of the decision maker whose decision it is reviewing. It has the same functions and powers. It is empowered to make findings of fact and to determine the evidence on which those findings of fact are to be based. As such, the SSAT must answer the same questions that were before the Senior Case Officer and Objections Officer concerned and apply the same legislative provisions. As such, the decision making process begins anew.[6]
[6] See PJ & Child Support Registrar (SSAT) Appeal [2007] FMCAfam 829
Pursuant to section 103X of the Collection Act, if the SSAT makes a decision on review, it is required to provide written reasons for its decision within fourteen days of such decision. In this case, the SSAT has provided such reasons. These are annexed to Mr Tasman’s affidavit filed 17 July 2009.
It is apparent from those reasons that Mr Tasman provided written submissions to the SSAT, as he was entitled to do [see Collection Act at section 103C], and also provided oral evidence.
Pursuant to section 110K of the Collection Act, when an appeal from a decision of the SSAT has been instituted, the Executive Director of the SSAT is required to forward to this court all documents, which were before the SSAT in relation to the proceedings which have been appealed and any other documents which are relevant to that appeal.
As such, I have been provided with a copy of Mr Tasman’s written submissions to the SSAT, amongst many other documents, particularly the material before Senior Case Officer P and Objections Officer V. The provisions of section 110K echo those of section 95(3) which requires the CSA to forward relevant documents to the SSAT.
I have not been provided with a transcript of Mr Tasman’s oral evidence. As previously indicated, it is one of Mr Tasman’s applications that this court direct the Executive Director of the SSAT to provide such a transcript to this court.
There is no specific provision within either the Assessment Act or the Collection Act dealing with the provision of transcript of proceedings before the SSAT. As previously indicated, the SSAT is directed to pursue its functions informally and economically. In particular, pursuant to section 103P of the Collection Act, hearings before the SSAT are to be held in private.
Section 110C of the Collection Act provides that appeals to this court, from decisions of the SSAT, are to be made in the manner prescribed by the Federal Magistrates Court Rules. The applicable rule is Rule 25A.05 of the Federal Magistrates Court Rules2001.
This rule directs any person seeking to appeal a decision of the SSAT to attach to the relevant notice of appeal a copy of the SSAT’s decision and the statement of reasons for that decision. Pursuant to section 103X of the Assessment Act, the SSAT is required to provide these documents within fourteen days of its decision. It is not enjoined to provide a transcript of its proceedings.
By way of analogy, in appeal proceedings before the Family Court, the relevant rules provide that it is the responsibility of the appellant concerned to obtain any necessary transcript required to conduct the appeal concerned.[7] It is a common situation that many such appellants find it difficult to provide such a transcript, usually for financial reasons and accordingly they make application to the court for it to make provision for the transcript concerned.
[7] See Family Law Rules, rule 22.18
The Full Court has determined that it has a discretion to provide relevant parts of any transcript of proceedings, subject to appeal, as part of its general supervisory power, to ensure that the best interests of justice are served in the conduct of the appeal concerned. However, the Full Court was of the view that the discretion should only be exercised in “exceptional cases”.[8]
[8] See Forbes & Bream [2008] FamCAFC 189
It would seem to me that this court has authority to order the production of a transcript of proceedings, if the interests of justice require it. However, such a power is extremely limited and must be exercised with care, particularly given the absence of specific legislative authority to do so.
In addition, I must bear in mind that it is the Legislature’s clear intent that the appeal process in the SSAT should be simple and cost effective. It has also specifically limited the nature of appeals to this court from the SSAT.
In my views these factors are also relevant in determining whether the court should take the unusual step of requiring a subordinate tribunal to provide a transcript, where that tribunal is not under a legislative duty to do so but is required to provide reasons.
The nature and legislative basis of appeals to this court from the SSAT
The nature of an appeal to this court, from a decision of the SSAT, is governed by the provisions of Division 3 of Part VIII of the Collection Act, in particular section 110B, which reads as follows:
“A party to a proceeding before the SSAT under Part VIIA may appeal to a court having jurisdiction under this Act, on a question of law, from any decision of the SSAT in that proceeding.”
In the earlier SSAT appeal brought by Mr Tasman, I discussed the nature of an appeal on a “question of law”.[9] I adopt those observations for the purpose of the current proceedings.
[9] See Tasman & Tisdall [2008] FMCAfam 126 at paragraphs 40-47
In particular, I reiterate 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.[10]
[10] See Apthorpe v Repatriation Commission (1987) 13 ALD 656 at 666
In summary, an appeal on a question of law:
·is not a review on the merits or a rehearing;
·as such, an appeal on a question of law is not one in which findings of fact, per se, can be called into question;[11]
·however, bearing in mind the statutory intent implicit in Part VIII of the Collection Act and the purpose of the Federal Magistrates Court itself, in dealing with SSAT appeals, the court should not be unduly legalistic or pedantic, particularly where the appellant concerned is self-represented;
·in reviewing a decision of the SSAT for error, the court should not examine the decision in question with an eye “keenly attuned to the perception of error”.
[11] See LDME & JMA [2007] FMCAfam 712 at paragraph 29
In brief terms, the requirement that a hearing be procedurally fair requires the decision making tribunal concerned to apply the rules of natural justice. There are two traditional rules of natural justice. Firstly, the hearing rule which requires a decision maker to hear a person before making a decision which affects the interests of that person. Secondly, the bias rule which provides for the disqualification of a decision maker where doubts arise as to the actual or perceived impartiality of the decision maker concerned.[12]
[12] See Aronson & Dyer: Judicial Review of Administrative Action (2nd Edition) 2000 LBC Information Services at p.300
Mr Tasman is not legally qualified. He is however a determined advocate for his cause and has drafted many grounds of appeal and has sought a raft of orders. My role is to examine the case overall and attempt to ascertain whether any questions of law arise which justify any of the orders sought, particularly whether the decision of the SSAT should be set aside.
In Collector of Customs v Pressure Tanker Pty LtdandPazzolanic Enterprises Pty Ltd,[13] the Full Court of the Federal Court, in respect of the Administrative Appeals Tribunal, characterised the nature of an appeal from a fact finding and decision making tribunal as follows:
“… the nature of the task of this court is clear. It is to leave to the tribunal of fact decisions as to the facts and to interfere only when the identified error is one of law.”
[13] Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprise Pty Ltd [1993] 43 FCR 280
In my view the same rationale applies to an appeal to this court from a decision of the SSAT.
The hearing before the SSAT and its findings
The SSAT’s decision was one of eighteen pages, which was delivered approximately one month after the hearing in question. The SSAT is directed to provide a mechanism for the review of child support decision that is fair, just, economical and quick [Collection Act at section 88].
Accordingly the role of the SSAT is not to “deliver judgments of juris prudential excellence when delivering its reasons”.[14] Rather it is required to follow the legislative pathway provided by section 98L of the Assessment Act and determine whether the sole ground for departure provided by the section has been met. In so doing, it is required to ensure the requirements of procedural fairness are met.
[14] The phrase belongs to Halligan FM. See LDME & JMA (Supra) at paragraph 35
The SSAT found that [X] was in Ms Tisdall’s sole care between 29 July 2008 and 13 September 2008. This was a finding that was open to it on the evidence available.
The SSAT also noted that it was Mr Tasman’s position he had not received the letter from the Child Support Agency, dated 16 January 2008. In so doing, the SSAT noted there was some controversy as the precise date on which Mr Tasman had been advised of the Agency’s “intention to consider changing his assessment”.
However, the SSAT categorised the Child Support Agency’s letter of 28 July 2008 to Mr Tasman, as being one in express terms advising him of a possible change in the applicable assessment on the basis that his taxable income was not reflective of the value of his salary package, given that his actual salary, before packaging, was $47,967.00.
The SSAT noted that there was a dispute about whether Mr Tasman had actually advised the Child Support Agency that he did not wish to attend at the conference before Senior Case Officer P on 21 August 2008.
The SSAT noted the evidentiary issues which had arisen before
Senior Case Officer P and the Objections Officer concerning firstly the issue of Mr Tasman’s salary sacrifice in the first part of 2008 and secondly the issue of income protection payments, which had arisen since Mr Tasman had been on leave without pay from 7 July onwards.
Accordingly, the SSAT categorised the case as being one concerned with whether the administrative assessment in question was properly reflective of Mr Tasman’s financial circumstances, particularly his capacity to derive income and the extent of that capacity in dollar terms. As such the SSAT placed its inquiry into the context of the ground for departure provided by section 98L.
Under the heading “Issues” the Tribunal indicated that the issues for it to determine were:
·Whether, in the special circumstances of the case, administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by Mr Tasman for [Y], and for a brief period, for [X] also, because of the income, earning capacity, property and financial resources of either parent; and
·That it would be just and equitable as regards the children and parents and otherwise proper to make a particular determination to depart from an administrative assessment.[15]
[15] See decision dated 8 January 2009 at paragraph 16
The Tribunal delineated the documents before it, in the making of its decision, with some precision. They included material from the Child Support Agency file, which had been earlier forwarded by the Registrar pursuant to the provisions of section 95(3) of the Collection Act and some documents which had been provided by Mr Tasman himself, following a pre-hearing conference.[16] The documents provided by
[16] Section 95(3) requires the Registrar of the Child Support Agency to provide to the Executive Director of the SSAT all relevant documents to the decision under review. Pursuant to section 103 of the Collection Act, the Executive Director of the SSAT may convene a pre-hearing conference and make directions about the provision of evidence to be brought before the SSAT at any subsequent hearing.
Mr Tasman included the following:
·A statement of his financial circumstances dated 18 February 2009. This document indicated Mr Tasman was on “sick leave without pay” and was in receipt of sickness benefits of $245.00 per week and rent assistance of $50.00 per week. Further the document indicated Mr Tasman’s only assets were household contents of $2,000.00 and his [S] Superannuation of $146,325.00, whereas his debts, principally to HECS amounted to $8,275.00.
·
A medical certificate dated 22 April 2009 which indicated that
Mr Tasman was unfit for work from 1 July 2008 until 1 October 2009 due to depression and anxiety.
·A letter from [employer omitted] dated 24 April 2009, which indicated that Mr Tasman was on unpaid sick leave from 7 July 2008 until 30 June 2009, during which period he had actually been paid sick leave between 23 October 2008 and 7 November 2008.
·Correspondence from the Child Support Agency to Mr Tasman concerning a complaint Mr Tasman had made in May of 2006 regarding the quality of his interaction with a Child Support Agency officer via the telephone and his request that all future communication with him be in writing.
·Further correspondence noted that the Child Support Agency was a “phone first culture” and accordingly whilst Mr Tasman’s request to be contacted only in writing had been noted, there might be occasions when, due to the urgency of a situation, the Agency would want to contact him by telephone.
During the hearing the SSAT requested the Child Support Agency to provide an updated title search in respect of [address omitted], [H] – the property at which Mr Tasman resides – and a copy of its letter dated 16 January 2008.[17] Mr Tasman was given an opportunity to comment on these documents in writing and did so on 28 May 2009.
[17] Pursuant to section 103J of the Collection Act, the SSAT is entitled to ask the Registrar to provide it with any additional information or documents, which it believes is relevant to the decision under review.
The title search in question indicated that Mr Tasman had transferred his interest in the [H] property to Ms U “for no monetary consideration” on 9 January 2009. In his response, Mr Tasman indicated his view that this information had no relevance, as it could not have been considered by the relevant change of assessment officer.
Mr Tasman reiterated his position that he had never received the letter of 16 January 2008. In support of his position he pointed to five subsequent letters from the Agency which did not allude to this earlier piece of correspondence.
In its decision, under the heading “legislative framework” the SSAT set out the provisions of the Assessment Act and the Collection Act which it considered were applicable to its review function. These provisions can be summarized as follows:
·Section 89 of the Collection Act provided jurisdiction to the SSAT to review a decision of an objections officer of the Child Support Agency;
·Section 98L sets out the matters as to which the Registrar must be satisfied before making a determination, criteria similar to those in section 117(2). This is the three step process which applies in all departure applications.
·Section 98L(1)(a) provides for one ground of departure:
“… in the special circumstances of the case, application in relation to a child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child because of the income, earning capacity, property and financial resources of either parent.”
·Section 98L(2) provides that sections 117(4)-(9) apply to the Registrar as they would apply to a court dealing with a departure application.
The SSAT characterised its task, in respect of the ground provided by section 98L(1) as follows:
“It is convenient to begin by examining in the grounds of section 98L(1) is present. This involves consideration of the evidence pertaining to Mr Tasman’s income, earning capacity, property and financial resources.”[18]
Thereafter, the SSAT made findings of fact under the following headings: Mr Tasman’s income; his earning capacity; property and financial resources.
[18] See decision dated 8 January 2009 at page 6
The SSAT found that Mr Tasman was a full-time employee of [omitted], who had been on unpaid sick leave, apart from a fortnight in October/November, since 7 July 2008. The Tribunal also found, on the basis of the medical certificate tendered by Mr Tasman, that he suffered from depression and anxiety and had been unfit for work from 7 July 2008. Both these findings were open to the Tribunal, on the basis of the evidence before it.
Accordingly, the Tribunal found that Mr Tasman was currently in receipt of a low income, constituted by social security payments. As a consequence, it chose to examine, as it was entitled to do, Mr Tasman’s income position prior to early July 2008, which period formed part of the relevant determination under appeal.
In examining this issue, the Tribunal had documentary evidence from Mr Tasman’s employer, [omitted], and other documents provided by him to the ANZ Bank.
In addition, as is clear from the reasons for decision, the SSAT inquired of Mr Tasman about the issue of his salary and how his employer distributed it on his behalf.
The Tribunal summarised this evidence as follows:
“Mr Tasman’s evidence was that he had a novated lease of a vehicle and sacrificed into superannuation.”[19]
The Tribunal also noted that the level of salary sacrifice into superannuation was confirmed by documentary evidence provided by the superannuation fund in question.
[19] Supra at page 7
On the basis of this evidence, the Tribunal made the following finding:
“In this regard, the Tribunal notes the evidence provided to Child Support Agency by [employer omitted] to the effect that as at 5 January 2008 Mr Tasman worked 37.5 hours per week at an hourly rate of $22.07, as an ongoing employee (folio 235 of exhibit C1). The Tribunal calculates that this rate equates to an annualised income of $43,055 before salary sacrifice. The information from [employer omitted] also confirmed that
Mr Tasman participated in salary sacrifice. Mr Tasman’s evidence was that he had a novated lease of a vehicle and sacrificed into superannuation. Subsequent information from
Mr Tasman’s superannuation fund (folio 49 of exhibit C1) is that Mr Tasman paid $565 per fortnight into superannuation, consistent with Mr Tasman taking significant advantage of his ability to salary sacrifice.”[20]
[20] See reasons at paragraph 39
Under the heading of “earning capacity” the Tribunal found that
Mr Tasman’s illness, as evidenced by his medical certificate, had impacted on his current earning capacity. As such, the Tribunal was satisfied that Mr Tasman had changed his pattern of earnings for legitimate reasons due to ill health and so his conduct was not vitiated by any of the criteria set out in section 117(7B) of the Assessment Act.
Sub-section 7(B) provides the relevant criteria to which the court must have regard in determining whether parent’s earning capacity is greater than that which is reflected in his or her income for the purposes of the child support assessment scheme. The section is crucial in “capacity to earn” cases and reads as follows:
“(7B) In having regard to the earning capacity of a parent of the child, the court may determine that the parent’s earning capacity is greater than is reflected in his or her income for the purposes of this Act only if the court is satisfied that:
(a) one or more of the following applies:
(i) the parent does not work despite ample opportunity to do so;
(ii) the parent has reduced the number of hours per week of his or her employment or other work below the normal number of hours per week that constitutes full‑time work for the occupation or industry in which the parent is employed or otherwise engaged;
(iii) the parent has changed his or her occupation, industry or working pattern; and
(b)the parent’s decision not to work, to reduce the number of hours, or to change his or her occupation, industry or working pattern, is not justified on the basis of:
(i) the parent’s caring responsibilities; or
(ii) the parent’s state of health; and
(c)the parent has not demonstrated that it was not a major purpose of that decision to affect the administrative assessment of child support in relation to the child.”
Accordingly, in the period covered by Mr Tasman’s medical certification, the SSAT found that Mr Tasman was not under utilising his income earning capacity for any illegitimate purpose. It accepted he was unable to pursue his customary form of employment because of ill health.
A significant proportion of the SSAT’s reasons for decision is occupied by the question of Mr Tasman’s property. In particular, the Tribunal was interested to explore the circumstances surrounding the transfer of Mr Tasman’s interest in the property situated at [address omitted], [H] to Ms U.
The Tribunal members apparently questioned Mr Tasman about his interest in the [H] property, which in the relevant title search is described as being in [suburb omitted], rather than in [H]. Notwithstanding the imprecision regarding the description of the property in question, the Tribunal considered Mr Tasman to be “somewhat evasive” about the issue.
Mr Tasman deposed that he had transferred the property in question to his former de-facto partner in settlement of property issues with her. He further deposed that he continued to live in the property and pay her rent of $160.00 per week. It is clear therefore that Mr Tasman was given an opportunity to respond to the Tribunal’s concerns about the property.
The Tribunal summarised the evidence in respect of this issue and its findings as follows:
“The Tribunal is left with the impression that all it can really be satisfied of in relation to this transaction is that Mr Tasman’s property, worth $350,000, was transferred to a related party for nil consideration on 9 January 2009. The circumstances behind the transaction are not convincingly explained. The Tribunal does not accept any other aspect of Mr Tasman’s evidence in relation to the transaction. It seems to the Tribunal to be particularly unlikely that such a transaction would be entered into for the purposes described by Mr Tasman without any advice or documentation.
The Tribunal is inclined to suspect that the transaction is the product of Mr Tasman taking steps to divest himself of the asset. This was put to Mr Tasman at the hearing. Mr Tasman’s response to the Tribunal did not lead it to reach a different view.”[21]
[21] Supra at paragraphs 52 and 53
However, notwithstanding this finding, which seems to go to an assessment of Mr Tasman’s overall credit, the Tribunal found that
Mr Tasman no longer had any legal interest in the [H] property, which was relevant for the purposes of its consideration of section 98L of the Assessment Act.
Accordingly, issues to do with the transfer of the [H] property were not seminal to the SSAT’s decision. Rather, as the Tribunal itself said, the nub of the matter lay with a consideration of Mr Tasman’s financial resources, particularly in his potential to claim for income protection payments as a consequence of his ill health, which was a benefit available to him as a consequence of his superannuation fund membership.
The SSAT concluded that Mr Tasman had access to a financial resource in the form of this income protection payment. The Tribunal reached this conclusion on the basis of the following evidence, which was available to it:
·Mr Tasman was a contributing member of the Super [S] Superannuation Fund.
·Super SA had concluded that Mr Tasman met the legislatively mandated criteria of being temporarily incapacitated for work.
·As such, he had been approved to receive income protection payments from 1 July 2008 to 22 January 2009.
·These income protection payments had been made electronically to Mr Tasman’s bank account.
·However, the last payment had been made on 23 October 2008, at Mr Tasman’s request.
·Mr Tasman had been paid $1,241.97 gross each fortnight between 18 July 2008 and 23 October 2008. It was open to Mr Tasman to access income protection payments up until 22 January 2009.
·It was also open to Mr Tasman to retrospectively apply for income protection payments, so long as he was able to demonstrate that he was unable to work during any relevant period.
These matters were put by the Tribunal to Mr Tasman, who did not contradict them, other than that he stated he believed that he would be better off on Centrelink benefits, as he was unable to meet his debts whilst receiving income protection payments. The SSAT rejected this proposition, as it was entitled to do.
The basis of Mr Tasman’s position seems to turn on the fact that, prior to taking unpaid sick leave, he had been able to considerably reduce his income tax liability through a salary sacrifice mechanism, which allowed him to channel significant portions of his salary into the payment of a novated lease relating to a motor vehicle and other mortgage repayments.
This salary sacrifice mechanism was not available to Mr Tasman in respect of income paid to him through the income protection scheme, which he was eligible to access as a result of his membership of Super [S]. The Tribunal rejected this argument. It found as follows:
“Even after this explanation, Mr Tasman’s position that he would be ‘worse off’ on income protection payments remained difficult for the Tribunal to understand. It would seem to the Tribunal the novated lease and mortgage payments Mr Tasman referred to would need to be paid in any event. The Tribunal accepts that
Mr Tasman may have been required to pay more tax than he had previously. However, even still the Tribunal considers that more income would be available to him after income tax and child support were deducted given the difference between the income protection payments and the maximum rate of sickness allowance.”[22]
[22] Supra at paragraph 65
The Tribunal also rejected Mr Tasman’s submission that if he retrospectively applied for income protection payments, he may open himself to a possible charge of defrauding Centrelink for the period in question. However, the Tribunal did not consider that this was a valid reason for Mr Tasman not to pursue his entitlements. It found as follows:
“After considering the documentary evidence available to the Tribunal concerning the income protection payments, and
Mr Tasman’s evidence as to why he elected not to continue receiving those payments and does not wish to claim them now, the Tribunal finds that the income protection payments represent a financial resource available to Mr Tasman both in terms of ongoing income, and as a lump sum for the period where Mr Tasman was entitled to the payments but did not receive them. In addition to the findings the Tribunal reached concerning the availability of the income protection payments to Mr Tasman, should he choose to apply for them, the Tribunal also took into account the medical evidence indicating he is incapacitated for work and formed the view that if Mr Tasman were to apply for income protection payments, and for arrears of income protection payments, those requests would likely be granted by the superannuation fund.”[23]
[23] Supra at paragraph 69
The Tribunal quantified this financial resource as being equal to an annual amount of $32,291.22 it was satisfied that Mr Tasman had financial resources available to him both in the form of his ability to access ongoing income protection payments and also to seek a lump sum representing the arrears of such entitlement.
Having made this evidentiary finding, which in my view was open to it on the available evidence, which had been put to Mr Tasman for his comment, the Tribunal thereafter followed the three step process created by section 98L of the Assessment Act. As previously indicated, this was the correct process for the Tribunal to follow.
Firstly, the Tribunal found that the disparity between the income utilised for the relevant child support assessment and that which would be utilised if the financial resource available to Mr Tasman, in the form of his income protection payments, was utilised represented special circumstances for the purposes of section 98L(1)(a) of the Assessment Act.
Secondly, the Tribunal considered that it would be just and equitable, regarding both the children concerned and Mr Tasman and Ms Tisdall to depart from the applicable child support assessment. In particular, it found that Ms Tisdall was a person with a low income, who had minimal property and no significant financial resources available to her.
The Tribunal found that it would be just and equitable to change the administrative assessment of child support. I can find no fault in the Tribunal’s reasoning or any error in the application of the legal principles which it applied.
Thirdly, the Tribunal also concluded that it would be otherwise proper for it to depart from the irrelevant administrative assessments of child support because “to do so would likely reduce the burden on the community represented by Ms Tisdall’s receipt of family tax benefit”.[24]
[24] Supra at paragraph 99
Having carefully considered the reasons of the SSAT I can find no errors of law in its two principle findings. Firstly that, in real terms, putting aside the question of how it was packaged, Mr Tasman had a salary of $43,055.00 per annum for the period 16 January 2008 to
30 June 2008.
This finding was based on evidence provided by Mr Tasman’s employer and came about following the multiplication of his hourly rate of pay by the number of hours he was indicated to have worked in the period in question. This finding of fact was clearly open to the Tribunal on the evidence before it.
Secondly, the Tribunal found that in the period from 1 July 2008 to 1 October 2009, Mr Tasman had access to a financial resource amounting to $32,291.00 per annum in the form of his potential income protection payments. Again, this was a reasonable and logical finding flowing from the evidence available to the Tribunal. Neither finding is vitiated by legal error.
The Tribunal also considered one of the central complaints made by
Mr Tasman, namely that he had not received the letter dated 16 January 2008 and therefore the entire RICA process itself was tainted by error. In respect of this issue, the Tribunal found as follows:
“The evidence before the Tribunal demonstrates that notices, and the summary of the information the Registrar used to form the view that the registrar should make the determination (section 98M) were sent to Mr Tasman by ordinary post to his correct address. The Tribunal is satisfied that Mr Tasman was adequately served with the requisite documentation throughout the process. The question of what effect any failure on the part of the Registrar to comply with the obligations of service would have on the function of the Tribunal on review need not be explored.”[25]
[25] Supra at paragraph 108
I can ascertain no legal error in this aspect of the determination that
Mr Tasman was “adequately served with the requisite documentation throughout the process.” In particular, regulation 11A of the Child Support (Assessment) Regulations provides that any notice of communication made by or on behalf of the Registrar may be served on a natural person ‘by sending it by pre-paid post to the person’s address for service.”
The Tribunal also considered that the alleged failure of the agency to allow Mr Tasman and Ms Tisdall to enter into a limited child support agreement was not a relevant consideration for the SSAT. Given the structure of section 98L of the Assessment Act, I cannot see why this was a matter which legally fell within ambit of the SSAT’s statutory jurisdiction.
The specific grounds of appeal
Ground One – Mr Tasman has not provided any evidence to rebut the finding that [X] was an eligible child for the period in question. Accordingly, this ground must fail.
Ground Two
– the SSAT found Mr Tasman’s income to be $43,055.00 for the period between 16 January and 30 June 2008. I can see no error in this calculation, which was based on direct evidence provided by
Mr Tasman’s employer. The fact that this sum was distributed into a motor vehicle lease and superannuation sacrifice does not change its quality as income. I can find no legal or jurisdictional error in how the SSAT reached this conclusion. Accordingly this ground of appeal is dismissed.
Ground Three
– I do not understand how Mr Tasman’s taxable income for taxation purposes can be described as a terminating event for child support purposes. The essence of the RICA process is that the Registrar is entitled to review a liable parent’s financial circumstances to see if the child support assessment properly reflects that parent’s income, property and other financial resources. Self apparently, the Registrar did not accept that $14,391.00 properly reflected
Mr Tasman’s circumstances, given his utilisation of salary sacrifice. The SSAT was not bound to accept such an income either. This ground of appeal is also dismissed.
Ground Four – the SSAT, in a departure from the applicable assessments of child support, fixed Mr Tasman’s child support income by reference to what it found to be a financial resource, which he could access as represented by his income protection payments. I can find no legal or jurisdictional error in the manner in which the SSAT reached its determination in respect of these matters. Accordingly, this ground of appeal must fail.
Ground Five –
the SSAT was aware that Mr Tasman was in receipt of sickness benefits at some relevant times. As the Tribunal itself pointed out, the nub of the matter was whether Mr Tasman had access to a financial resource, in the form of his eligibility for income protection payments. The Tribunal did not consider it was relevant that
Mr Tasman may have to declare this entitlement to Centrelink, if he chose to access it. I do not think this ground of appeal is made out.
Ground Six – the SSAT did consider the issue of service, particularly the letter of January 2008. It concluded that Mr Tasman had been adequately served. This was a finding which was open to it, particularly bearing in mind the applicable regulatory framework. This ground of appeal is not made out.
Ground Seven – I consider that Mr Tasman was provided with adequate notice, in July of 2008, as to the grounds on which the Registrar was considering changing the applicable assessment of child support. It was considered that Mr Tasman had an income of around $48,000.00 per annum for child support purposes.
The SSAT stands in the shoes of the Registrar and has the same power of enquiry. Mr Tasman was advised of the various matters as to why the SSAT believed the applicable assessments may not be properly reflective of his financial circumstances, namely the issue of salary sacrifice for the first period in question and the issue of income protection payments for the second period in question. He was given an opportunity to comment in respect of both issues. The SSAT rejected his contentions about both issues. I can find no error of law or denial of natural justice in how these conclusions were reached by the Tribunal. I reject this ground of appeal.
Ground Eight – in my view, it is not a relevant legislative consideration prior to the Registrar undertaking a RICA process that there are no arrears of child support outstanding. The essence of the process is that the assessment in question is not properly reflective of the liable parent’s financial circumstances, not that a child support debt has arisen. Accordingly, this ground of appeal must fail.
Ground Nine – the fact that Mr Tasman was assessed to have a particular taxable income for the year ending 2008 was not a terminating event as defined by the provisions of the Assessment Act.[26] As previously indicated, the Registrar is entitled to examine whether a liable parents declared income is properly reflective of his or her actual financial circumstances. Accordingly, this ground of appeal is not made out.
[26] See Child Support (Assessment) Act at section 12
Ground Ten – I am satisfied that Mr Tasman was advised by the Registrar that he could attend in person, if he wished, to take part in the RICA process. As such, I do not think the failure of Mr Tasman to attend represents a breach of the rules of natural justice. In any event, Mr Tasman was given the opportunity to appear before the SSAT to provide both evidence and submissions to it, an option which he took up. Accordingly, this ground of appeal must fail.
Ground Eleven – the central task for the SSAT was to conduct a merits review of the Registrar initiated change of assessment process pursuant to the provisions of section 98L. In my view, it properly undertook such a merits review, which included the taking of evidence. In so doing, the Tribunal was aware that Mr Tasman questioned the relevance of some documents, which the Registrar had forwarded to it, in discharge of its obligations under section 95(3) of the Collection Act.
In respect of this issue, the SSAT determined as follows:
“… the Tribunal accepts that many documents contained in the papers are not centrally relevant to the determination of the matter before the Tribunal, other than by virtue of the fact that they are part of the Child Support Agency’s records about
Mr Tasman’s child support. It is evident that the Child Support Agency take an expansive view of its obligation under section 95(3) of the Registration and Collection Act to provide a copy of every document relevant to the review of the decision.”
The Tribunal accepted that some of the documents, which had been forwarded to it, were not strictly relevant to the section 98L matter. However, its receipt of the documents alone, is not sufficient to demonstrate bias or some other failure of procedural fairness. In my view, this ground of appeal also fails.
Ground Twelve – this ground appears to relate to the fact that, following the taking of evidence before the SSAT, Mr Tasman made a freedom of information request to the Registrar of the Child Support Agency. He has not deposed, as far as I can see, what is the relevance of the documents sought to the subject matter of the hearing before the SSAT. In these circumstances, I am unable to discern any legal error. This ground of appeal therefore fails.
Ground Thirteen – I do not accept that the SSAT failed to take into account the commitments of each parent, which were necessarily for self support. In particular, the SSAT closely considered Mr Tasman’s commitments, including credit card debts and HECS [see reasons of 12 June 2009 at paragraphs 87-94].
Ground Fourteen – Mr Tasman has failed to demonstrate why the fact that Ms Tisdall has allegedly alienated the children, who are the subject of the relevant assessments, from him is a relevant consideration for either the Registrar or the SSAT pursuant to section 98L of the Assessment Act. Accordingly, this ground of appeal fails.
Ground Fifteen
– the SSAT did not find that Mr Tasman’s “income” for the period from 1 July 2008 to 1 October 2009 was $32,291.00 per annum. Rather, a higher child support income was attributed to
Mr Tasman by reason of the finding of the SSAT that Mr Tasman had a financial resource available to him in the form of his entitlement to claim income protection payments from [S] Super. Accordingly, I do not consider that this ground of appeal is established.
Ground Sixteen
– I do not fully understand this ground of appeal.
Mr Tasman is correct that neither the Registrar nor the SSAT can compel him to claim income protection payments. That is not the point. It is open to him to claim such payments and, as such, the SSAT concluded that these potential payments were a financial resource potentially available to Mr Tasman, whether he chose to access them or not. In my view, I do not consider that this ground of appeal is established.
Ground Seventeen – I do not understand this ground of appeal.
Ground Eighteen – Neither the Registrar of the Child Support Agency nor the SSAT are required to investigate the views or wishes of any children concerned by a relevant assessment of child support. In addition, I do not think the exercise outlined in section 98L of the Assessment Act requires there to be any investigation of the intentions of liable parents in respect of how financial support for their children is to be provided.
Ground Nineteen – The Registrar was not obliged to conduct a telephone interview with Mr Tasman on 16 January 2008. In any event, I do not believe that this omission, if it be an omission, vitiates the procedural correctness of the subsequent hearing before the SSAT, in which Mr Tasman participated.
Ground Twenty – pursuant to section 17 of the Assessment Act, a parent of a child who is subject to a child support assessment may seek assistance from the counselling facilities of the Family Court. However, the provision of such counselling is not a pre-condition to the Registrar undertaking a change of assessment procedure in respect of any relevant child support assessment. Accordingly, this ground of appeal is not made out.
Ground Twenty-One – the SSAT considered Mr Tasman’s commitments relevant to this own financial support in reaching its determination. I can see no legal error in this aspect of its determination. Accordingly, it is my view that this ground of appeal is not made out.
Ground Twenty-Two – the SSAT considered the issue of Mr Tasman and Ms Tisdall potentially entering into a limited child support agreement together. This was apparently an outcome which was considered by the parties and an officer of the Agency itself, but one which did not reach fruition. In my view, the SSAT rightly concluded that this was not a relevant consideration in the exercise of its jurisdiction. I agree with this determination and accordingly do not believe that there is any jurisdictional error arising from it. Accordingly, this ground of appeal is not made out.
Conclusions
In addition to his grounds of appeal, Mr Tasman has set out thirteen orders, which he seeks the court to make. Given that I have not found any of his grounds of appeal have been established, I have no authority to grant orders 1, 2, 3, 4, 5, 6, 7, 8 and 9 of his orders sought.
Mr Tasman also seeks an order that the court direct the Legal Services Commission of South Australia to make legal assistance available to him. Mr Tasman is unable to point to any legislative provision which grants the court this authority. In all these circumstances, I declined to make such an order.
Mr Tasman also seeks an order that I direct the Registrar of the Child Support Agency to provide to him a transcript of an alleged telephone conversation which occurred between an officer of the Agency and him on 21 August 2008. Again, Mr Tasman is unable to point to any specific legislative provision which would grant the court this authority. Accordingly, I decline to make such an order.
I concede that it is open to the court to order the SSAT to provide transcript of proceedings before it in exceptional cases. I do not believe that the present matter is an exceptional one. As I have indicated, the determination of the SSAT is a thorough and comprehensive one.
More importantly, Mr Tasman’s complaints of procedural unfairness are diffuse. He is unable to point to some specific aspect of the taking of evidence before the SSAT, which explicitly indicates some form of bias or other failure to properly apply the rules of natural justice. As a consequence, it is my view that the responsibility to obtain a transcript of the proceedings, if reliance is sought to be placed upon it, remains upon Mr Tasman.
Mr Tasman was unable to point to any specific legislative requirement which would empower the Registrar of the Child Support Agency to pay any moneys collected by it into a bank account standing in the name of any child or children affected by a particular child support assessment so that child or children could theoretically manage their own financial affairs. In the absence of such a power, I am unable to make the order which Mr Tasman seeks in this regard.
Mr Tasman’s complaints regarding the exercise of jurisdiction by the SSAT are both inchoate and multifarious. He is undoubtedly aggrieved by the decision in this case. However, it is not my role to conduct a fresh hearing in the matter and examine all the relevant evidence again.
When the case is boiled down into its simple constituent elements, it is not a complex case. The SSAT stands in the shoes of the Registrar and is required to conduct the RICA process afresh, pursuant to the provisions of section 98L of the Assessment Act.
The SSAT was required to conduct an inquiry into Mr Tasman’s financial circumstances for the period from 10 January 2008 to 1 October 2009 and see if those circumstances warranted a departure from or change to the applicable administrative assessment of child support. In my view it did so fairly and Mr Tasman was given ample opportunity to call his own evidence and comment on any of the evidence gathered by the SSAT itself.
Mr Tasman’s financial circumstances are not exceptionally complicated or idiosyncratic. For a significant portion of the period in question, he was a conventional salary earner, who chose to divert his salary into benefits utilised by himself, namely a motor vehicle and superannuation. The SSAT included that his declared income was not fairly reflective of his financial circumstances.
As such it determined it was just and appropriate to change the relevant assessment. It also concluded that he could access income protection payments for a further portion of the period in question, although he chose not to do so. As such, the Tribunal considered these potential payments were a financial resource available to Mr Tasman, which could form the basis of an assessment of child support, in circumstances where it was just and appropriate to allow those payments to be so utilised.
Having examined the relevant material to see if there is any error of law apparent on the face of the record, of the SSAT. I am unable to find any error of law. Accordingly, the application filed on 17 July 2009 must be dismissed.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and seventy-five (175) paragraphs are a true copy of the reasons for judgment of Brown FM
Date: 19 May 2010
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