Travers and Gibbon (SSAT Appeal)
[2011] FMCAfam 543
•20 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TRAVERS & GIBBON (SSAT APPEAL) | [2011] FMCAfam 543 |
| CHILD SUPPORT – Appeal from decision of SSAT – whether the SSAT erred in the consideration of the financial circumstances of the applicant – whether there was failure of natural justice. |
| Child Support (Assessment) Act 1989 Child Support (Registration and Collection) Act 1988 |
| LDME & JMA (SSAT Appeal) [2007] FMCAfam 712 Tasman & Tisdall [2008] FMCAfam 126 |
| Applicant: | MR TRAVERS |
| Respondent: | MS GIBBON |
| File Number: | BRC 9623 of 2010 |
| Judgment of: | Slack FM |
| Hearing date: | 31 May 2011 |
| Date of Last Submission: | 31 May 2011 |
| Delivered at: | Brisbane |
| Delivered on: | 20 July 2011 |
REPRESENTATION
The Applicant appearing on his own behalf.
The Respondent appearing on her own behalf.
ORDERS
That the Amended Notice of Appeal (Child Support) from the decision of the Social Security Appeals Tribunal filed on 11 March 2011 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Travers & Gibbon is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 9623 of 2010
| MR TRAVERS |
Applicant
And
| MS GIBBON |
Respondent
REASONS FOR JUDGMENT
This is an appeal from the decision of the Social Security Appeals Tribunal (hereafter “the SSAT”) dated 9 September 2010.
There are seven grounds of appeal in the Amended Notice of Appeal (Child Support) filed on 11 March 2011.
Child support assessments and the decision of the SSAT
The SSAT decided to set aside the decision under review and substitute a decision that:
for the period 1 January 2009 to 28 February 2011 the annual rate of child support payable by Mr Travers is set at $16,600.
In reaching that decision the SSAT sat in review of a decision of an objections officer dated 29 March 2010.
The following facts cited in the reasons of the SSAT do not appear in dispute:
1. Mr Travers and Ms Gibbon are the parents of [X], born in 2007. [X] is recorded as being in Ms Gibbon’s greater than primary care.
2. The administrative assessment of child support for the period from 22 November 2008 to 21 February 2010 was based on an adjustable taxable income of $35,233 for Mr Travers (his 2007/2008 taxable income), and an adjusted taxable of $18,357 for Ms Gibbon (her 2007/2008 taxable income). The assessment was for the payment of $2,887 annually by Mr Travers.
3. By letter dated 20 February 2009, the Child Support Agency (CSA) initiated a departure from the administrative assessment under Part 6A of the Child Support (Assessment) Act 1989 (“the Act”) on the basis that Mr Travers’s income, property and financial resources were not properly reflected in the assessment (Reason 8).
4. Mr Travers did not participate in the hearing of the matter and on 18 March 2009 a senior case officer decided for the period 1 January 2009 to 28 February 2011 Mr Travers’ adjustable taxable income should be set at $150,000 and for the period 1 January 2009 to 30 September 2009 Ms Gibbon’s adjusted taxable income should be set at $29,248.
5. On 8 December 2009 Mr Travers objected to that decision and requested an extension of time in which to do so.
6. An extension of time was granted and on 29 March 2010 an objections officer disallowed the objection.
7. On 22 April 2010 Mr Travers applied to the Social Security Appeals Tribunal (SSAT) to have the objection officer’s decision reviewed.
Principles
It is important for the purposes of this appeal to restate the principles enunciated by Halligan FM in LDME & JMA (SSAT Appeal) [2007] FMCAfam 712 at para.54:
The Court “must” hear and determine an appeal from the SSAT, and “may” make such order as it thinks appropriate by reason of its decision (s.110F(1), Registration Act). The orders a Court may make on a s.110B appeal include an order affirming or setting aside the decision of the SSAT, or an order remitting the case to be heard and decided again by the SSAT, either with or without the hearing of further evidence, in accordance with the directions of the Court [s.110F(2)].
Three points may be made about the Court’s powers in a s.110B appeal.
First, the use of the word “may” clearly signifies that the power is discretionary. The fact an error of law by the SSAT is found does not inevitably lead to the decision being set aside. For example, if it is clear there would be no purpose served by having the case heard again, the Court may, in the exercise of its discretion, decline to remit the matter to be heard and determined again, and affirm the decision under appeal (see Clements v Independent Indigenous Advisory Committee, above, at [41]).
Second, the power to make such order as the Court thinks fit is qualified by the words “by reason of its decision”. The “decision” in this context is the decision on the hearing and determination of the appeal (s.110F(1), the appeal being “on a question of law” (s.110B). Thus, the orders made must flow from a finding in favour of the Applicant on an identified question or questions of law.
Third, the particular power under s.110F(2) to make the orders specified in that subsection does not limit the general power under s.110F(1) to make such order as the Court thinks appropriate by reason of its decision on the appeal.
It is for the applicant to satisfy the Court that the SSAT has erred in law and in that regard Brown FM in Tasman & Tisdall [2008] FMCAfam126 (at para.44) said:
An Administrative Tribunal exceeds its powers and thus commits jurisdictional error, which is correctable on appeal in respect to the question of law, if it:
(i) fails to construe properly the legislative provisions applicable;
(ii) identifies the wrong issues or asks itself the wrong questions;
(iii) ignores relevant material or relies on irrelevant material;
(iv) fails to accord procedural fairness to the party before it;
(v) makes an erroneous finding of such a magnitude that it goes to the very jurisdiction which it purports to exercise rendering its decision perverse or unreasonable or otherwise offending logic.
The grounds of appeal and the applicant’s argument
Grounds 1, 3, 4, 5 and 7 of the appeal seem to be related and assert that the SSAT was in error in the manner in which the SSAT dealt with the income, property and financial resources of the applicant.
Ground 2 of the appeal, in summary, is an argument that for the period from 1 January 2009 to 19 February 2009 the change of assessment was contrary to the principles of natural justice and that the applicant had no notice of the application; that he was denied natural justice in respect of that period and; that the SSAT failed to provide adequate reasons for the retrospective operation of its decision prior to
20 February 2009.
Ground 6 of the appeal alleges that the SSAT failed to take into account the applicant’s necessary living expenses and in particular the expenses associated with the applicant’s property settlement with his former wife including:
a. the costs of sale of real estate;
b. the costs of changing his business operation from a company jointly owned with his former wife (Mitara Empresa Pty Ltd to Positive Light Pty Ltd);
c. the legal costs and transaction costs.
Grounds 1, 3, 4, 5 and 7 of the Appeal – Income, property and financial resources of the applicant
At the outset of the appeal the applicant conceded that it would have been appropriate for the SSAT to reach a conclusion to treat his income for child support purposes for the relevant period to be approximately $90,000 per annum.
It would appear therefore on his own case that the applicant acknowledges that it was correct for the SSAT to find that a ground for departure from administrative assessment existed.
It is important then to consider the task faced by the SSAT after having concluded that a ground for departure existed. The SSAT then needed to consider whether it was just and equitable and otherwise proper to depart from the assessment and if so, what would be the appropriate determination of child support.
Again the applicant largely concedes that the SSAT were entitled to reach a conclusion that it was appropriate to depart from the administrative assessment. He contended, at the commencement of his submissions, that the appropriate level of child support payable by him for the relevant period was:
a)2008/2009 - $11,042;
b)2009/2010 - $11,228;
c)2010/2011 - $9,443.
The applicant submitted that he had done that calculation based on what he considered to be an appropriate level of child support income amount calculated for himself for the relevant period.
It is important to note that the time of the hearing the SSAT did not have any recent taxation returns filed by the applicant.
The applicant does not challenge the finding made by the SSAT about the financial circumstances of the respondent during the relevant period. Relevantly the SSAT found (para 47 of the Reasons):
It is clear that Ms Gibbon has a very limited income and little excess once her reasonable necessary expenses have been met. She therefore requires a significant contribution from Mr Travers to support [X].
The applicant also does not seem to challenge the factual findings made in para 46 of the Reasons:
Ms Gibbon lists household expenses as totalling $710 per week including $304 per week for [X]. Having examined the expenses, the Tribunal finds they are largely reasonable and necessary and, in relation to [X], reflect a relatively conservative estimate of her expenses especially once rent/mortgage of $141 per week is removed.
During submissions the applicant indicated that he did not receive the respondent’s statement of financial affairs prior to the hearing but it is not a ground of appeal that he was denied natural justice in relation to his not having received that document or the findings made by the SSAT in relation to the needs of the child and the financial circumstances of the respondent.
Having regard to those factual findings, it was then the essential task of the SSAT, if it was satisfied that it was just and equitable to depart from the administrative assessment (which it was and such finding is not in dispute), to then determine the extent to which the applicant could contribute to the needs of the child.
The applicant’s primary submission is that the SSAT committed a number of errors in both approach and to its conclusions and findings that he had a gross income of $161,539 per year.
I agree that some of the approach taken by the SSAT in examining his financial affairs was robust and somewhat arbitrary in nature. It is important, though, that it be seen, that the analysis was done in the context of:
a)an accepted fact that the applicant had a greater capacity to contribute child support than that was assessed;
b)that the applicant did not provide reliable information about his financial affairs which was somewhat complex having regard to the intertwining of his business and company affairs and his personal affairs.
Critically the SSAT considered (paras 37 to 40 of the Reasons) his claimed expenses of $3,102 per week. I have not, for the purposes of this appeal, had the benefit of any documents that were before the SSAT including the document apparently prepared by the applicant setting out his expenses, but in this appeal, the applicant does not seem to challenge that there was some incorrect interpretation of his expenses. The SSAT gave priority to the obligation to meet his child support over some of the expenses claimed by the applicant and again there is no real challenge to those findings.
Whilst one of the grounds of appeal goes to the manner in which the SSAT dealt with his expenses, nevertheless, it seems to me that the SSAT were entitled to come to the conclusion that it did, namely that:
The applicant has significant excess income once his reasonable and necessary expenses have been met.
Whilst I can accept that the SSAT adopted a somewhat arbitrary and robust approach to its analysis of the applicant’s financial circumstances, I consider that there were sufficient facts and evidence upon which they could reach a reliable conclusion that the applicant had the capacity to contribute the child support in the amount that was ultimately determined.
At the conclusion of the matter the SSAT were faced with determining an appropriate level of child support for the applicant where they had made findings that the respondent had limited capacity to provide for the support of the child.
The SSAT also were in the position of not having a clear picture of the earnings of the applicant and:
a)an admission that his earnings were greater than his taxation return;
b)claimed expenses of $3102 per week;
c)a confused picture of his financial circumstances.
Whilst the approach was somewhat robust I am not satisfied that the SSAT either erred in the approach to the matter or that they were not entitled to reach the conclusions that it did in the matter.
These grounds of appeal fail.
Ground 2 of the Appeal – Failure to provide procedural fairness
The argument of this ground is that the applicant was not given any opportunity to make submissions as to why the child support assessment should commence in January 2009.
However, it is important to note that both the case assessment officer and the objections officer made a determination that the amended assessment of child support should commence in January 2009.
The applicant was certainly on notice that the change in child support assessment would commence from January because that was the decision that he was seeking to have reviewed.
I am not satisfied that he did not have a proper opportunity to make submissions as to the retrospective nature of the determination.
Ground 6 of the Appeal
It is difficult to understand the basis upon this ground. The applicant did not direct any specific submissions during the course of the oral appeal hearing and I was not taken to particular parts of the judgment or the transcript that dealt with this particular issue. In any event this ground of appeal seems somewhat akin to the earlier ground and I adopt what I said in relation to this ground.
Summary and conclusions
For the reasons given, I am not satisfied that the decision of the SSAT is attendant with sufficient error to warrant the decision being set aside and accordingly I dismiss the appeal.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Slack FM
Date: 20 July 2011
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