Trejo and Walker and Anor (SSAT Appeal)
[2010] FMCAfam 1393
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TREJO & WALKER & ANOR (SSAT APPEAL) | [2010] FMCAfam 1393 |
| CHILD SUPPORT – Appeal from SSAT – leave to appeal 7 months out of time – history of the proceedings – conduct of the parties – nature of the litigation – consequences for the parties of the refusal of the application for extension of time. |
| Child Support (Assessment) Act 1989, s.117 Child Support (Registration and Collection) Act 1988, ss.110B, 110C Federal Magistrates Court Rules 2001, rr.3.05, 25A.06 |
| Agrippa & Horton [2010] FMCAfam 1144 Gallo v Dawson (1990) 64 ALJR 458 Humphries & Berry [2008] FMCAfam 409 Kioa v West (1985) 159 CLR 550 PJ & Child Support Registrar (SSAT Appeal) [2007] FMCAfam 829 |
| Applicant: | MR TREJO |
| First Respondent: | MS WALKER |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | SYC 6014 of 2009 |
| Judgment of: | Sexton FM |
| Hearing date: | 27 August 2010 |
| Date of Last Submission: | 27 August 2010 |
| Delivered at: | Sydney |
| Delivered on: | 14 December 2010 |
REPRESENTATION
| Solicitors for the Applicant: | South West Sydney Legal Centre |
| Solicitors for the First Respondent: | No appearance |
| Solicitors for the Second Respondent: | Australian Government Solicitors |
ORDERS
The Application for leave to appeal out of time is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Trejo & Walker & Anor (SSAT Appeal) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 6014 of 2009
| MR TREJO |
Applicant
And
| MS WALKER |
First Respondent
| CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant Father, Mr Trejo, applies for leave to appeal out of time from a decision of the Social Security Appeals Tribunal dated 13 May 2009. If successful on the leave issue, he appeals that decision, requesting that the matter be remitted to the Tribunal for re-hearing.
The Applicant Father and the Respondent Mother, Ms Walker, are the parents of [X], born [in] 1999. They separated when [X] was aged one. [X] has always lived primarily with the Mother and the Applicant is liable for child support. [X] spends three nights a fortnight with the Applicant and [X] is his only dependent.
The Applicant’s usual occupation is a self-employed [omitted]. He has also derived income from a block of three units the parties purchased in 1999 while still living together[1]. According to the Respondent Mother, the Father has paid only $1200 in total child support between 2001, when the case was first registered with the Child Support Agency, and the Tribunal hearing in May 2009. The Applicant claims to have paid $3,000 during that same period.
[1] At Folio P25 of Appeal papers
On the application for leave to extend time for filing his Notice of Appeal, the Applicant contends[2] that he was unable to file the Notice within the statutory time frame because he was anxious and depressed, he was attending doctors in relation to a left shoulder injury, he was consulting solicitors and appearing at Court because of the Mother’s complaints of domestic violence, and in November 2009 he was consulting solicitors about initiating proceedings for parenting orders in relation to [X].
[2] Affidavit of Applicant sworn 6 April 2010
On the substantive appeal, the Applicant contends firstly, that the Tribunal did not give proper consideration to the relevant factors when considering whether a departure determination would be “just and equitable” and secondly, that the Tribunal did not afford him procedural fairness in reaching its decision.
The Applicant claims, in these proceedings, to have stopped work in January 2008 as a result of a left shoulder injury and because he was suffering from anxiety and depression. At the Tribunal hearing in May 2009, he says he stopped work in January 2008 because of a left shoulder injury.
The Applicant was represented by Ms Morey, solicitor of the South West Community Legal Centre. The Respondent Mother did not appear at the hearing but, because until the hearing she had been legally represented, the Court contacted her on the morning of the hearing, by phone. The Mother told the Court that she understood from her Case Manager at the Child Support Agency that she was not required at the hearing. While she sought that the appeal be dismissed, the Mother told the Court that she did not object to the matter proceeding in her absence. She said she relied on evidence she had given to the Tribunal and evidence she had given previously to the Child Support Agency. The Second Respondent, the Child Support Registrar, was represented by Ms Fusitu’a from Australian Government Solicitors.
Time limit on appeal
The Tribunal despatched its Decision to the Father on 26 May 2009. The Father says he received the decision on 29 May 2009. He filed his Notice of Appeal on 22 January 2010.
Section 110C(1) of the Child Support (Registration and Collection) Act 1988 provides that any appeal to a Court from a decision of the SSAT must be commenced in a court within the time prescribed by the applicable Rules of Court or such further time as allowed by the applicable Rules.
Rule 25A.06(2) of the Federal Magistrates Court Rules 2001 provides that a Notice of Appeal from a SSAT decision must be filed within “28 days of receiving a written statement of reasons for the decision under subsection 103X(3) or (5) of the Registration Act”. Rule 3.05 provides that a Court may extend or shorten the time fixed by Rule 25A.06, even if the time fixed has passed.
It is therefore a discretionary matter for the Court as to whether or not to grant leave to appeal out of time. In Bagley v Bagley (SSAT appeal)[3], her Honour Federal Magistrate Terry referred to the High Court decision of Gallo v Dawson (1990) 64 ALJR 458 on the legal principles to be applied on such leave applications. In that case, his Honour Justice McHugh said:
The discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties…
This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time.
[3] [2010] FMCAfam 215
History of the proceedings
For the period 1 January 2007 until 31 March 2008, the Child Support Agency assessed the Applicant as having a child support liability of $3,103 per annum based on his provisional income of $36,504 and the Mother’s taxable income of $20,624.
On 17 October 2008, the Respondent Mother applied for a Change of Assessment. At conference with the Senior Case Officer on
24 November 2008, the Mother based her Change of Assessment Application on firstly, [X]’s educational expenses and secondly, the Father’s income, earning capacity and financial resources. The Father did not provide any responding material to the Mother’s application and did not participate in the conference. On 12 December 2008, a Senior Case Officer did not accept there was a basis for departure on the basis of [X]’s educational expenses, but found that the Father had the capacity to pay more than his assessed liability. The Senior Case Officer said that the Father’s income tax return showed rental income of over $33,000, and, although he had costs associated with the properties, he would also have equity in the properties. The Senior Case Officer therefore set his income at approximately average earnings of $55,000 per annum for the period 17 October 2008 to 31 October 2010[4].
[4] At page 25 of Appeal papers
On 24 December 2008, the Father lodged an objection to the decision. The Father advised that he would be contacting his solicitor to prepare his response to the Senior Case Officer’s decision[5]. The Objections Officer contacted the Father on 19 January 2009 and confirmed with the Father that he would be sending in his grounds of objection as soon as possible. A letter was sent to the Father on the same day confirming that conversation. On 17 February 2009, the Objections Officer telephoned the Father again because no information had been received. The Father told the Objections Officer he had had difficulty making an appointment with his solicitor but had lodged two further taxation returns. At no time did the Father provide a response or any other evidence to the Objections Officer. The Objections Officer noted that the Father’s 2008 taxation return disclosed a taxable income of $15,440. On 17 February 2009[6], the Father told the Objections Officer by phone that he spent $18,200 per annum on food and rent alone. The Objections Officer concluded that the Father had income from his business, rental income from his property, and equity in his property that were not reflected in his taxable income of $15,440. His objection was therefore disallowed. The Father told the Objections Officer an income of $55,000 a year was excessive:
…He said he does not earn that much and he cannot afford to pay the resulting assessment of $116 per week. He also said he needed time off work recently due to an injured shoulder. Mr Trejo said he has postponed surgery because he can’t afford to pay for the operation at the current time.[7]
The Objections Officer said in his reasons for decision that the Father had failed to provide financial or medical information to support his verbal claim. A copy of the decision, and reasons for the decision, were sent to the Father by letter of 18 February 2009[8].
[5] At page 26 of Appeal papers
[6] At page 42 of Appeal papers
[7] At page 27 of Appeal papers
[8] At page 21 of the Appeal papers
The Mother also objected to the Agency’s decision on the basis of its refusal to backdate the assessment, and her objection was also disallowed by the Objections Officer. The Objections Officer declined her claim because he was unsure as to whether the Father had the capacity to pay the significant arrears that would be created[9].
[9] At page 27 of Appeal papers
On 2 March 2009, the Father lodged an application for review with the Social Security Appeals Tribunal, and on 6 March 2009, the Mother also applied for a review of the decision of the Objections Officer. The Father sought to reduce his liability. The Mother agreed with the changed assessment, but sought to have it backdated by 18 months.
On 22 April 2009, a pre-hearing conference was held before the Tribunal (differently constituted from the Tribunal hearing the review) and each party was directed to complete and return a Statement of Financial Circumstances by 29 April 2009. The Respondent Mother complied with the Tribunal’s directions. The Applicant Father did not provide a financial statement or any other evidence in accordance with the Tribunal’s pre-hearing directions. Although he provided some financial and medical material to the Tribunal on 12 May 2009, the day before the hearing, the information was incomplete.
Each party was self-represented at the Tribunal hearing on 13 May 2009. The Applicant Father’s appeal to the Tribunal was unsuccessful. The Mother’s appeal was successful. The Tribunal decided to vary the decision of the Agency and substitute a new decision that:
a)For the period 17 April 2007 to 30 June 2008, Mr Trejo’s child support income amount be increased to $55,000.
b)For the period 1 July 2008 to 31 October 2010, Mr Trejo’s adjusted taxable income amount be increased to $55,000.
On 7 October 2009, the Child Support Registrar initiated Enforcement proceedings in this Court against the Father in relation to his child support arrears.
On 29 December 2009, the Father commenced fortnightly child support payments of approximately $41, deducted from his Newstart Allowance[10].
[10] Exhibit 1
On 6 April 2010, with the consent of the Father, the Court made a declaration that the Father owed $16,266.11 in child support arrears, including penalties, and made an order for $2,500 in costs. The Father was given 120 days to pay the full amount owed, including costs. The Court further ordered that if the Father failed to pay his debt by the due date, the Child Support Registrar was at liberty to take steps to sell his real estate or other personal property to satisfy the debt.
Conduct of the parties
The Applicant Father makes no complaint about the conduct of the Respondent Mother relevant to the question of leave.
The Applicant deposes to being unable to file his Notice of Appeal by the end of June 2009 (the 28 day statutory time frame) for these reasons[11]:
[11] Affidavit of Applicant sworn 6 April 2010
a)He has had a history of severe depression, anxiety and stress since 2001. He says that following the Tribunal hearing, his mental health markedly deteriorated[12]. As a result, he required treatment from a psychologist and from an organisation known as ‘[omitted]’ between May and August 2009. His condition prevented him from managing ‘complicated paperwork’. [13]
b)He suffers an injury to his left shoulder. In September 2009, and November 2009, he obtained referrals to an orthopaedic specialist for advice and treatment for his shoulder. However, he was unable to afford attendance on the specialist.
c)He was involved in other litigation:
i)At the end of May 2009, an Apprehended Violence Order against him was quashed by [omitted] Local Court.
ii)In July 2009 he was charged with assault on the Respondent Mother which required Court appearances between July and October 2009.
iii)The Mother obtained a final Apprehended Violence Order against him in October 2009 for two years. He consulted a solicitor in relation to an appeal.
iv)In November 2009, he initiated proceedings for parenting orders in relation to [X], and devoted time to the preparation of documents with his solicitor because of concerns he held in relation to [X]’s welfare in the Mother’s care.
v)In November 2009, he received advice that the Child Support Agency had initiated Enforcement Proceedings against him. It was at Court for this matter on 9 December 2009, that he was directed to file his application for leave to appeal out of time and Notice of Appeal by 22 January 2010.
[12] At paragraph 10 of Affidavit of Applicant sworn 6 April 2010
[13] At paragraph 27 of Affidavit of Applicant sworn 6 April 2010
I am not persuaded that the Applicant has given an adequate explanation for the delay in filing his Notice of Appeal for these reasons:
a)The Applicant relies on an unsigned copy of a report from a psychologist, Mr K in relation to the state of his mental health in May 2009. I give limited weight to an unsigned report.
b)
The Applicant told the Objections Officer in January 2009 and again in February 2009 that he intended to contact his solicitor to prepare a response to the Senior Case Officer’s decision.
I conclude that the Applicant understood his right to obtain legal advice at that time.
c)Mr K described the Applicant’s entry scores as “very low” and his “acute feeling of overwhelm” in May 2009. I find this assessment difficult to reconcile with the Applicant’s involvement in parenting litigation in early 2009 resulting in the Federal Magistrates Court at Parramatta making parenting orders on a final basis on 9 March 2009[14]. He was able to instruct solicitors during those proceedings until only a few weeks before his presentation to Mr K.
d)The Applicant retained solicitors and was capable of attending court on a number of occasions between the end of May and December 2009, in relation to both criminal and civil proceedings. I am not satisfied the Applicant lacked the mental capacity to prepare a Notice of Appeal from the Tribunal’s decision by the end of June, when time for filing the Appeal expired.
e)According to Mr K, the Applicant showed significant signs of improvement by August 2009, yet did not lodge his appeal until January 2010.
f)The Applicant makes his Application for leave to appeal out of time only after the Agency commenced enforcement proceedings against him.
Nature of the litigation - does the Applicant have an arguable case with respect to his grounds of appeal?
[14] At Folio A32 of Appeal papers
This question requires an assessment of the merits of the substantive appeal. In reaching my decision, I have had the benefit of hearing oral submissions on the substantive appeal from both legal representatives and of considering Ms Morey’s written submissions on the substantive appeal, at the same time as hearing the application for leave.
Section 110B of the Child Support (Registration and Collection Act) 1988 provides that a party to a proceeding before the SSAT may appeal to a court having jurisdiction, on a question of law, from any decision of the Tribunal in that proceeding. It is not a review on the merits.
The Applicant Father relies on two grounds of appeal set out in his Amended Notice of Appeal filed on 8 April 2010:
a)The Tribunal erred in failing to properly determine what was a just and equitable outcome, in that it failed to give proper regard to relevant considerations and information.
b)The Applicant was denied procedural fairness during the Tribunal proceedings.
In relation to both grounds of appeal, Ms Morey argues that the Father was unaware that he needed to provide documents to the Tribunal, including but not limited to, additional taxation returns, evidence of his debts, evidence about his mental health, and its impact on his capacity for employment. In relation to Ground (a), the Applicant argues that the Tribunal failed to give proper regard to “relevant considerations and information” which were not before the Tribunal. Ms Morey does not suggest the Tribunal failed to give proper regard to the material which was available for its consideration. In relation to Ground (b), Ms Morey argues that the Applicant was not afforded procedural fairness because the Tribunal did not consider information which should have been in evidence, but was not. In essence, it is the Applicant’s case that had the Tribunal been provided with additional evidence by the Applicant, the Tribunal would have come to a different result. Ms Morey submits that the matter should therefore be remitted to the Tribunal for re-hearing, when all the relevant evidence available to the Applicant will be provided.
Ms Morey acknowledges that the Applicant provided the Tribunal with only limited evidence. However, she contends that the Tribunal’s role is to make the necessary inquiries, and the Tribunal failed in that role. Ms Morey argues that the Applicant made it clear to the Tribunal that he was having problems with the paperwork, seeking the assistance of the Tribunal case manager[15]. As a result of the deficiencies in the Applicant’s evidence, which, on the Applicant’s case, came about as a result of the Applicant’s health and personal difficulties, Ms Morey claims the Tribunal’s decision is wrong in fact and wrong in law. With the exception of the reasons given by the Tribunal for its decision to backdate the assessment, Ms Morey does not suggest the Tribunal was in error by failing to consider the evidence which was before it.
[15] At paragraph 17 of Tribunal Reasons
Ms Fusitu’a argues that the Applicant was told at the pre-hearing conference that he was required to lodge a statement of financial circumstances and other evidence relied on[16] by 29 April 2009. The Applicant therefore knew what the Tribunal required in advance of the hearing to determine the case. The Applicant did not advise the Tribunal he was unable to comply with those directions. Ms Fusitu’a argues that because the Applicant did provide some financial material and some medical material, albeit not in compliance with the directions[17], the Court should be satisfied that the Applicant was aware of what was required of him. Ms Fusitu’a submits that the Tribunal carefully considered the financial and medical evidence available, including a consideration of the Applicant’s intellectual state.
Ms Fusitu’a submits that it is not reasonable to have expected the Tribunal to do more. In relation to its decision to backdate the assessment, she submits that the Tribunal clearly considered hardship and whether there was any unusual circumstance which would prevent the Tribunal from backdating the assessment[18].
[16] At paragraph 12 of Tribunal Reasons
[17] At paragraph 16 of Tribunal Reasons
[18] At paragraphs 93 and 99 of Tribunal Reasons
The question for this Court is whether the Tribunal should have given the Applicant an opportunity to provide further evidence, and in not doing so, whether the Tribunal failed in its obligation to afford the Applicant procedural fairness.
I have found it necessary to carefully examine the Applicant’s evidence at the hearing, and the Tribunal’s approach to the application when considering these questions.
The Tribunal outlined the evidence of the Applicant Father at Paragraphs [17] – [29] of its Reasons:
a)The Applicant did not complete the Statement of Financial Circumstances properly because the Case Manager at the Tribunal had not been prepared to help him complete it. The Applicant asked her twice. The Applicant’s Statement disclosed an average income of $250 a week, net assets of approximately $50,000 and expenses totalling $969 a week (or $50,388 a year) which were not itemised. His 2008 tax return disclosed a business income of $8,140 and a net rental income loss of $6,201.
b)The Applicant is a self-employed [omitted] with a good reputation in the industry, such that he can rely on word of mouth for his work. However, he has been unable to work since January 2008 because of a left shoulder injury. This is his only medical condition.
c)The Applicant did not have shoulder surgery in late 2008 because he was involved in legal proceedings concerning the parties’ son, [X]. He intends to have the surgery as a private patient. Once he has the necessary operation, he will require 6 months off work because his arm will be in a sling.
d)The Applicant relies on funds lent by family for his income and owes them $20,000. He does not provide any verifying documents in relation to the debt, because he was not asked to.
e)He has been consulting an accountant and a solicitor.
f)[X] is his only dependent. He pays $20 a week in child support, provided by his mother. He has paid $771.50 in school fees in 2009. He has paid $3,000 in child support since separation. He owes legal fees. He does not provide verifying documents in relation to these matters, because he was not asked to.
g)He owns 3 units in [suburb omitted], NSW, two of which are tenanted. He uses one to house [X] on access visits.
The Tribunal outlined the Respondent Mother’s evidence at paragraphs [30] – [39]. The Mother asked why the Father had not had treatment for his alleged shoulder injury between January 2008 and May 2009, given his demonstrated borrowing capacity to obtain necessary funds. She denied receiving $20 a week in child support from the Father or his mother. She said she had received only $1,200 in child support since the parties’ separated, not $3,000, as asserted by the Applicant. The Mother has no income of her own and relies on her husband’s income and Family Tax Benefit for hers, and [X]’s, income support. She particularises her day to day expenses, with verifying documents. She is struggling financially to meet [X]’s needs.
At Paragraphs [41] – [66] of its Reasons, the Tribunal evaluates the evidence and makes its findings. The Tribunal finds that the only medical evidence relied on by the Applicant is an x-ray report which does not support a need for surgery, and does not support the Applicant’s assertion that he has been unable to work since January 2008. The Tribunal was not satisfied that the Applicant Father had been unable to work since January 2008 as a result of a shoulder injury. Nor did the Tribunal accept that the Applicant was unable to have surgery at the end of 2008 because of his involvement in litigation concerning his son.
In relation to his financial circumstances, the Tribunal said it had sought details from the Applicant about how often he worked and how he was paid, but found his responses “vague and evasive.” The Tribunal found that the Applicant avoided answering questions directly when asked to discuss his “income, work opportunities and assets.” The Tribunal had regard to the evidence given by the Applicant to the Objections Officer three months before the hearing in relation to food and rental costs, and found his evidence at the Tribunal that he was living with his mother and dependent on her, inconsistent with that evidence.
In the absence of any corroborative evidence, the Tribunal was not satisfied the Applicant owed monies to his family and to his solicitor, and was not satisfied, in the absence of any evidence in support, that the Applicant’s failure to include those debts in his Financial Statement, was based on a lack of capacity to complete the form.
The Tribunal referred to the case of Humphries & Berry(SSAT Appeal)[19] in which his Honour Federal Magistrate Slack highlighted the Applicant’s duty of full and frank disclosure of his/her financial affairs in matters of this kind.
[19] [2008] FMCAfam 409
The Tribunal found the Applicant’s evidence about his financial position incomplete and inconsistent, particularly in regard to the source of funds used for his day to day expenditure, (which he alleged was $969 a week), and concluded that the Applicant had not been truthful. The Tribunal said that “the Tribunal found Mr Trejo to be an unreliable witness in every aspect of his evidence.”[20] The Tribunal accepted the evidence of the Respondent Mother and therefore preferred her evidence where it conflicted with that of the Applicant, including her evidence that the Applicant had paid her only $1,200 in child support since separation, approximately 9 years earlier. The Tribunal noted that the Applicant did not challenge the Respondent’s evidence as to her financial position.
[20] At paragraph 47 of Tribunal Reasons
I am satisfied the Tribunal’s findings were open to it on the evidence.
The Tribunal correctly set out the law relating to earning capacity. Section 117(7B)(b) of the Child Support (Assessment) Act 1989 provides (in part):
(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;
(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;
(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.
The Tribunal correctly stated[21] that each of the three criteria must be satisfied for it to be satisfied that the Applicant’s earning capacity is greater than the income reflected in his stated income and in his taxation return. As a result of its earlier findings, the Tribunal was satisfied the three criteria were satisfied. In summary, the Tribunal said:
a)In relation to (a), it was the Applicant’s evidence that he was not working, despite ample work being available. This was not contested.
b)In relation to (b), the Applicant’s decision not to work was not justified on the basis of his health, nor on the basis of his caring responsibilities, given his son was in his care only 3 nights a fortnight and this arrangement did not interfere with a working week from Monday to Friday.
c)In relation to (c), the Tribunal was satisfied that the Applicant had not demonstrated that it was not a major purpose of his decision not to work, to affect the administrative assessment of child support in relation to the child, because payment of $1,200 in child support over 9 years established that he had not accepted responsibility for [X]’s financial support since 2001. The Tribunal had regard to the undisputed fact that the Applicant had been able to invest in the purchase of three home units just prior to separation, yet despite working since then, had not paid child support in accordance with the “modest”[22] child support assessments which had been in place, and were in arrears.
[21] At paragraph 71 of Tribunal’s Reasons
[22] At paragraph 81 of Tribunal Reasons
The Tribunal formed the view that the Applicant should be assessed on the basis of what he could reasonably earn, which the Tribunal found to be the average wage of a [omitted], or $55,000 a year, an income the Applicant told the Tribunal he could earn, if he were working. I find no error in the Tribunal’s approach to the question of whether a ground of departure was established.
The Tribunal then turned to the question of whether it would be just and equitable to depart from the administrative assessment. Section 117(4) of the Child Support (Assessment) Act 1989 provides that:
In determining whether it would be just and equitable as regards the child, the carer entitled to child support and the liable parent to make a particular order under this Division, the court must have regard to:
(a) the nature of the duty of a parent to maintain a child (as stated in section 3); and
(b) the proper needs of the child; and
(c) the income, earning capacity, property and financial resources of the child; and
(d) the income, property and financial resources of each parent who is a party to the proceeding; and
(da) the earning capacity of each parent who is a party to the proceeding; and
(e) the commitments of each parent who is a party to the proceeding that are necessary to enable the parent to support:
(i) himself or herself; or
(ii) any other child or another person that the person has a duty to maintain; and
(f) the direct and indirect costs incurred by the carer entitled to child support in providing care for the child; and
(g) any hardship that would be caused:
(i) to:
(A) the child; or
(B) the carer entitled to child support;
by the making of, or the refusal to make, the order; and
(ii) to:
(A) the liable parent; or
(B) any other child or another person that the liable parent has a duty to support;
by the making of, or the refusal to make, the order; and
(iii) to any resident child of the parent (see subsection (10)) by the making of, or the refusal to make, the order.
The Tribunal referred to its finding that the Applicant has an earning capacity well in excess of the income upon which the assessment is presently based. The Tribunal found the Applicant had not referred to any particular personal circumstances which would result in a departure order being unfair, nor had the Applicant contended that he had a ground for departure from the assessment. The Tribunal found that the Applicant was not responsible for the care and support of others. The Tribunal said it gave consideration to the Applicant’s need to support himself “and was careful to not impose a child support obligation which would result in an unrealistically low standard of living for him.”[23] The Tribunal said an income of $55,000 would be an underestimate of what “an experienced tradesman in his field would earn.”[24] The Tribunal had regard to the Applicant’s assets. The Tribunal reiterated that it did not accept the Applicant did not have capacity to earn, or that he was in “straightened financial circumstances.”[25]
[23] At paragraph 94 of Tribunal Reasons
[24] At paragraph 96 of Tribunal Reasons
[25] At paragraph 97 of Tribunal Reasons
As a result of its findings, including its finding that the Applicant’s earning capacity had not changed throughout the period since [X] was born, the Tribunal was satisfied the assessment should be backdated to the maximum 18 months before the application for change of assessment was lodged by the Respondent Mother.[26] The Tribunal said that in the event the Applicant’s circumstances changed in the future, it would be open to the Applicant to lodge a Change of Assessment at the Agency. The Tribunal noted that on an assessment based on an annual income for the Applicant of $55,000, his liability will be $130 a week. The Tribunal noted this “in no way covers all the costs incurred in his [[X]’s] upbringing.”[27]
[26] At paragraph 98 of Tribunal Reasons
[27] At paragraph 100 of Tribunal Reasons
The Tribunal determined that in light of the objects of the Act, it was otherwise proper to depart from the assessment under s.117(5) of the Act.
At Paragraph [106] of its Reasons, the Tribunal found that:
An assessment of $55,000 is conservative for Mr Trejo’s experience and stated good reputation in his industry which means he can obtain work by word of mouth and repeat business rather than having to market himself. The Tribunal is also satisfied that the variation in assessment both the backdating and extension of the departure is otherwise proper under the Act.
In written submissions, Ms Morey claimed that sections 117(7B)(b) and (c) of the Child Support (Assessment) Act 1989 are not satisfied, contrary to the Tribunal’s conclusion. Ms Morey submits that had additional information been before the Tribunal, the Tribunal would have found that the Applicant had been unable to work because of his state of health. Ms Morey relies on the contents of the Father’s affidavit of April 2010 relating to his health, filed in support of his application for leave to file out of time, to satisfy this Court, that had that evidence been available to the Tribunal, the Tribunal could not have been satisfied that Section 117(7B)(b) applies. Instead,
Ms Morey submits that the Tribunal dealt with the issue in a perfunctory manner at paragraph 79 when it said:
The Tribunal did not accept that Mr Trejo was injured and unfit for work on the evidence presented. Accordingly there is no proven state of health preventing Mr Trejo from working.
Even if the Tribunal did find a basis for departure, Ms Morey submits that the Tribunal failed to consider the hardship that would be caused to the Applicant if it made a decision to backdate the assessment[28].
Ms Morey submits the Father does not have the capacity to earn $55,000 a year and the Tribunal’s decision to backdate the decision by 18 months increased the Applicant’s arrears overnight from approximately $3,000 to almost $12,000. Ms Morey contends that the Tribunal gave insufficient reasons for backdating the assessment, particularly in light of the Objections Officer’s decision to uphold the Agency’s original decision not to backdate the assessment[29].
[28] Section 117(4)(g) of the Child Support (Assessment) Act 1989
[29] At page 7 of written submissions
As already noted, the question on appeal is whether the Tribunal erred in failing to make further inquiries as to the Applicant’s health and/or as to his financial position and whether, as a consequence, he was denied procedural fairness. I have regard to these facts:
a)The Applicant had a copy of the reasons for decision of the Objections Officer in February 2009 which set out the basis of the Agency’s decision to refuse the objection application. The Applicant was therefore aware that the Tribunal’s inquiry would focus on his health and his financial position.
b)The Applicant was told what evidence he was required to provide to the Tribunal at the pre-hearing conference and did not provide it with the specified information. The Applicant does not provide a transcript of the pre-hearing conference to suggest otherwise.
c)The Applicant did not seek an adjournment of the hearing.
d)The evidence that was provided by the Applicant to the Tribunal was inadequate and inconsistent.
e)
Apart from a number of annexures to his Affidavit sworn in April 2010, the Applicant does not adduce the evidence in these proceedings that he proposes to make available to the Tribunal if the matter is remitted to another Tribunal. Although Ms Morey assured the Court that she would assist the Father to prosecute his case at the next Tribunal hearing and would ensure all relevant material was made available at the time of such a re-hearing,
Ms Morey does not identify those documents or their contents.
f)It was the Applicant’s case to the Tribunal that although he could earn $55,000 per annum if he were working full time, he was presently unable to earn such an income because of his left shoulder injury. He does not explain the timing of the injury or how it was caused to the Tribunal or to this Court. He does not explain how the injury affects his capacity to work. The limited evidence he does provide contradicts his oral evidence. The Applicant provided the Tribunal with an X-ray report of his left shoulder[30] dated 15 January 2008, which noted that he “has a history of recurrent shoulder dislocation” and states that “no acute fracture or dislocation is seen….there is no significant degenerative change”. The evidence does not disclose why the Applicant stopped work in January 2008. If it is the Applicant’s case that his shoulder injury caused him to stop work, he provides no evidence as to what occurred in January 2008 to cause him to stop working at that particular time. On the basis of the X-ray report, the Applicant has a history prior to January 2008 of recurrent shoulder dislocation, and the Applicant states that he was working prior to that date. It follows that he was working with the same shoulder injury he complains of now. Contradicting the X-ray report, is the statement of Dr C, the Father’s General Practitioner who says that the Applicant suffers “recurrent left shoulder dislocation since 2008”[31] not before.
[30] At Folio B1 of Appeal papers
[31] Annexure E to affidavit of Applicant sworn 6 April 2010
g)The Applicant’s evidence is inconsistent in other respects. The Applicant told the Tribunal that he was due to have left shoulder surgery in November/December 2008 but could not go ahead because he was involved in legal proceedings concerning his son. He does not say he was unable to afford the surgery. In addition, in his Affidavit sworn in April 2010, the Applicant deposes to initiating parenting proceedings in late 2009, not late 2008, as a reason for delaying filing his Notice of Appeal. If these proceedings were the legal proceedings he was referring to which concerned his son, the discrepancy in the timing has not been explained, given final parenting Orders were made in March 2009.
h)Ms Morey submits that the Father suffers from depression and anxiety and was not aware that he should have led medical evidence of his mental illness at the Tribunal hearing. According to the Tribunal’s Reasons [21], Ms Morey claims that when the Applicant told the Tribunal that he did not suffer from any other medical condition except the shoulder injury, he believed that the Tribunal was only interested in physical impairments. However, even if the Tribunal had been provided with the Applicant’s affidavit evidence of April 2010 as to his mental state, and the Tribunal had accepted it at its highest, I am not persuaded it would have changed the outcome of the Tribunal proceedings. The Applicant deposes on this issue as follows:
i)His General Practitioner prescribed him anti-depressant medication in November 2008. He adduces no evidence of further prescriptions after that date, and does not say whether or not or for how long, he required or took the medication.
ii)In May 2009, he presented with severe anxiety and depression to a psychologist. He improved after consultations between May and August 2009, then ceased treatment for financial reasons. The psychologist says in his report, that the Applicant’s condition limited his capacity to manage every day tasks. The report states that:
One of the main manifestations of [Mr Trejo]’s depression and anxiety has been an acute feeling of overwhelm. This is a common symptom in which sufferers experience an inability to deal with everyday issues and instead demonstrate avoidant/shutting down behaviour in order to reduce stress levels. In Mr Trejo’s case this ‘shutting down’ response is very strong – experienced almost as an aversive response. This of course serves to intensify his problems as he finds himself unable to deal with general administration/ paperwork ie bills, tax returns. He has attempted to get help from family and friends – with minimal success.
i)The Applicant attended Court on a number of occasions after May 2009 and consulted solicitors on a regular basis[32]. The Applicant was able to finalise parenting proceedings shortly before the Tribunal hearing, in March 2009. The Applicant does not explain how he was able to attend to these matters after the Tribunal hearing in May 2009, including a Court appearance at the end of May 2009, when he claims to have been so unwell.
j)The Applicant deposes to a history of “severe depression, anxiety and stress” since 2001[33] yet adduces no medical evidence of his mental state in the period 2001 until the end of 2008. The earliest reference to any treatment he received for anxiety or depression in the material annexed to his April 2010 affidavit, is November 2008, when Dr C states that he prescribed the Applicant with an anti-depressant medication known as Mirtazapine. The Applicant adduces no evidence that his mental state affected his capacity for employment in the period 2001-2008. On the contrary, the Applicant told the Tribunal that he was working until January 2008 and has such a good reputation in his industry that he does not need to advertise for work[34].
k)In relation to his financial position, the Applicant provides incomplete and contradictory evidence, both in answer to questions at the Tribunal and by way of documents. Having set out specific figures in his Financial Statement as to his income and assets, he told the Tribunal that he “had no idea about his income and assets because he relies on his accountant to do his tax returns.” [35]
[32] Affidavit of Applicant sworn 6 April 2010
[33] At paragraph 3 of affidavit of Applicant sworn 6 April 2010
[34] At paragraph 18 of Tribunal’s Reasons
[35] At paragraph 47 of Tribunal’s Reasons
In the recent decision of Agrippa & Horton (SSAT Appeal)[36], his Honour Federal Magistrate Halligan refers to the well established principle in financial proceedings under the Family Law Act 1975[37], that each party has a duty of full and frank disclosure of all his financial circumstances[38]. The authorities provide that if the Court is satisfied that there has been deliberate non-disclosure, “the court should not be unduly cautious about making findings in favour of the innocent party.”[39] I agree with his Honour’s view[40] set out at paragraph 25 that:
In my view, the same principle must apply in the assessment of child support for the same reason. If the SSAT is satisfied that a parent has made a deliberate non-disclosure of his or her financial circumstances, it should be reasonably robust in assuming the non-disclosing parent’s financial circumstances adversely to that parent in favour of the other parent. … it may draw generous inferences adverse to the non-disclosing party about that party’s financial circumstances.
[36] [2010] FMCAfam 1144
[37] At paragraph 24
[38] See Black & Kellner (1992) 15 Fam LR 343 and Weir & Weir (1992) 16 Fam LR 154
[39] Weir & Weir (1992) 16 Fam LR 154
[40] See also Humphries & Berry [2008] FMCAfam 409
As earlier noted, the Tribunal was not satisfied that the Applicant was a truthful witness in relation to his financial position nor in relation to his capacity for work. The Tribunal found the Applicant’s evidence unreliable and unsatisfactory. Although, as submitted by Ms Morey, the Tribunal has the power to obtain information, in the circumstances of this case, there could be no obligation on the Tribunal to make further inquiries as to the Applicant’s circumstances. This is not a situation in which the Applicant was taken by surprise at the hearing, or was unaware of what was required of him, nor a situation in which the Tribunal should have been satisfied that further information was needed before a determination could be made.
His Honour Federal Magistrate Riethmuller comprehensively addressed the requirements of procedural fairness and the nature of the Tribunal process in PJ & Child Support Registrar[41]. His Honour referred to the High Court decision of Kioa v West[42] when Gibbs CJ said[43]:
The rules of natural justice are flexible, requiring fairness in all the circumstances, including the nature of the power exercised and the statutory provisions governing its exercise: Bread Manufacturers of N.S.W. v. Evans (1981) 56 ALJR 89, at pp 94, 101; 38 ALR 93, at pp 102, 117; National Companies and Securities Commission v. The News Corporation Ltd. (1984) 58 ALJR 308, at pp 314, 318; 52 ALR 417, at pp 427-428, 434.
and to Mason J’s remarks about the importance of the statutory framework[44]:
…What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject matter, and the rules under which the decision-maker is acting…
[41] [2007] FMCAfam 829 at paragraphs 25 to 27
[42] (1985) 159 CLR 550
[43] At 11
[44] At paragraphs 32 and 33
It is clear from its Reasons that the Tribunal took into account that the Applicant was self represented, and carefully questioned him at the hearing about both his financial position and his health, despite the inadequacy of his documentary evidence. I am satisfied that the Applicant was given the opportunity to answer questions and have his case heard.
In relation to the Tribunal’s decision to backdate the assessment, as earlier noted, I am satisfied it was open to the Tribunal on the evidence to make a finding that the Applicant’s circumstances had not significantly changed during that period.
I conclude that the Applicant’s appeal would fail. I am neither satisfied that the Tribunal was in error in proceeding with the Applicant’s case on the evidence provided, nor that the Tribunal failed to afford the Applicant procedural fairness. I therefore find the Applicant does not have an arguable case.
Consequences for the parties of the grant or refusal of the application
The Applicant says that if his Application for leave is refused, he will be left in serious financial difficulty. He does not adduce evidence of his current financial position in making that submission. He says the granting of leave does not prejudice the Respondent Mother because he is now paying regular child support of $41 a fortnight, by way of deduction from his Centrelink benefits. The Applicant however, concedes that he has not paid child support in accordance with the assessment, and has not paid any arrears as ordered by the Court on
6 April 2010. The Applicant does not otherwise adduce any evidence as to the consequences for him, if his application is refused.
Ms Fusitu’a, for the Child Support Registrar, submits that the Respondents have a right to retain the Tribunal judgment unless the Applicant can demonstrate that some injustice will flow if the application for extension of time to file is not granted. In the circumstances of this case, the Respondent Mother would continue to suffer financially if the Tribunal’s decision was overturned.
Ms Fusitu’a submits that the court should refuse the application for leave because of the lack of merit in the substantive appeal. For reasons set out earlier in these Reasons, I agree with this submission.
Conclusion
For the reasons outlined above, I refuse the Applicant Father’s Application for Leave to appeal out of time against the Tribunal’s decision of 13 May 2009.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Sexton FM
Date: 14 December 2010
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