Victor & Duncan & Anor (SSAT Appeal) - [2015] FCCA 1073

FEDERAL CIRCUIT COURT OF AUSTRALIA

VICTOR & DUNCAN & ANOR (SSAT APPEAL)

[2015] FCCA 1073

Catchwords:
CHILD SUPPORT – Appeal from decision of Social Security Appeals Tribunal – where SSAT set aside decision under review – where SSAT substituted a decision reducing appellant’s taxable income and increasing respondent’s taxable income – whether Tribunal made erroneous findings of fact – whether erroneous findings of fact can lead to jurisdictional error – whether Tribunal decision was perverse and unreasonable – appeal must be on a question of law – whether merits review – whether decision reviewable for Wednesbury unreasonableness – procedural fairness – whether appellant was denied procedural fairness – whether Tribunal had a duty to inquire into the respondent’s financial circumstances – whether failure to make certain inquiries was unreasonable – whether failure to inquire constituted jurisdictional error – no reviewable error.

WORDS AND PHRASES – “income” is an ordinary English expression – “financial resources” is an ordinary English expression – the meaning of “financial resources” is a question of fact.

Legislation:

Child Support (Assessment) Act 1989 (Cth), ss.5, 98B, 98C, 98E, 98H, 98S, 117, 161
Child Support (Registration and Collection) Act 1988 (Cth), ss.4, 80, 89, 103, 103K, 103N, 103R, 103T, 110B, 110F

Federal Circuit Court Rules 2001, r.21.02

Cases cited:
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139
Baranski v Comcare [2013] FCAFC 31; (2013) 296 ALR 438
Carrigan & Fredericks (SSAT Appeal) [2011] FMCAfam 544
Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Schmidt & Geller & Anor (SSAT Appeal) [2012] FMCAfam 735
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
Tasman & Tisdall (SSAT Appeal) [2010] FMCAfam 425
Walker & Fielding (SSAT Appeal) [2010] FMCAfam 320

Appellant:

MR VICTOR

First Respondent:

MS DUNCAN

Second Respondent:

CHILD SUPPORT REGISTRAR

File Number:

SYC 2044 of 2013

Judgment of:

Judge Scarlett

Hearing dates:

15 October & 15 November 2013

Date of Last Submission:

15 November 2013

Delivered at:

Sydney

Delivered on:

30 April 2015

REPRESENTATION

Counsel for the Appellant:

Mr Othen

Solicitors for the Appellant:

Adrian Twigg & Co

Counsel for the First Respondent:

Mr Stenhouse (direct brief)

Counsel for the Second Respondent:

Mr Kaplan

Solicitors for the Second Respondent:

Sparke Helmore Lawyers

ORDERS

The Amended Notice of Appeal filed on 29 October 2013 is dismissed.
The decision of the Social Security Appeals Tribunal made on 7 March 2013 and posted on 20 March 2013 is affirmed.
Written submissions in support of any application for costs and any affidavit setting out the way in which the costs sought are quantified are to be filed and served within 28 days from the date of these Orders.
Any written submissions in opposition…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] FCCA 1073
Decision Date: 30 April 2015

CaseChat Overview and Summary

This matter came before Judge Scarlett on an appeal from a decision of the Social Security Appeals Tribunal (SSAT). The appellant sought to have the SSAT's decision set aside and remitted for a rehearing, with specific directions regarding the inquiry into the respondent mother's financial circumstances. The SSAT had previously set aside a decision under review and substituted a new decision that reduced the appellant's taxable income and increased the respondent's taxable income.

The primary legal issues before the court were whether the SSAT had made erroneous findings of fact, whether such errors could constitute jurisdictional error, and whether the SSAT's decision was perverse and unreasonable. The appellant also contended that the SSAT erred in failing to make findings regarding grounds for departure from administrative child support assessments, in its approach to the appellant's income and earning capacity, and in its consideration of the respondent's financial position. Procedural fairness was also raised, specifically whether the appellant was denied procedural fairness and whether the SSAT had a duty to inquire further into the respondent's financial circumstances.

Judge Scarlett reasoned that an appeal to the court was limited to questions of law, and that the SSAT's findings of fact, even if considered erroneous, did not necessarily amount to jurisdictional error unless they were so unreasonable as to be perverse. The court found that the SSAT's decision was not perverse or unreasonable, and that the appellant had not been denied procedural fairness. The court also determined that the SSAT was not required to make the extensive inquiries into the respondent's financial circumstances that the appellant sought. The ordinary meaning of "income" and "financial resources" were considered, with the latter being a question of fact for the SSAT.

The Amended Notice of Appeal was dismissed, and the decision of the Social Security Appeals Tribunal was affirmed. The court also made orders regarding the filing and service of submissions in support of and in opposition to any application for costs.

Orders

Orders of the court

The Amended Notice of Appeal filed on 29 October 2013 is dismissed.

The decision of the Social Security Appeals Tribunal made on 7 March 2013 and posted on 20 March 2013 is affirmed.

Written submissions in support of any application for costs and any affidavit setting out the way in which the costs sought are quantified are to be filed and served within 28 days from the date of these Orders.

Any written submissions in opposition to any application for costs are to be filed and served within a further period of 14 days.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

In his Amended Notice of Appeal[1] filed on 29th October 2013, the Appellant seeks the following Orders:1. That the Appeal be allowed;2. That the decision of the Social Security Appeals Tribunal (“SSAT”) dated 7 March 2013 be set aside;3. That, pursuant to Section 110F(2)(b) of the Child Support (Registration and Collection) Act 1988, this matter be remitted to a freshly constituted SSAT for a rehearing;4. That, pursuant to Section 110F(2)(b) of the Child Support (Registration and Collection) Act 1988, and without limiting the SSAT as to further directions and decisions it may make, the Court hereby directs the freshly constituted SSAT to:4.1require and direct the Respondent mother pursuant to Section 103K of the Child Support (Registration and Collection) Act 1988, and prior to the remitted hearing, to give to the SSAT such information as the SSAT requires, and to produce to the SSAT any documents in the custody or under the control of the Respondent necessary for the SSAT to make findings about the nature and extent of the Respondent’s income assets and financial resources.4.2consider in the circumstances of the Case, after compliance by the mother with the direction under Section 103K just referred to, and after hearing submissions by the parties, as a preliminary question before the hearing of the review, whether, pursuant to Section 98E of the Child Support (Assessment) Act 1989, the SSAT is satisfied that the issues raised by the application are too complex to be dealt with by the SSAT and if so whether[1] Which inexplicably named the solicitors acting for the Child Support Registrar as the Second Respondent rather than the Child Support Registrar(a) to refuse to determine the application; and(b)recommend that application be made to a Court having jurisdiction under the Assessment Act. 4.3If the SSAT decides to determine the application then after a hearing of the review and as part of its reviewing function:(a)Make findings about the nature and extent of the Respondent’s income, assets and financial resources;(b)Make findings about the nature and extent of the Appellant’s income, assets and financial resources; and(c)Without limiting the discretion of the SSAT to find that one or more grounds exist pursuant to section 117(1) of the Child Support (Assessment) Act 1989, determine the application of the appellant that a ground exists namely that in the special circumstances of the case, the income, property and financial resources of the respondent mother are such that the administrative assessment results in an unjust and inequitable determination of the level of financial support to be provided by the liable parent. The Appellant relies on the following grounds of appeal:1. That the Social Security Appeals Tribunal [the Tribunal] erred in failing to make a finding as to whether a ground for departure existed in respect of the Respondent’s[2] income, property, financial resources and/or earning capacity.[2] Meaning the First Respondent2. That the Tribunal erred in the approach adopted to and determination made in respect of the Appellant’s income (if a finding was made), in that:2.1the Tribunal conflated considerations related to expenses, income and financial resources;2.2the Tribunal failed to make a finding as to the Appellant’s income;2.3the Tribunal failed to make a finding as to the Appellant’s earning capacity; and2.4the Tribunal was in error in each finding made in ‘dot points’ 4,5 and 6 of paragraph 14 of the Reasons for Decision, each finding being not properly available to the Tribunal and which has had the effect of impugning the decision.3. The Tribunal appears to have made findings in relation to the Appellant’s compliance with his taxation obligations, which findings:3.1were not properly available to the Tribunal on the evidence;3.2the Appellant was not afforded the opportunity to be heard in respect of; and,3.3 were irrelevant to the decision.4. That having found that a ground existed for departure from the administration (sic) assessment of child support, the Tribunal erred in:4.1failing to have appropriate or any regard to the actual costs of care for the children;4.2 (not pressed) 4.3confining a consideration of the Respondent’s financial position to her income and one ‘non-cash benefit’;4.4failing to consider and make findings in relation to the Respondent’s income, property, financial resources and/or earning capacity;4.5failing to have any or sufficient regard to the ‘costs of contact’ between the Appellant and the children;4.6 (not pressed) 4.7 (not pressed)5.That the Tribunal erred in finding that the Appellant’s adjusted taxable income ought to be set at $360,000.