Victor & Duncan & Anor (SSAT Appeal)
[2015] FCCA 1073
•30 April 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| VICTOR & DUNCAN & ANOR (SSAT APPEAL) | [2015] FCCA 1073 |
| Catchwords: 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 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 to any application for costs are to be filed and served within a further period of 14 days.
IT IS NOTED that publication of this judgment under the pseudonym Victor & Duncan & Anor (SSAT Appeal) is approved pursuant to s.110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 2044 of 2013
| MR VICTOR |
Appellant
And
| MS DUNCAN |
First Respondent
| CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
Appeal
This is an Appeal from a decision of the Social Security Appeals Tribunal made on 7th March 2013 and posted on 20th March 2013. The Tribunal set aside the decision under review and substituted a decision that for the period 15th July 2011 to 31st December 2014 the Appellant’s adjusted taxable income should be set at $360,000.00 per annum and the First Respondent’s adjusted taxable income should be set at $130,000.00 per annum.
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 Respondent
2. 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; and
2.4the 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.
Background
The background facts are set out in paragraphs [1] to [6] of the Tribunal decision and, in more detail, in paragraphs [3] to [13] of the Submissions of the Second Respondent filed on 10th October 2013.
The parties are the parents of two children, both of whom are under the age of 13 years. There has been a child support assessment in existence since 15th March 2015.
On 19th March 2012 the Appellant applied to the Child Support Registrar under the provisions of s.98B of the Child Support (Assessment) Act 1989 (Cth) for a determination to depart from the various child support assessments that had been made for the period from 1st January 2006 to 31st December 2012, on these grounds:
a)The costs of spending time or communicating with the children exceeded five per cent of his adjusted taxable income;
b)He had provided money, goods or property for the benefit of the children;
c)The costs of caring for the children were more than five per cent of his adjusted taxable income; and
d)The various assessments did not accurately reflect the First Respondent’s income, property or financial resources.
On 11th May 2012 a senior case officer determined that grounds had been established for departure from the administrative formula for child support and made a determination under s.98S of the Act setting the Appellant’s annual rate of child support at $11,000.00 for the period from 1st January to 14th July 2011 and then reduced that liability to $6,000.00 from 15th July 2011 to 30th June 2013.
The Appellant lodged an objection to that decision under s.80 of the Child Support (Registration and Collection) Act 1988 (Cth). On 19th September 2012 the objection was partly allowed. A new decision was made, setting the Appellant’s adjusted taxable income at $2,249,747.00 and the First Respondent’s adjusted taxable income at $126,901.00. The decision had the effect of increasing the Appellant’s arrears of child support by $18,775.27 and setting his annual rate of child support at $20,486.00.
On 19th October 2012 the Appellant lodged an application for review to the Social Security Appeals Tribunal under s.89 of the Registration and Collection Act[3].
[3] The phrase “Registration and Collection Act” means the Child Support (Registration and Collection) Act 1988 (Cth), see Child Support (Assessment) Act 1989 (Cth), s.5
The application for review was listed for hearing on 6th February 2013. The Appellant attended in person and the First Respondent took part by telephone.
The Tribunal made its decision on 7th March 2013 and posted the decision on 20th March 2013.
The Tribunal Decision
The decision of the Tribunal is set out in the final, unnumbered, paragraph of the decision:
From 15 July 2011 to 31 December 2014, Mr Victor’s adjusted taxable income is set at $360,000 per annum and Ms Duncan’s adjusted taxable income is set at $130,000 per annum.
This means the application is partially successful.
The Tribunal’s Reasons for Decision
In its decision, the Tribunal noted that section 98C of the Child Support (Assessment) Act 1989 required it to explore three issues, or ask itself three questions, in determining whether in the special circumstances of the case a departure from the administrative assessment formula could occur, namely:
a)Does a ground exist to depart from the administrative assessment?
b)Is it just and equitable to depart from the administrative assessment?
c)Is it otherwise proper to depart from the administrative assessment?
The Tribunal then discussed each of the three issues.
In considering whether a ground for departure existed, the Tribunal found that:
a)the Appellant’s weekly household expenses came to $5,313.00, being $276,276.00 per annum, or a gross figure of $360,000.00 (applying a 30% taxation rate);
b)the Appellant met these expenses from his financial resources, an annual pension and interest income;
c)the Appellant had a one off lump sum distribution from the disposal of his partnership interest in the sum of $2,135,160.00 which he placed into a private company;
d)the Appellant received an ongoing pension of $48,464.00 per annum and fluctuating interest income;
e)the Appellant declared a rental income of $7,800.00 per annum and claimed deductions of %15,534.00, reducing his taxable income by $7,734.00, however “The Tribunal finds that this is not an arm’s length transaction …the loss should be ignored for child support purposes”[4];
f)the Appellant claimed motor vehicle expenses of $21,497.00 in his 2012 taxation return, despite having retired on 30 June 2011, of which he claimed a deduction of $7,166.00 for “work related purposes” to see his accountant in the city, a claim which the Tribunal did not accept; and
g)the Appellant claimed the sum of $23,724.00 as the costs of managing taxation affairs, but the Tribunal attributed that to income.
[4] Tribunal decision page 4, paragraph [14]
The Tribunal’s overall finding in answer to the first question was:
…Mr Victor had income greater than that applied in the administrative assessments above and on that basis a ground exists for departure as the Tribunal is satisfied that it would be unjust and inequitable in the special circumstances of the case to not depart from the administrative assessment.[5]
[5] Ibid page 5, [16]
The Tribunal then considered whether it was just and equitable to depart from the administrative assessment, having regard to the matters set out in s.117(4) of the Assessment Act.[6]
[6] The phrase “Assessment Act” means the “Child Support (Assessment) Act 1989 (Cth), see Child Support (Registration and Collection) Act 1988 (Cth), s.4
The Tribunal noted that the Appellant’s percentage of care for the children was 37%. It found that the children attended primary school and had no income of their own. They had no special needs and were educated in the public school system. The Tribunal expressed itself to be satisfied that the ordinary ‘costs of children’ table appropriately reflects their needs, as there were no unusual expenses necessary.
Whilst the Appellant claimed that he should be assessed on an adjusted taxable income of $1,033.00 for the 2011/2012 financial year, the Tribunal was satisfied that his “income and financial resources exceed $360,000 gross per annum, on his own statement of expenditure. It is considerably more than this, however as he has distorted his financial position with his involvement with various companies, loans, losses and questionable deductions, the exact amount cannot be assessed with certainty. The Tribunal does not propose to analyse Mr Victor’s financial situation forensically. It is clear he has arranged his taxation affairs to minimise his taxation obligations to the Commonwealth.”[7]
[7] Tribunal decision page 6, [19]
The Tribunal then considered the First Respondent’s earning capacity and financial resources, noting the Appellant’s “demand” that the Tribunal should investigate her income and her family company holdings. The Tribunal was critical, to say the least, of the Appellant’s claims about the First Respondent’s financial arrangements and the information that he sought to have the Tribunal consider in respect of her situation.
In this regard, the Tribunal said:
22.Mr Victor expressed dissatisfaction with the Tribunal process and in particular its failure to compel Ms Duncan to provide documents that relate to companies owned by her family and extended family. The process of review before the Tribunal is not adversarial. Its statutory objective is to provide a mechanism of review that is ‘fair, just, economical, informal and quick’. Such a process prevents Mr Victor from engaging in a fishing expedition on grounds for which there is no factual basis, particularly when Ms Duncan’s interests are disclosed in her taxation return, which the Tribunal found to accurately represent her income but not her non-cash benefits.
23.At hearing, Mr Victor testified he has no real evidence about Ms Duncan’s financial resources and admitted it was all based on speculation and forecasts.[8]
[8] Ibid page 6, [22]-[23]
The Tribunal found that (in summary):
a)The First Respondent is employed in an arm’s length transaction by her family’s company;
b)She works for a salary and her expenses on her Statement of Financial Circumstances were consistent with her employment income;
c)The First Respondent was utilising her full earning capacity;
d)The First Respondent’s family are wealthy and she enjoys benefits that arise from that wealth, including having had her legal expenses, amounting to more than a quarter of a million dollars, paid by her family;
e)The First Respondent lives live rent-free in a home owned by her family and she had been provided with a second hand motor vehicle, which she maintains and mainly uses for work;
f)The First Respondent’s income was $130,000.00, made up of her 2012 taxable income of $99,447.00 and non-cash benefits of accommodation grossed up to $30,000.00; and
g)“Applying an adjusted taxable income of $360,000 for Mr Victor and $130,000 for Ms Duncan to the child support formula results in an annual liability of $14,268, approximately per annum.”[9]
[9] Tribunal decision page 7 [28]
The Tribunal then went on to find that neither parent had significant costs associated with their own self support. The Tribunal considered, but did not accept, the Appellant’s claim of significant travel expenses to maintain contact with his children, amounting to $31,320.00 per annum.
The Tribunal then considered the question of hardship to either parent. It did not accept the Appellant’s claims, stating:
31.Mr Victor showed the Tribunal a copy of his 2013 tax return showing an income of $1,033 per annum or $19.86 per week, a figure which is clearly not consistent with his annual expenditure. It is not the role of the Tribunal to analyse the veracity of the taxation returns, however, its random examination of some deductions and claims confirms the final assessment in these returns do not accurately depict Mr Victor’s income and financial circumstances. Further, a review of his statement of financial circumstances did not disclose any expenses that would take priority over the welfare of his children or his own self support.[10]
[10] Ibid page 8 [31]
The Tribunal found that the assessment did not represent an equal contribution to the costs of the children, but said it was appropriate in the circumstances as it represented a liability reflecting the income of both parents and was just and equitable in the circumstances of the case.
The Tribunal decided to change the assessment from 15th July 2011, being the date the Appellant had access to greater income and resources. Noting that the Appellant had now retired but the First Respondent’s income remained stable (presumably because she was still in salaried employment) the Tribunal extended the period of departure until 31st December 2014, in order to “reduce the need for administrative interference and provide certainty”.[11]
[11] Tribunal decision page 8 [33]
The next issue that the Tribunal went on to consider was whether it was otherwise proper to depart from the administrative assessment, as required by s.117(5) of the Child Support (Assessment) Act. In deciding that it was otherwise proper, the Tribunal stated that parents are obliged to support their child to the extent of their real capacity and that obligation must not be abrogated to the public welfare system when parents have the capacity to maintain their own children. The Tribunal said:
As Ms Duncan is in receipt of family tax benefit, the Tribunal is satisfied that this departure now reflects the circumstances of the case (and) finds it is otherwise proper in the circumstances of the case.[12]
[12] Ibid page 9, [34]
The Tribunal therefore decided that:
From 15 July 2011 to 31 December 2014, Mr Victor’s adjusted taxable income is set at $360,000 per annum and Ms Duncan’s adjusted taxable income is set at $130,000 per annum.
This means the application is partially successful.[13]
[13] Ibid
Submissions
The Appellant and both Respondents prepared comprehensive and helpful written submissions.
The Appellant relied on two written submissions, being:
a)The Appellant’s Summary of Argument filed on 9 August 2013; and
b)The Appellant’s Supplementary Summary of Argument filed on 30th October 2013.
The First Respondent relied on written submissions filed on 8th November 2013.
The Second Respondent, the Child Support Registrar, relied on two written submissions, being:
a)Submissions of the Second Respondent filed on 10th October 2013; and
b)Submissions of the Second Respondent on the Court’s Powers under section 110F.
Mr Othen of Counsel, who appeared for the Appellant, spoke to his written submissions on the first day of the hearing. Mr Kaplan of Counsel, who appeared for the Child Support Registrar, spoke to his submissions on the first and second days of the hearing and Mr Stenhouse of Counsel, for the First Respondent, spoke to his submissions on the second day of the hearing.
The Appellant’s Submissions
Mr Othen submitted that there were three significant aspects of this Appeal, being:
a)the determination by the Tribunal as to the Appellant having a taxable income of $360,000.00, which was an erroneous finding of fact;
b)the Tribunal failed to accord procedural fairness to the Appellant in that it formed a view that he had seriously minimised his taxation liability; and
c)the Tribunal did not take steps to compel the first Respondent to provide financial information as she had provided very few documents to the Tribunal.
Mr Othen submitted that a decision of the Social Security Appeals Tribunal can be appealed on a question of law (Registration and Collection Act, s.110B). He referred the Court to the decision of Brown FM[14] in Tasman & Tisdall (SSAT Appeal)[15] where his Honour held at [85]:
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:
…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.
[14] Now Judge Brown
[15] [2010] FMCAfam 425
The erroneous finding to which his Honour referred is an erroneous finding of fact which can lead to jurisdictional error. The submission is that the Tribunal made erroneous findings of fact that rendered the final decision perverse and unreasonable.
As to the first ground of appeal, that the Tribunal erred in failing to make a finding as to whether a ground for departure existed in respect of the (First) Respondent’s income, property, financial resources and/or earning capacity, it was submitted that the task of the Tribunal was to consider the application to depart from the administrative assessment of child support afresh. The application before it was that the assessment should be changed by reason of the mother’s income, assets or financial resources.
However, this reason was not considered by the Tribunal. At paragraphs [13] to [16] of the decision, the Tribunal only considered the Appellant’s financial circumstances and then found that, as a consequence, a ground for departure existed.
Mr Othen submitted that the Appellant, at the review hearing, was entitled to a determination of his application by the Tribunal. Whilst the Tribunal was not precluded from finding that a different ground existed from that pressed by the Appellant, it was obliged to consider and determine the application that was actually before it.
Thus, it is submitted, the failure by the Tribunal to consider the Appellant’s application that, based on the First Respondent’s financial circumstances, a ground existed in the special circumstances of the case, amounts to an error of law.
The Appellant’s submissions as to Grounds 2 and 5 were discussed together. These grounds refer to error by the Tribunal in finding that the Appellant’s taxable income ought to be assessed at $360,000.00, in that:
a)the Tribunal conflated considerations related to expenses, income and financial resources (Ground 2.1);
b)the Tribunal failed to make a finding as to the appellant’s income (Ground 2.2);
c)the Tribunal failed to make a finding as to the Appellant’s earning capacity (Ground 2.3); and
d)the Tribunal was in error in various findings of paragraph [14] of the Reasons, each finding being one not properly available to the Tribunal and (thereby) impugning the decision (Ground 2.4).
The submission is that the Tribunal made a factual error when dealing with the Appellant’s expenses to such an extent that it failed completely to address the legal matters which it was charged with addressing. Whilst the Tribunal found that the Appellant’s expenses were met from accrued financial resources, an annual pension and interest income, it did not make a finding as to what those financial resources, pension and interest income were.
It is submitted that the Tribunal declined to make any considered assessment of the Appellant’s actual financial circumstances, even though it expressed itself satisfied that his income and financial resources exceeded $360,000.00 gross per annum but “the exact amount cannot be assessed with certainty”.[16] When the Tribunal stated that it did not propose to analyse the Appellant’s financial situation forensically it abrogated its function by refusing to undertake the task it was required to do.
[16] Tribunal decision page 6 [19]
Mr Othen submitted that the parties’ financial circumstances were not straightforward. If the facts were too complex for the Tribunal to determine administratively, it had the power under s.98E of the Assessment Act to refer the case to the Court. However, in deciding to determine the case itself, the Tribunal had to weigh the evidence in a forensic manner and come to a reasoned conclusion.
The Tribunal, it is submitted, failed to understand the Appellant’s financial circumstances, even though the Appellant had made a full and frank disclosure of those circumstances.
Counsel for the Appellant submitted that:
34.The SSAT had to set out what the evidence proved Mr Victor’s income actually was, and what his assets and financial resources actually were, in order to decide whether it was just and equitable to depart from the assessment. The evidence was available for detailed findings on these matters to be made. The SSAT’s failure to do so amounts to an error of law.
35. The conclusion that Mr Victor had an adjusted taxable of $360,000 per annum was perverse and unreasonable, given the evidence actually before the SSAT. It infected and ultimately vitiated the determination. As such, it represents an error of law and the decision can be set aside. [17]
[17] Appellant’s Summary of Argument pages 6 & 7
Ground 3 claims the Tribunal’s findings in relation to the Appellant’s compliance with his taxation obligations were:
a)not properly available to the Tribunal on the evidence (Ground 3.1);
b)such that the Appellant was not afforded the opportunity to be heard (Ground 3.2); and
c)irrelevant to the decision (Ground 3.3).
It is submitted that the Tribunal’s findings were ultra vires and so unreasonable as to vitiate the determination. Further, it was procedurally unfair to find that certain deductions were “questionable” and “may have escaped the scrutiny of the Commissioner” without putting those allegations to the Appellant.
Mr Othen submitted that it would be reasonable to conclude that this adverse view of the Appellant infected the determinations and rendered them unsafe.
Grounds 4.1 and 4.5 of the Appeal were the subject of the same submission, namely that the Appellant asserted that he had to incur costs of flights for himself and the children between Sydney and Canberra in the sum of $31,320.00. It was submitted that, as the Tribunal had found those costs existed, it had to have regard to them and it was an error of law to dismiss those costs as irrelevant.
The Appellant’s Grounds 4.3 and 4.4 alleged that the Tribunal erred by:
a)confining a consideration of the First Respondent’s financial position to her income and “non-cash benefit”; and
b)failing to consider and make findings in relation to the First Respondent’s income, property, financial resources and/or earning capacity.
It was submitted that the Tribunal was “remarkably incurious” about the First Respondent’s financial circumstances and should have taken steps to compel the production of the necessary documents by the First Respondent. The conclusion that the Appellant was on a “fishing expedition” was not available on the evidence and as a matter of law the Tribunal was wrong not to require the production of documents by the First Respondent.
In his oral submissions Mr Othen asserted that it was not right that the Tribunal had no general duty to inquire. He noted that the Child Support Registrar relied on the decision of the High Court in Minister for Immigration and Citizenship v SZIAI[18] in support of the proposition that a tribunal has no general obligation to inquire, but he referred the Court to paragraph [25] of the decision, where it was held that in some circumstances a failure to make an obvious inquiry about a critical and easily ascertainable fact could constitute a failure to review.
[18] [2009] HCA 39; (2009) 83 ALJR 1123
Their Honours[19] held at [25]:
Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error…
[19] French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ
Mr Othen submitted that the Appellant had put into evidence matters relating to the First Respondent’s financial circumstances. The information he put before the Tribunal was publicly available and was different from the First Respondent’s evidence. The Tribunal, he submitted, failed to inquire into the very matters that demanded inquiry.
The Submissions made on behalf of the Child Support Registrar
Counsel for the Child Support Registrar, Mr Kaplan, put to the Court that the Appellant’s submissions failed to grapple with the distinction between questions of fact and questions of law and merely took issue with the merits of the Tribunal’s factual findings and decision.
It was submitted that, for example, questions as to whether sufficient weight was placed on an item of evidence or whether a finding was contradicted by the overwhelming weight of the evidence are questions of fact. A wrong finding of fact, even if it is perverse, will not vitiate a decision in appeals on questions of law.[20]
[20] Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139; Baranski v Comcare (2013) 296 ALR 438
Mr Kaplan then considered the Appellant’s grounds of appeal in the order in which they were addressed by Counsel for the Appellant.
As to the Appellant’s Ground 1, claiming that the Tribunal erred in failing to make a finding as to whether a ground for departure existed in respect of the Respondent’s income, property, financial resources and/or earning capacity, it was submitted on behalf of the Child Support Registrar that the Appellant[21] had taken issue with his administrative assessment in the light of the First Respondent’s income, property and financial resources:
However, implicit in that contention is that the first respondent’s income, property and financial resources far exceeded his, and therefore the assessment was unfair. To contend otherwise would result in a situation where the applicant[22] can point to the first respondent’s income and financial resources yet seek to have his income and financial resources immune from scrutiny. But this is not the approach that the applicant took during the departure application process. On the contrary…the applicant expressly put in issue his asserted lack of income and financial resources…In those circumstances, the Tribunal was entitled to base its finding at [16] (that it would be unjust and inequitable not to depart from the assessment) on the applicant’s income and financial resources. That was not ‘a different ground…’[23]
[21] Throughout the written submissions for the Child Support Registrar, Counsel refers to “the applicant”, whereas I am satisfied that, as this is an appeal, albeit in the Court’s original jurisdiction, the more appropriate term is “appellant”. However, little if anything turns on this point.
[22] i.e. the Appellant
[23] Submissions of the Second Respondent page 8 [33]
Further, Mr Kaplan submitted that s.117(2)(c)(ia) makes it a ground for departing from an administrative assessment where the assessment would result in an unjust and inequitable determination of the amount of child support to be paid because of the income, property and financial resources of either parent. The Tribunal correctly had regard to the First Respondent’s income and financial resources and determined that a ground for departure exists. Neither section 98C(1)(b) nor s.117(1)(b) of the Assessment Act makes it a condition of the exercise of the Tribunal’s jurisdiction to make a departure order on finding that more than one ground mentioned in s.117(2) exists.
As to Grounds 2.1, 2.2, 2.3, 2.4 and 5, Mr Kaplan submitted that they all should be dismissed as cavilling with the merits of the Tribunal’s findings.
It was submitted that Ground 2.1 is not a proper ground of appeal as it does not give rise to a question of law.
As to Ground 2.2, it was submitted that the Tribunal had made findings that the Appellant had an income for child support purposes of approximately $360,000.00. The word “income” is a question of fact, not a technical legal expression, as is the expression “financial resources” (see Walker & Fielding (SSAT Appeal)[24].
[24] [2010] FMCAfam 320
It was submitted that Ground 2.3 should be dismissed on the basis that it was never a part of the Appellant’s case to the Child Support Registrar that the parties’ earning capacity (as distinct from their income, property and financial resources) constituted a ground for departing from the administrative assessment.
As to the Appellant’s Ground 2.4, Mr Kaplan submitted that the ground asserts that the findings of the Tribunal in respect of the fourth, fifth and sixth dot points of the decision were not properly available to the Tribunal but it is not clear what question of law this ground of appeal raises. In any event, it was submitted that there was evidence for each of the Tribunal’s findings.
Similarly, it was submitted that the Appellant’s Ground 5, which is that the Tribunal erred in finding that his adjusted taxable income ought to be set at $360,000.00, does not give rise to a question of law.
As to the Appellant’s submission that the Tribunal’s finding was unreasonable in the Wednesbury[25] sense, Mr Kaplan submitted that such an argument can only be made in respect of the exercise of discretionary powers, not the making of factual findings (Baranski v Comcare[26] at 441 [19] per Katzmann J). Further, there is a real question as to whether Wednesbury unreasonableness has any operation in appeals on questions of law.
[25] Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223
[26] supra
It was submitted that Ground 3, insofar as it raised an allegation of a denial of procedural fairness as to its findings about the appellant’s tax return, should be dismissed. Mr Kaplan submitted that the Tribunal had put the Appellant on notice that it had serious concerns as to his tax affairs, being an issue critical to its decision (see Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd[27] at 592A). The Tribunal was not required to invite the Appellant to comment on its provisional views or thought processes before making its decision.
[27] (1994) 49 FCR 576
As to Grounds 4.1 and 4.5 of the Appeal, it was submitted that they take issue with the merits of the Tribunal’s findings at paragraph [30] of its decision and should therefore be dismissed.
It was also submitted that Grounds 4.3 and 4.4 of the Appeal do not give rise to questions of law and should be dismissed. The Tribunal has no general obligation to inquire and a failure to inquire will not result in a breach of procedural fairness (Minister for Immigration and Citizenship v SZIAI[28] at 1128-1129 [24]). Again, there is nothing in s.103N of the Registration and Collection Act that imposes an obligation on the Tribunal to inquire.
[28] supra
In summary, it was submitted that, except for Ground 3, which complains of a denial of procedural fairness, the Appellant’s grounds of appeal do not give rise to questions of law and should therefore be dismissed. Further, none of the grounds, including Ground 3, reveals an error of law on the part of the Tribunal. Thus, the Appeal should be dismissed with costs.
Submissions on behalf of the First Respondent
Counsel for the First Respondent, Mr Stenhouse, submitted that whilst his client initially neither supported nor objected to the Appeal as it was then brought by the Appellant, her position had changed as a result of the leave granted to amend the grounds of appeal. The First Respondent now opposes the Orders sought by the Appellant.
The First Respondent referred the Court to the decision of Brown FM[29] in Carrigan & Fredericks (SSAT Appeal)[30] (cited with approval in Schmidt & Geller & Anor[31]), where his Honour provided a succinct summary at [103], [105], [107] – [108], of the principles to be followed in considering an appeal of this nature.
[29] Now Judge Brown
[30] [2011] FMCAfam 544
[31] [2012] FMCAfam 735
Mr Stenhouse went on to submit that throughout the Appellant’s grounds of appeal lie the two central concepts that:
a)the finding of fact that the Appellant’s income should, for the purposes of the Act, be adjusted to $360,000.00 before tax, was “perverse”, “unreasonable” or otherwise offending logic”, so as to fall within the dicta of Brown FM in Carrigan & Fredericks; and
b)the investigation by the SSAT into the First Respondent’s financial affairs was so lacking that the Appellant was somehow denied procedural fairness by the Tribunal in making a determination that a departure order under the Act was “just and equitable”.
It is submitted that a corollary of the second concept is that the Appellant seeks directive Orders from the Court upon remission seeking that the First Respondent make certain contingent financial disclosures to the Tribunal, an order that Mr Stenhouse described as “a nonsense”.[32]
[32] Submissions of the First Respondent page 4 at [6]
The thrust of the First Respondent’s submission is that the Appellant, being unhappy with the determination of the SSAT, is seeking that the Court conduct a review of the merits of the Tribunal decision under the ruse de guerre that the Tribunal erred in law.
Essentially, the submissions of Counsel for the First Respondent echo those of Counsel for the Child Support Registrar in that the submission is that the Appellant has failed to demonstrate any error of law on the part of the Tribunal, including a denial of procedural fairness and so the Appeal should be dismissed.
Conclusions
As Counsel for the Appellant submitted, the grounds of the Appeal essentially are that:
a)The determination by the Tribunal as to the Appellant having a taxable income of $360,000.00 was an erroneous finding of fact;
b)The Tribunal failed to accord procedural fairness to the Appellant in that it formed a view that he had seriously minimised his taxation liability; and
c)The Tribunal did not take steps to compel the First Respondent to provide financial information as she had provided very few documents to the Tribunal.
I am not satisfied that the Tribunal made an error of law in respect of any of those grounds, whether by making a factual decision that was perverse or Wednesbury unreasonable, denying the Appellant procedural fairness or failing in any general duty to inquire. The reasons will follow.
The Appellant relies on five main grounds of appeal, which include eleven sub-grounds. I will deal with the grounds and sub-grounds in order.
Ground 1 – that the Social Security Appeals Tribunal erred in failing to make a finding as to whether a ground for departure existed in respect of the First Respondent’s income, property, financial resources and/or earning capacity.
The Tribunal Decision records that the Appellant “applied for a change of assessment on the ground that the rate of child support is unjust and inequitable because of both his and Ms Duncan’s income, property, financial resources and earning capacity”.[33] The Tribunal Decision goes on to say that the grounds upon which the Appellant sought departure from the assessment “are found in subparagraphs 117(2)(ia) and (ib) of the Act”[34]. There is clearly a typographical error in the paragraph, because there are no subparagraphs 117(2)(ia) and (ib) in the Assessment Act. The reference is clearly to subparagraphs 117(2)(c)(ia) and (ib).
[33] Tribunal Decision page 3 at paragraph [9]
[34] Ibid
The Tribunal found that the Appellant had income greater than that applied in the administrative assessments and on that basis “a ground exists for departure as the Tribunal is satisfied that it would be unjust and inequitable in the special circumstances of the case to not depart from the administrative assessment”.[35]
[35] Tribunal Decision page 5 at [16]
Noting that the Appellant had put in issue his asserted lack of income and financial resources, it was within the Tribunal’s power to base its findings that it would be unjust and inequitable in the special circumstances of the case not to depart from the administrative assessment on the Appellant’s income.
Further, the Tribunal acted within the power given to it by s.117(2)(c)(ia) when it based its decision on the Appellant’s income, which it found to be “greater than that applied in the administrative assessments …”[36]
[36] Ibid page 5 at [16]
Subparagraph 117(2)(c)(ia) provides:
(c)that, in the special circumstances of the case, application in relation to the child of the provisions of this Act relating to administrating 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:
(ia)because of the income, property and financial resources of either parent;
As Mr Kaplan of Counsel submitted, the subparagraph refers to “the income, property and financial resources of either parent” (emphasis added). Subsection 117(1)(b)(i) (and, for that matter, subsection 98C(1)(b)(i)) refers to “one or more of the grounds for departure mentioned in subsection (2)” as providing the ground upon which the Court may make a departure order.
There is no need for the Tribunal to be satisfied that more than one ground for departure mentioned in s.117(2) exists.
Consequently, there is no error of law by the Tribunal and Ground 1 of the Appeal fails.
Ground 2 – 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:
2.1 the Tribunal conflated considerations related to expenses, income and financial resources;
2.2 the Tribunal failed to make a finding as to the Appellant’s income;
2.3 the Tribunal failed to make a finding as to the Appellant’s earning capacity; and
2.4 the 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 one not properly available to the Tribunal and which has had the effect of impugning the decision.
This is either one combined ground, or four separate sub-grounds. Counsel for the Child Support Registrar appears to have treated it as the latter, although the Appellant seems to have treated it as one combined ground.
The Appellant submitted that this was a case where the Tribunal failed to understand the Appellant’s financial circumstances. The submission is that:
The conclusion that Mr Victor had an adjusted taxable income of $360,000 per annum was perverse and unreasonable, given the evidence actually before the SSAT. It infected and ultimately vitiated the determination. As such, it represents an error of law and the decision can only be set aside.[37]
[37] Appellant’s Summary of Argument page 7 at [35]
Each one of the four sub-grounds, 2.1 to 2.4, can be aptly described as cavilling with the merits of the Tribunal’s findings. None of those grounds, considered separately raises a question of law. It is clear that there was evidence before the Tribunal to allow it to form the view that it did.
The argument that the Tribunal’s decision was “perverse and unreasonable” can only establish an error of law if the Court finds that the decision was so unreasonable that no reasonable decision-maker could have reached it (Associated Provincial Picture Houses v Wednesbury Corporation[38] at 230).
[38] [1948] 1 KB 223
The reliance on Wednesbury unreasonableness will not avail the Appellant in this case. In Baranski v Comcare[39], Katzmann J (with whom Allsop CJ and Tracey J agreed) held at [19]:
Even if Wednesbury unreasonableness has any application in an appeal limited to a question of law and one which is not concerned with the exercise of a discretion (see Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR at 626 [40]), the error is not of this kind…Even if the decision were perverse, the argument would face the hurdle imposed by cases such as Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139.
[39] [2013] FCAFC 31; (2013) 296 ALR 438
I am not satisfied that the Tribunal’s decision on the Appellant’s adjusted taxable income was unreasonable, let alone so unreasonable that no reasonable decision-maker could have reached it.
I am satisfied that Ground 2 of the Appeal, both as a combined ground and in its component parts, does not establish an error of law and it should therefore be dismissed.
Ground 3 – The Tribunal appears to have made findings in relation to the Appellant’s compliance with his taxation obligations, which findings:
3.1 were not properly available to the Tribunal on the evidence;
3.2 the Appellant was not afforded the opportunity to be heard in respect of; and,
3.3 were irrelevant to the decision.
This ground is a procedural fairness ground, at least in relation to sub-ground 3.2.
Essentially, the Appellant argues that the Tribunal formed wholly erroneous conclusions about his financial affairs, so unreasonable as to vitiate the determination. The Appellant argues that, as his taxation affairs were handled by his accountant, it was procedurally unfair for the Tribunal to make adverse findings about his taxation affairs without putting those allegations to him or giving him the opportunity to call evidence from his accountant. Further, it is a reasonable conclusion that the Tribunal’s adverse view infected its determinations and made them unsafe.
First of all, there is evidence upon which the Tribunal could have formed its views. The Tribunal’s conclusions were not unreasonable in the circumstances, let alone Wednesbury unreasonable.
Second, there is evidence that the Tribunal discussed with the Appellant at the hearing matters concerning the expenses that he claimed and let him know that it had serious concerns about them. Thus, the Appellant was put on notice that the Tribunal had serious concerns about his taxation arrangements, being an issue critical to the Tribunal’s decision (see Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd[40]). The Tribunal was not required to invite the Appellant to comment on its provisional views or thought processes before making its decision (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs[41]).
[40] (1994) 49 FCR 576
[41] [2006] HCA 63; (2006) 228 CLR 152
In SZBEL the High Court held at [48]:
Secondly, as Lord Diplock said in F Hoffman-La Roche & co AG v Secretary of State for Trade and Industry [24]:
“the rules of natural justice do not require the decision-maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.”
Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.
There is no denial of procedural fairness. Ground 3 of the Appeal does not establish an error of law and it should therefore be dismissed.
Ground 4 – That having found that a ground existed for departure from the [administrative] assessment of child support, the Tribunal erred in:
4.1 failing to have appropriate or any regard to the actual costs of care for the children;
4.3 confining a consideration of the Respondent’s financial position to her income and one ‘non-cash benefit’;
4.4 failing to consider and make findings in relation to the Respondent’s income, property, financial resources and/or earning capacity;
4.5 failing to have any or any sufficient regard to the ‘costs of contact’ between the Appellant and the children.
The Appellant submits that subsection 117(4) of the Assessment Act sets out the matters the Tribunal had to consider as to whether or not it was just and equitable to depart from the assessment. The Appellant asserted that to spend time with his children he had to incur costs for himself and the children for flights amounting to $31,320.00. It is submitted that the Tribunal, having found that the costs existed, had to have regard to them, but instead dismissed them as not relevant, which was an error of law.
Ground 4.1 is essentially an attempt at merits review. Whether the Tribunal gave “appropriate” regard to the evidence is a question of fact, not law.
If, on the other hand, the Tribunal did not have “any” regard for the evidence may, as Mr Kaplan submitted, give rise to a question as to whether it had regard to a mandatory consideration in s.117(4). It is clear, however, from paragraph [30] of the Tribunal Decision that it did have regard to the Appellant’s evidence of the significant travel expenses that he incurred in order to maintain contact with his children. However, the Tribunal found that:
The majority of expenses are on flights and taxi fares to and from airports, expenses that can be avoided if Mr Victor returns the children home on a Sunday evening…It is thus not appropriate to consider the travel costs alleged by Mr Victor as Ms Duncan also has costs associated with the compliance with the Court Order. Given its findings regarding income and financial resources, the Tribunal concludes these costs do not impact on Mr Victor’s ability to pay child support.[42]
[42] Tribunal Decision pages 7-8 at [30]
The Tribunal clearly had regard to the Appellant’s evidence of the actual costs of the care of the children. However, it did not accept that evidence.
This ground does not disclose an error of law and will be dismissed.
Ground 4.2 was not pressed.
Grounds 4.3 and 4.4 both claim that the Tribunal had some general obligation to inquire into the First Respondent’s financial circumstances beyond that evidence that she had provided to the Tribunal. It is well established that there is no such obligation.
The High Court considered the question of a duty to inquire in Minister for Immigration and Citizenship v SZIAI[43], where their Honours said at [24] and [25:
24.Mason CJ and Deane J in Teoh[44]also rejected the proposition that failure by a decision-maker to initiate inquiries could constitute a departure from common law standards of natural justice or procedural fairness. It is difficult to see any basis upon which a failure to inquire could constitute a breach of the requirements of procedural fairness at common law…
25.Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to a reference to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error…It may be that a failure to ,make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error…
[43] [2009] HCA 39; (2009) 83 ALJR 1123
[44] Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273
Section 103N of the Child Support (Registration and Collection) Act 1989 provides that:
(1) The SSAT, in reviewing a decision under this Part:
(a)is not bound by legal technicalities, legal forms or rules of evidence; and
(b)is to act as speedily as a proper consideration of the review allows.
(2)The SSAT may inform itself on any matter relevant to a review of a decision in any manner it considers appropriate.
As Counsel for the Child Support Registrar submitted, there is no obligation on the Tribunal to inquire in s.103N.
Subsection 98H(1) of the Assessment Act provides that:
In making a decision under this Division in relation to an application, the Registrar:
(a) may act on the basis of:
(i) the application and the documents accompanying it; and
(ii) (irrelevant)
(b)may, but is not required to, conduct any inquiry or investigation into the matter.
Subsection 103T(1) of the Registration and Collection Act provides that:
Subject to the regulations, the SSAT may, for the purpose of reviewing a decision under this Part, exercise all the powers and discretions that are conferred by this Act and the Assessment Act on the Registrar.
Thus, it can be seen that there is no general obligation on the Tribunal to make inquiry under either the Assessment Act or the Registration and Collection Act.
On examining the Tribunal Decision, the Tribunal noted at paragraph [20] the demand by the Appellant to investigate the First Respondent’s income and her family company holdings. “He said a failure to so was a breach of procedural fairness and natural justice”.
The Tribunal stated at [22] and [23]:
22.Mr Victor expressed dissatisfaction with the Tribunal process and in particular its failure to compel Ms Duncan to provide documents that relate to companies owned by her family and extended family. The process of review before the Tribunal is not adversarial. Its statutory objective is to provide a mechanism of review that is ‘fair, just, economical, informal and quick’. Such a process prevents Mr Victor from engaging in a fishing expedition on grounds for which there is no factual basis, particularly when Ms Duncan’s interests are disclosed in her taxation return, which the Tribunal found to accurately represent her income but not her non-cash benefits.
23.At hearing, Mr Victor testified he has no real evidence about Ms Duncan’s financial resources and admitted it was all based on speculation and forecasts…
I am satisfied that the Tribunal had no general duty of inquiry. It is also clear from the Tribunal Decision that there was no failure by the Tribunal to make an obvious inquiry about a critical fact , the existence of which was easily ascertained.
Grounds 4.3 and 4.4 do not establish any error of law on the part of the Tribunal and will therefore be dismissed.
Ground 4.5 claims that the Tribunal erred by “failing to have any or any sufficient regard to the ‘costs of contact’ between the Appellant and the children”. This ground is essentially identical to Ground 4.1 and, again, is an attempt at merits review. It will be dismissed for the reasons set out in paragraphs [102] to [105] above.
Ground 5 – That the Tribunal erred in finding that the Appellant’s adjusted taxable income ought to be set at $360,000.
Again, as Counsel for the Child Support Registrar submitted, this ground is in the same position as the four sub-grounds of Ground 2, being 2.1 to 2.4 inclusive, and is merely cavilling with the merits of the Tribunal’s findings. A claimed error by the Tribunal in finding that the Appellant’s adjusted taxable income ought to be set at $360,000.00 does not give rise to a question of law.
The Tribunal based its findings on the Appellant’s evidence in his Statement of Financial Circumstances that he spent $5,313.00 per week on his household expenses, which amounts to an annual expense of $276,276.00. The Tribunal then calculated that in order to meet those expenses he would require a gross income of $360,000.00 (applying a 30% taxation rate). The Tribunal did not accept that the Appellant should be assessed on a taxable income of $1033.00 for the 2011-2012 financial year.
The Tribunal did not accept some of the Appellant’s claims. In one case, it was highly sceptical of his claimed motor vehicle expenses, noting:
Likewise, despite retiring on 30 June 2011, Mr Victor claimed $21,497 in motor vehicle expenses in his 2012 taxation return ultimately claiming a deduction of $7,166 for “work related purposes”. Mr Victor denied that such deductions were unreasonable as “I have to visit the City to see my accountant”. Mr Victor lives in (omitted) and the Tribunal considers he would have to visit his accountant almost every other day to incur such high travel expenses.[45]
[45] Tribunal Decision pages 4 and 5 at [14]
In my view, the Tribunal reached its decision on the basis of the evidence before it. I am not satisfied that the decision was perverse or unreasonable, let alone so unreasonable that no reasonable decision-maker could have reached it.
Ground 5 does not give rise to a question of law. There is no error of law. This ground of appeal will be dismissed.
Orders
As all of the Appellant’s Grounds of Appeal have been unsuccessful, the Appeal will be dismissed and the decision of the Social Security Appeals Tribunal will be affirmed.
The Child Support Registrar seeks an order that the Appeal should be dismissed with costs. The First Respondent has not at this stage made any submission about costs. I propose to order that any party wishing to pursue an order for costs may do so by way of a written submission accompanied by an affidavit setting out the way in which the amount of costs sought is quantified. Rule 21.02 prescribes that an application for costs may be made:
a)at any stage in a proceeding;
b)within 28 days after a final decree or order is made; or
c)within any further time allowed by the Court.
Any written submission and supporting affidavit seeking costs should be filed and served within 28 days. Any submission in reply should be filed and served within a further period of 14 days.
I certify that the preceding one hundred and twenty-seven (127) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 30 April 2015
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