Weston and Weston and Anor (SSAT Appeal)

[2013] FCCA 640

FEDERAL CIRCUIT COURT OF AUSTRALIA

WESTON & WESTON & ANOR (SSAT APPEAL) [2013] FCCA 640

Catchwords:
CHILD SUPPORT – SSAT appeal – dismissal.

Legislation:  
Child Support (Assessment) Act 1989, s.117
Child Support (Registration and Collection) Act 1988, ss.103X, 110B, 110K

Administrative Appeals Tribunal Act 1974, s.44

Barnett & Child Support Registrar (SSAT Appeal) [2011] FMCAfam 1224
Comcare v Etheridge [2006] FCAFC 27
Tasman & Tisdall (SSAT Appeal) [2010] FMCAfam 425
Gyselman & Gyselman (1992) FLC 92-279
LDME & JMA (SSAT Appeal) [2007] FMCAfam 712
Australian Postal Corporation v Hughes [2009] FCA 1057; 50 AAR 267
Repatriation Commission v Owens (1996) 70 ALJR 904

Waites & Lawson (SSAT Appeal) [2011] FMCAfam 42

Applicant: MS WESTON

First Respondent: MR WESTON

Second Respondent: CHILD SUPPORT REGISTRAR

File Number: BRC 7389 of 2010

Judgment of: Judge Coates

Hearing date: 15 March 2013

Date of Last Submission: 15 March 2013

Delivered at: Brisbane

Delivered on: 28 June 2013

REPRESENTATION

Solicitors for the Applicant: Self represented

Solicitors for the first Respondent: Self represented

Solicitors for the second Respondent: Department of Human Services

ORDERS

1. That the Notice of Appeal filed 21 June 2012 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Weston & Weston & Anor (SSAT Appeal) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRC 7389 of 2010

MS WESTON

Applicant

And

MR WESTON

First Respondent

CHILD SUPPORT REGISTRAR

Second Respondent

REASONS FOR JUDGMENT

1. This is an appeal against a decision of the Social Security Appeals Tribunal (the Tribunal) delivered 18 May 2012 (signed 23 May 2012).

2. The self-represented appellant seeks orders setting aside the decision and remitting the matter back “for a hearing according to law”.

3. She also seeks costs, however, being self-represented, that is not in issue.

4. This appeal comes because the Tribunal set aside a decision of the Child Support Agency, which had set the father's income at $67,000. That figure was set after the appellant mother had applied to the Child Support Agency for a departure from the then administrative assessment. The father applied to the Tribunal and the Tribunal substituted a new decision, that there be no departure from the then administrative assessment of child support for the child X, born (omitted) 2003. All the wage figures are stated in the decision which now comes before the court on appeal, but they are not relevant to the case run by the appellant.

5. She has three grounds of appeal. This is how they are stated in the Notice of Appeal filed 21 June 2012:

   “1. Paragraph 30 – The Tribunal misinformed itself and thus erred in law when it said “Ms Weston did not take any issue with Mr Weston’s taxable income representing the income which has actually been available to him since he moved to the Sunshine Coast.” Particulars:-

   (a) Ms Weston squarely put that issue into dispute in her letter to the Child Support Agency dated 3 September 2011 at page 4 under the heading “in regard to Mr Weston’s current hourly rate and working for his friend Mr C;

   (b) Ms Weston addressed the issue again in the letter written by her to the Tribunal on 4 March 2012 at page 1 of that letter by reference to page 285 of the documents produced by the agency to SSAT;

   (c) Ms Weston addresses the issue again in her letter to SSAT dated 7 May 2012 in the last paragraph of the first page of that letter;

   2. Paragraph 37 – The Tribunal misinformed itself and thus erred in law when it said “since then he has been working casually on the Sunshine Coast. Sub-paragraph (i) therefore does not apply”. Particulars:-

   (a) The Tribunal appears to have accepted that the fact that Mr Weston has been working casually on the Sunshine Coast is an adequate answer to subsection 117(7B)(a)(i);

   (b) The Tribunal gives no reasons at all for coming to such a conclusion;

   3. Paragraphs 39 and 40 – The Tribunal has erred in law by making its decision on the basis that Mr Weston’s move to the Sunshine Coast in early 2010 is the only event that satisfies subsection 117(7B)(b). Particulars:-

   (a) The Tribunal has completely overlooked the submissions made by Ms Weston that there was a significant change in Mr Weston’s income earned from casual work on the Sunshine Coast in the period leading up to the issue of the first child support assessment in May 2010 and the period after;

   (b) That change was of itself capable of satisfying subsection 117(7B)(b)(iii);

   (c) On that basis, the Tribunal failed to apply the criteria set out in subsection 117(7B)(c) to that change at all;

   (d) That matter was squarely addressed by Ms Weston in her letter to the Tribunal dated 4 March 2012 at page 1.”

6. As can be seen from the drafted grounds, the appellant refers to paragraphs in the written decision made by the Tribunal.

7. The appeal is brought pursuant to s.110B of the Child Support (Registration & Collection) Act 1989, which states:

   “s.110B Appeals from decisions of SSAT

   A party to a review by the SSAT under Part VIIA may appeal to a court having jurisdiction under this Act, on a question of law, from a decision of the SSAT on that review under section 103S.”

8. Fundamental to such an appeal is that it be based on “a question of law”.

9. It is also essential that such question be identified.

10. It is important to identify the nature of the appeal, because the appellant at first informed the court that this was an appeal on an error of law, not necessarily the same issue as raising a question of law.

11. Various authorities have indicated that the nature of such an appeal pursuant to s.110B is not unlike an appeal pursuant to s.44(1) of the Administrative Appeals Tribunal Act 1974.

12. Federal Magistrate Jarrett in Barnett & Child Support Registrar (SSAT Appeal) [2011] FMCAfam 1224, identified the nature of such an appeal, from paragraph 7:

    “7. In Comcare v Etheridge, Branson J (with whom Spender and Nicholson JJ agreed) summarised the nature of the right conferred by s.44(1) in the following terms:

    13. The nature of an appeal under s 44(1) of the AAT Act was considered in Birdseye v Australian Securities and Investment Commission [2003] FCAFC 232; 76 ALD 321 (‘Birdseye’) by Stone J and me particularly at [10]‑[18].  We expressed our approval of the observation made by Gummow J in TNT Skypack International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178 that an appeal ‘on a question of law’ is narrower than an appeal that merely involves a question of law.  As his Honour pointed out, where an appeal lies ‘on a question of law’ the subject matter of the appeal is the question or questions of law.  That is, the subject matter of the appeal is the question or questions of law stated as required by O 53 r 3(2)(b).

    14. The legislature, by creating a statutory right of appeal to a party to a proceeding before the Tribunal in the narrow terms of s 44(1), disclosed an intention to limit the capacity of the Court on an appeal under s 44(1) to review factual findings of the Tribunal.  An appeal pursuant to s 44(1) is thus quite different from an appeal from a judicial body under s 24 of the Federal Court Act.  An appeal under s 24 is an appeal by way of rehearing (see Poulet Frais Pty Ltd v The Silver Fox Company Pty Ltd (2005) 220 ALR 211 at [35]‑[47]).  The subject matter of an appeal under s 44(1) of the AAT Act is (shorn of the requirement to determine what, if any, entitlement to relief flows from the answer to the question or questions of law) of the same character as the subject matter of a reference of a question of law to the Court made under s 45 of the AAT Act.

    15. In Birdseye Stone J and I also expressed approval of the observation of Ryan J in Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 527 that:

    ‘If the question, properly analysed, is not a question of law no amount of formulary like “erred in law” or “was open as a matter of law” can make it into a question of law.’

    16. A mixed question of fact and law is not a question of law within the meaning of s 44(1) of the AAT Act.  Stone J and I observed in Birdseye at [18]:

    ‘In our view, O 53 r 3(2) discloses an intention that a question of law to be raised on an appeal from the Tribunal should be stated with precision as a pure question of law.  It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal.’

    17. Although recent amendments to s 44 of the AAT Act have given the Federal Court limited powers to make findings of fact (see s 44(7)‑(10)), this is a power available to be exercised after the Court has given consideration to the questions of law which constitute the subject matter of the appeal.  If the answers to those questions, or any of them, lead to relief being granted to the applicant, the limited power to find facts which is vested in the Court by s 44(7) may be exercised, where it is convenient to do so having regard to the factors identified in the subsection, to avoid the need for the matter to be remitted to the Tribunal for further consideration.

    8. In Birdseye v Australian Securities and Investment Commission [2003] FCAFC 232, Branson and Stone JJ said:

    13. In Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524 Ryan J said:

    ‘I do not regard it as legitimate to call in aid the grounds supplied in purported compliance with O 53, r 3(2)(d) to read down the questions stated as required by paragraph (b) to what are truly questions of law. Because the appeal under s 44 of the AAT Act is confined to a question of law it would be inappropriate for the Rules to specify as part of the contents of a notice of appeal "grounds" which would be appropriate if the appeal could be brought against findings of fact as well as against what are said to be errors of law; cp O 52, r 13(2)(b) which requires a notice of appeal of that wider kind to state "briefly, but specifically, the grounds relied upon in support of the appeal". The distinction is recognized by O 53, r 3(2)(d) which requires the notice of appeal under the AAT Act to state only "the grounds relied upon in support of the order sought".  In the present case the order sought is that "the Decision of the Tribunal be set aside". Grounds in support of that order would properly assume the resolution of the question of law in favour of the applicant and indicate in a summary way the reasons why that resolution requires the decision of the AAT to be set aside. Of necessity, properly drawn grounds of that kind could not elucidate the question of law.’

    14. His Honour went on at 524 to indicate his view that merely to assert that the Tribunal had erred in law in making a particular finding was not to state a question of law.

    15. Further, his Honour at 527 expressed the view that:

    `... it simply begs the question of law to commence it with the words "Whether the Tribunal erred in law."  If the question, properly analysed, is not a question of law no amount of formulary like "erred in law" or "was open as a matter of law" can make it into a question of law.'

    16. We express our respectful agreement with the above observations of Gummow and Ryan JJ respectively.

    17. A number of well known authorities has considered the distinction between a question of law and a question of fact (see, for example, Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 (FC); Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389). However, very limited consideration has been given to how a question of law ought properly to be stated in a notice of appeal from a decision of the Tribunal having regard to the requirements imposed by O 53 r 3(2).  Those requirements include that the questions of law raised by the appeal are to be stated separately from the grounds relied upon in support of the order sought on the appeal.

    18. In our view, O 53 r 3(2) discloses an intention that a question of law to be raised on an appeal from the Tribunal should be stated with precision as a pure question of law.  It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal. It is not necessary in this case to give consideration to questions such as whether an allegation of denial of natural justice can give rise to a question of law so as to found an appeal under s 44(1) of the AAT Act (see Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 esp per Gray ACJ and North J at [3]-[8] and Gyles J at [58]-[67]) and if it can, how the question of law should be stated.

    see also Hussain v Minister for Foreign Affairs (2008) 169 FCR 241.”

13. Properly viewed each of the claimed grounds uses a formulaic description, such as the Tribunal misinformed itself and erred in law or simply that the Tribunal erred in law, but in my view there is no question of law which has arisen, actually stated.

14. As was said in Comcare v Etheridge [2006] FCAFC 27 at 16, the question of law to be raised on an appeal should be stated with precision as a pure question of law.

15. In taking submission from the appellant who was unrepresented, it became apparent that she was seeking to formulate the required question of law along the lines that the Tribunal ignored material relevant to its decision or so misinformed itself that such action enlivened the jurisdiction under s.110B of the Act.

16. It appears to me that each of the grounds raise questions of fact and even if they are mixed with questions of law, such questions in that form do not meet the requirements of s.110B or trigger the Court's jurisdiction to hear the appeal.

17. I think it fair to state that the appellant is basing what she states are questions of law upon the issues or description given by Brown FM in Tasman & Tisdall (SSAT Appeal) [2010] FMCAfam 425 at 84 to 90:

    “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:

    ·    fails to construe properly the legislative provisions applicable;

    ·    identifies the wrong issues or asks itself the wrong questions;

    ·    ignores relevant material or relies on irrelevant material;

    ·    fails to accord procedural fairness to the party before it;

    ·    makes an erroneous finding of such a magnitude that it goes to the very jurisdiction which it purports to exercise rendering its decision perverse or unreasonable or otherwise offending logic.”

18. I gather that is what the appellant really seeks to apply – because her submissions were to the effect that misinforming itself and failing to take into account relevant material was such a factual type of error, of such proportion, that they ought be considered errors of law.

19. In submission orally, and I will point out that the appellant filed an affidavit and handed up further written submissions, all of which I take to be mere submissions because there was no leave sought to admit new evidence, the appellant said that her whole case before the Tribunal went to the respondent father’s capacity to pay child support.

20. In particular as to ground one she submitted that the “three criteria” of s.117 of the Child Support (Assessment) Act 1989, being subsections (a), (b) and (c), were not referred to in the Tribunal decision and that the Tribunal ignored correspondence she had sent dated 12 May 2011, to the Child Support Agency, which went to issues such as to the respondent’s capacity to earn income.

21. Section 117 addresses matters the Tribunal must take into account in order to come to a departure decision. It is a complex section, addressing numerous issues and must be addressed by the decision-maker.

22. The appellant said that the Tribunal misinformed itself can be seen at paragraph 37 of its reasons where it said the respondent was working casually.

23. As support for her appeal, the appellant also said that she had attended at the subpoena office of the Commonwealth Law Courts to look at the documents supplied by the Tribunal pursuant to s.110K of the Act, those documents being supplied for the purposes of the appeal.

24. She submitted that these were the documents before the Tribunal for the hearing, but that is incorrect because the decision itself at paragraph 8 of the reasons lists those documents which were supplied by the parties and which were taken into account in order for the Tribunal to make its decision.

25. Section 110K states:

    “s.110K Sending of documents to, and disclosure of documents by, the court

    When an appeal is instituted in a court, or a question of law is referred to a court, under this Division, the SSAT Principal Member must cause to be sent to the court all documents:

    (a)  that were before the SSAT in relation to the review to which the appeal or the reference relates; and

    (b) that are relevant to the appeal or the reference.”

26. It is important to identify that the relevant documents provided by the Principal Member of the Tribunal to the court pursuant to the section has a covering letter referring to documents believed by the Tribunal to be relevant to the appeal.

27. In pursuing the submission that the documents supplied pursuant to s.110K, the appellant said it was clear that letters and correspondence she had referred to which put her case as against the respondent’s case in the child support matter, were not supplied to the Tribunal and so could not have been considered.

28. I stress that that was and is an incorrect view of the purpose of the s.110K. The purpose is to supply documents to the court for the appeal which are relevant to the appeal. If there is an issue pertaining to the question of law to be identified from the documents, then the appellant has failed to identify the issue. What she identifies is what must be a mere question of fact, which is not the subject matter of an appeal under s.110B. It is also incorrect to claim that the documents were not supplied to the Tribunal, because the section does not require all such documents to be delivered to the Tribunal. The onus is on the parties to supply the relevant documents and paragraph 8 of the reasons list the documents considered. Paragraph 8 refers to material supplied by the appellant which I imagine from the reference was a bundle of documents within the documents accepted as exhibit B before it. Further, the appellant does not explain why some letters she wrote go to proof of anything she claims about the husband's capacity to earn income. If it was proving this part of her claim, then they would have been relevant materials which she should have supplied to the Tribunal at the relevant time.

29. In fact, the appellant not only said her correspondence was not in the s.110K documents supplied, but her bank statements were not included either.

30. Again, I stress that both parties supplied material to the Tribunal and the Tribunal clearly stated at paragraph 8 what it relied upon to make its decision, including not only the oral submissions of the appellant but her written documents as well. If, as she states, her case always went to the capacity of the respondent then if there is a question of law arising on that issue, she must identify such a question.

31. The affidavit and the written submissions of the appellant for the most part went to factual argument and reiterated arguments which no doubt she put before the Tribunal.

32. But returning to what was said in Tasman & Tisdall, there needs to be an assessment of what the appellant says were errors such as the Tribunal misinforming itself or not relying on relevant material or that it did not rely properly on, or to put it another way, apply s.117 of the Act to the matter before it.

1. She did not improve upon her submissions that each of those acts amounted to errors of such a nature that a question of law was raised enabling a decision on an appeal in her favour.

2. The respondent father opposed the appeal.

3. He was not represented and relied and supported the reasoning of the Child Support Registrar who is the Second Respondent.

4. In written and oral submissions, Mr B for the Child Support Registrar, said in the particular reasons the Tribunal set out the legislative framework and correctly summarised the issues it had to determine as being (the figures referring to Mr B's paragraphs):

   “12.1 whether one, or more than one, of the grounds for departure referred to in subsection 117(2) of the Act exists; and

   12.2 whether it would be:

   12.2.1 just and equitable as regards the child, the liable parent, and the carer entitled to child support; and

   12.2.2 otherwise proper

   to make a particular determination to depart from the administrative assessment of child support.”

5. Mr B said the reasons considered whether the special circumstances required for a departure application were considered and that the Tribunal considered income, property and financial circumstances of the respondent father.

6. All of that can be seen when I read the reasons.

7. The first seven paragraphs of the decision identifies administrative assessments for child support for certain dates, that on 16 May 2011 the appellant applied for a departure from administrative assessment, that on 24 June 2011 the respondent father’s adjusted taxable income was set at $67,000 and that on 22 December 2011 an objection officer disallowed the respondent father’s objection.

8. He applied to the Tribunal to have the objecting officer's decision reviewed on 16 January 2012.

9. Under a heading “The legislative framework” from paragraphs 10 to 13, the Tribunal refers to what it must consider under the legislation and there was no challenge except to the considerations under s.117, wherein the appellant stated that the three tests at ss.117(a), (b) & (c) were not applied.

10. Under a heading “Grounds for departure” and in particular at paragraph 15, the Tribunal does consider special circumstances and refers to the case of Gyselman & Gyselman (1992) FLC 92-279 and that authority's statement defining, as far as it can be defined, what special circumstances are.

11. Gyselman is the constant authority which both the Tribunal and the courts return to when examining departure applications so there is no useful claim the appellant can make that such was not properly determined.

12. The decision goes on to refer to the evidence of the respondent’s work as a (omitted). Particularly, it examined medical documents he produced, including a letter from an orthopaedic surgeon dated 28 February 2011 which referred to his lumbar spine problems and that it would be worthwhile for him to look at performing lighter type activity. The decision records that by 9 June 2011, the same orthopaedic surgeon in correspondence stated that the respondent father had chronic back pain and right thigh pain due to degenerative lumbar disease. In particular, at paragraph 22, after the appellant questioned the validity of a letter written by the orthopaedic surgeon, the Tribunal confirmed that it was satisfied that the particular orthopaedic surgeon was the author of the opinion in the correspondence because it confirmed it with the doctor's surgery. That appears to me to be factually assessing the appellant's claims going to the father's capacity to work.

13. The decision records the appellant’s submissions that the respondent father had a full time job in Brisbane but that he quit and that she thought he was working casually and that he was just stubborn and not putting the children first with regards to child support.

14. The decision records that the appellant accepted that the respondent had medical problems relating to his back (lumbar spine) but she insisted he could still work four to five days a week.

15. On that reasoning apparent in the decision, I accept that the appellant ran her case before the Tribunal upon the respondent’s capacity, which is clearly recorded in the decision, and the Tribunal’s finding for the respondent’s case has caused the appeal on the alleged questions of law.

16. The appellant said that one of the examples of the Tribunal misinforming itself could be seen at paragraph 30 because the Tribunal said there that she did not take any issue with the respondent’s taxable income.

17. Her submission to me was that she was not asked about that, but such misinterprets what was said. It further misses an important point and that is that whatever her case was, there is a decision which records her case which questions the respondent's capacity to work and a decision she does not agree with.

18. The appellant questioned the finding that the respondent’s taxable incomes represented the income that he actually has had available to him at the times in question.

19. All of this, in my view, goes to factual issues or findings of fact which are not open to be raised as questions of law under s.110B of the Act, in the manner presented by the appellant.

20. Further, the appellant kept repeating that her case was always on the respondent’s capacity to earn income and not his actual income and this is where she says the Tribunal erred.

21. I do not see how she can maintain that argument.

22. Paragraph 36 of the decision clearly refers to the appellant’s case about capacity and clearly refers to s.117(7B) and the three tests as the appellant referred to them.

23. The language used by the Tribunal at paragraph 36, identifying the appellant’s case before it, was simple, clear and unambiguous and reads as follows:

    “36. The real issue relates to Mr Weston’s earning capacity. Subsection 117(7B) of the Act outlines three criteria that must be satisfied before a parent’s earning capacity can be determined to be greater than is reflected in his or her income for the purposes of child support. That paragraph states:

    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:

    (ii) the parent does not work despite ample opportunity to do so;

    (ii) the parent has reduced the number of hours per week of his or her employment or other work below the normal hours per week that constitutes full-time work for the occupation or industry in which the parent is employed or otherwise engaged;

    (iii) the parent has changed his or her occupation, industry or working pattern; and

    (b) the parent’s decision not to work, to reduce the number of hours, or to change his or her occupation, industry or working pattern, is not justified on the basis of:

    (i) the parent’s caring responsibilities; or

    (ii) the parent’s state of health; and

    (c) the parent has not demonstrated that it was not a major purpose of that decision to affect the administrative assessment of child support in relation to the child.”

24. The submissions of the Registrar was to the effect that each ground stated by the appellant was really nothing more than an attempt to disturb the findings of fact made by the Tribunal and no questions of law were raised.

25. Mr B referred me to cases in line with those cases I referred to at the beginning of this judgment, in particular he referred to Halligan FM’s statement in LDME & JMA (SSAT Appeal) [2007] FMCAfam 712:

    “23. The meaning of an “appeal, on a question of law” has been considered in many appeals under s.44 of the AAT Act, as has the need for an appellant in a section 44 appeal to articulate a question or questions that are in reality questions of law, and the connection between the question of law and the orders sought.  While these decisions are relevant, care needs to be taken in applying some of those decisions to s.110B appeals to recognise relevant differences in the procedural requirements for s.44 and s.110B appeals.”

26. He also referred to Australian Postal Corporation v Hughes [2009] FCA 1057; 50 AAR 267 where Flick J said:

    “The existence of a question of law is not merely a qualifying condition to ground an appeal from a decision of the Tribunal; rather it and it alone is the subject matter of the appeal, and the ambit of the appeal is confined to it.”

27. Further, Mr B went on to say that the merits of the case were to be dealt with by the Tribunal and not by the court and in that regard, he referred me to the High Court’s decision in Repatriation Commission v Owens (1996) 70 ALJR 904, where the observation was made that: “distribution of function is critical to the correct operation of the administrative review process”.

28. As to the grounds, Mr B said of ground one it could not be said that the Tribunal ignored relevant material.

29. And he said whether the Tribunal failed to give proper consideration to the material or gave it undue or excessive weight or such to particular evidence or whether the evidence was capable of supporting the conclusions were not questions of law but were in fact questions of fact.

30. On applying the tenet of law which I have referred to, I accept that.

31. In ground one the appellant complains that she did not take issue with the respondent’s taxable income representing the income he actually has and I have already referred to paragraph 30 of the decision and stated why the claim of the appellant is misconceived.

32. As to ground two and the capacity to earn, the appellant's ground is somewhat difficult to understand. In her submissions she points out what she states is an error of fact because she provided evidence she said was contrary to the finding. That in itself is not an error of law, but in any case, the Tribunal was entitled to consider the evidence of both parties, which it did, and come to a conclusion, which it did.

33. The appellant also claimed the respondent reduced his work, or his work pattern, only to avoid child support.

34. There is just no evidence to support that factual contention and no argument to show that a question of law arises.

35. The Registrar submits, in line with what Reithmuller FM said in Waites & Lawson (SSAT Appeal) [2011] FMCAfam 42 that:

    “17. Careful consideration needs to be given to the use of the terms ‘work’ and ‘working pattern’ in the section.  In the context of this section work cannot simply mean application of labour or effort, such as working on one’s golf swing or in one’s flower bed.  Rather the term refers to the application of one’s labour or efforts toward generating an income.”

36. I accept that statement is applicable to this matter and that the father had reason to change his work pattern, his doctor's advice was that lighter duties would improve his degenerating lumbar spine.

37. As to ground three which really alleged some change in circumstances, which may be examined pursuant to s.117(7B), I have already referred to some evidence which the appellant referred to claiming the Tribunal ignored information before it which she said was relevant. The appellant claimed the respondent moved from Brisbane to the Sunshine Coast and this was an excuse for him to reduce his capacity to earn income. This ground is in a sense related to ground 2 above.

38. While it may be a wrong finding of fact, although that does not really seem to be apparent on the materials before me, there is just no attempt to formulate the question of law which the appellant urges upon me.

39. Importantly, I cannot see on the submissions that a wrong question was asked or relevant material ignored or a finding of fact was such that it should not be allowed to stand because it should be considered a question of law.

40. Mr B said that the Tribunal found that there was only one event that satisfied s.117(7B)(a) and having made that finding of fact, it did ask itself the correct question being whether ss.117(7B)(b) & (c) were satisfied in relation to the event.

41. The reasons come to a conclusion, the conclusion being that the father's reduced amount of work after his move was all that he could do. Paragraph 17 to 24 shows adequate consideration of a range of issues affecting the father's work capacity, but particularly the references and reliance on the doctor's report about the progression of his degenerative lumbar disease. It is clear that the father's move from paid employment in Brisbane to part-time work on the Sunshine Coast was examined in conjunction with, not only personal family issues, but more importantly, in light of the doctor's reports about his lumbar spine.

42. While each and every clause of s.117 has not been referred to, the Tribunal has considered the effects of the relevant parts of the section against the evidence of the parties.

43. It is clear from the written reasons that the appellant used what may be referred to as a scattergun approach to try and persuade the Tribunal that the respondent’s income was more than he actually received. I have referred to her questioning of the validity of a doctor's letter which the respondent relied on. But also apparent in the material is that she raised questions as to whether the respondent was using his mother’s bank account to hide income and whether he claimed equipment he purchased for use on his mother’s farm as a tax deduction and other questions about his financial status, but the Tribunal found there was no evidence to substantiate any of these claims. I mention that for this reason and for this reason only, in this appeal the appellant constantly returned to factual issues or issues she believes factual, including that the Tribunal misinformed itself or failed to take into account relevant material. That relevant material is said to be relevant by the appellant to her case and it was obviously challenged by the respondent and considered by the Tribunal.

44. The Tribunal's written reasons follow the requirements of the Act in s.103X(3)(b). The reasons for the decisions are set out, as are findings on material questions of fact and it has referred to the evidence or other material on which the findings of fact are based. Keeping in mind that one does not go through these decisions with an eye to error, the Tribunal in carrying out its administrative function has properly carried out its administrative function.

45. The appeal then must be dismissed.

I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Judge Coates

Date:  28 June 2013