In Baylden & Anor [2015] FCCA 2886 (29 October 2015) Judge Scarlett heard the father’s appeal against an SSAT decision on a number of grounds, one of which was that the SSAT had made an erroneous finding of such magnitude that “its decision [was] unreasonable and/or an offence to logic” ([35]). The Child Support Registrar contended that this ground was not an error of law but an impermissible attack on the merits of the decision. The father was self-employed and received $15,000 a month by way of repayment of loans to him under a loan agreement, the Child Support Registrar setting the father’s income to reflect the father’s receipt of loans as a departure from the child support assessment, which was upheld by the SSAT.
The Court said (at [23]):
“The Tribunal found at paragraph [20] of its decision:
‘Given the terms of the loan agreement the Tribunal finds that Mr Baylden has an annual resource under the terms of that loan of $180,000 per annum tax free, or $287,000 grossed up (that is net income of $180,000, taxes of $107,002 including the Medicare levy of $4,305 […]Whilst the Tribunal appreciates that Mr Baylden does not receive $287,000 he does get a net financial benefit from his association with (business omitted) which would require gross earnings of $287,000. While the loan agreement may be acceptable for the Commissioner of Taxation, the benefits under that loan have a different treatment for the purposes of the child support. It cannot be ignored that Mr Baylden is receiving $15,000 per month under a “loan” yet not receiving wages, despite being responsible for the day to day operation of (business omitted), a company that has grown from 2 employees to now over 10 in less than 12 months. The evidence that Mr Baylden cannot be paid a salary from (business omitted) whilst it is in its growth stages is unconvincing, especially given that he now employs 10 staff, that the turnover of the company as evidenced by its GST liability appears to be in the vicinity of $2 million per annum, and further the company is able to make payments to Mr Baylden under the loan with no pressure to repay.’
The Court continued (from [53]):
“… [Counsel for the Child Support Registrar] submitted that Ground 2(a) should be dismissed because the Tribunal was entitled to find from the Appellant’s evidence at the hearing that he received $15,000 per month from (business omitted). ( … )
( … )
[57] [Counsel for the Child Support Registrar] argued that it was reasonable for the Tribunal to find that the money received under the Agreement was a financial resource, as it was clearly a financial benefit that enhanced the Appellant’s capacity to provide a proper level of financial support for his children.”
When concluding as to whether the SSAT’s decision was “unreasonable” to the extent of being an error of law, the Court said (from [97]):
“… This ground is clearly based on one of the grounds set out in Tasman & Tisdall (SSAT Appeal) [[2010] FMCAfam 425] … However, as Counsel for the Child Support Registrar submitted, there is no error of law in making a wrong finding of fact, nor will a perverse finding of fact vitiate a decision of the Tribunal in an appeal on a question of law.
[98] [Counsel for the Child Support Registrar] also submitted that in Baranski v Comcare [(2013) 296 ALR 438] the Federal Court has cast doubt as to whether ‘unreasonableness’ has any room to operate in appeals on questions of law.
[99] In Baranski, the third ground of appeal was based on unreasonableness:
‘3. Was the tribunal’s decision reviewable for Wednesbury unreasonableness, that is, was the decision so unreasonable that no reasonable decision-maker could have reached it (Associated Provincial Picture Houses Limited v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 at 230)? ‘
[100] In dealing with that ground, Katzmann J, with whom Allsop CJ and Tracey J agreed, held at [19]
‘It follows that the third and final ground of appeal must also fail. 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…the error is not of this kind. The tribunal’s decision was not unreasonable, let alone so unreasonable that no reasonable decision-maker could have reached it…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.’
[101] I am satisfied that Ground 2 does not rise to a question of law. I am not of the view that the Tribunal decision was unreasonable, let alone Wednesbury unreasonable. I agree with the submission that the Tribunal was entitled to find from the Appellant’s evidence at the hearing that he received $15,000.00 per month from (business omitted).
[102] Grounds 2(b) and 2(c) are, to my mind, a cavilling at the Tribunal’s assessment of the Appellant’s financial resources. ( … )
[103] I am not satisfied that it was unreasonable of the Tribunal to make the finding that it did, which was that the Appellant’s annual income and financial resources should be used in the child support formula set out in the Child Support (Assessment) Act until 31 December 2014.”
The father’s appeal was dismissed.