Ade23 v Adg23

[2023] FedCFamC2G 869

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

ADE23 v ADG23 [2023] FedCFamC2G 869  

File number(s):

BRG 21 of 2023

Judgment of:

JUDGE L. TURNER

Date of judgment:

29 September 2023

Catchwords:

 CHILD SUPPORT- Appeal – Notice of appeal inadequate – Appeal dismissed – Costs reserved pending written submissions  

Legislation:

 Administrative Appeals Tribunal Act 1975 (Cth)

Cases cited:

 BVG17 v BVH17 (2019) 268 FCR 448

Child Support Registrar & Crowley and Anor [2015] FamCAFC 76

Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280

Haritos v Commissioner of Taxation (2015) 233 FCR 315

HGMZ v Secretary, Department of Social Services [2012] FCA 280

Division:

Division 2 General Federal Law

Number of paragraphs:

24

Date of last submission/s:

11 July 2023

Date of hearing:

11 July 2023

Place:

Brisbane

Applicant:

Applicant appeared in person

First Respondent:

First Respondent appeared in person

Solicitor for the Second Respondent:

Mr West of Mills Oakley

Solicitor for the Third Respondent:

Mr Christopher Matthies of the Administrative Appeals Tribunal (no appearance)

ORDERS

BRG 21 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

ADE23

Applicant

AND:

ADG23

First Respondent

CHILD SUPPORT REGISTRAR

Second Respondent

ADMININSTRATIVE APPEALS TRIBUNAL

Third Respondent

ORDER MADE BY:	JUDGE L. TURNER
DATE OF ORDER:	29 SEPTEMBER 2023

THE COURT ORDERS THAT:

1.The Notice of Appeal, as to the first review decision of the Administrative Appeals Tribunal made on 2 December 2022, filed by the Applicant on 16 January 2023, is hereby dismissed.

2.Within fourteen (14) days from the date hereof the Second Respondent and the Third Respondent file and serve short written submissions as to fixed costs.

3.Within twenty-eight (28) days from the date hereof the Applicant file and serve short written submissions in reply.

4.Judgment in respect to costs of the Second Respondent and the Third Respondent is hereby reserved.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

Section 110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in child support review proceedings.
IT IS NOTED that publication of this judgment under a pseudonym is approved pursuant to s 110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).

REASONS FOR JUDGMENT

JUDGE L. TURNER:

INTRODUCTION

1. On 16 January 2023 the applicant filed a Notice of Appeal in regard to a decision made by the Administrative Appeals Tribunal (AAT) on 2 December 2022.

2. In the Notice of Appeal the applicant sought the following order:

   The annual amount of child support of $0.00 payable by [ADE23] to [ADG23].

3. In the Notice of Appeal, the applicant set out the following three questions of law:

   1.The gross income from university scholarship is 28,756 which should not be considered as an income because it is not a taxable income.

   2.All other incomes are $3,000 from Centrelink and $2,660 self employed

   3.How does the assessor considered them to be $7,500 and $8,159 respectively?

4. In the Notice of Appeal, the applicant set out three grounds of appeal:

   1.Tax return statement.

   2.Child support assessment reports.

   3.Bank statements, Centrelink statements etc….

5. On 3 April 2023 leave was given to the applicant to file an Amended Notice of Appeal and the matter was set down for one (1) day hearing on 11 July 2023.

6. The applicant did not file an Amended Notice of Appeal.

7. The matter proceeded to a hearing of the appeal on 11 July 2023 where the applicant (the father) and the first respondent (the mother) were self-represented.

8. The second respondent (child support registrar) was legally represented.

9. The third respondent (Administrative Appeals Tribunal) did not attend.

10. Before considering the appeal it is necessary to look at a party’s right to appeal.

    RIGHT TO APPEAL

11. This is an appeal from the decision of the AAT dated 2 December 2022 in review number … pursuant to section 44AAA Administrative Appeals Tribunal Act 1975.

12. Section 44AAA(1) allows a party to appeal to the Federal Circuit and Family Court of Australia (Division 2) on a question of law from any decision of the AAT.

13. As stated in BVG17 v BVH17 (2019) 268 FCR 448 and HGMZ v Secretary, Department of Social Services [2012] FCA 280, the court in determining such an appeal is exercising original jurisdiction limited to issues on a question of law only as an appeal does not constitute a rehearing of the matter on its merits.

14. The Full Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 stated that the nature of the task of the court is clear; namely to leave to the tribunal fact decisions as to facts and to only interfere where the identified error is one of law.

15. In order for the appeal to be considered on a question of law, the question of law must, according to Haritos v Commissioner of Taxation (2015) 233 FCR 315, be stated with sufficient precision.

16. The applicant exercised his right of appeal by filing the Notice of Appeal in February 2023.

17. It was ordered in April 2023 that the applicant have leave to file an Amended Notice of Appeal as the originating Notice of Appeal was inadequate.

18. The applicant failed to do so and I find that the questions of law in the originating Notice of Appeal have not been stated with sufficient precision.

19. The Full Court in Child Support Registrar & Crowley and Anor [2015] FamCAFC 76 at [24] notes that:

    A consequence of the confined nature of appeals from the Tribunal to the FCCA is a requirement that the grounds of appeal to that court be drawn with particular precision and with a precision which bears that restriction firmly in mind.    

20. Further I find that the grounds of appeal are nonsensical.

21. As a consequence I have no choice but to dismiss the appeal as it is not possible to consider the Notice of Appeal it is current state.

22. Costs have been incurred by the second respondent and the third respondent and accordingly directions have been made for the filing of cost submissions by the applicant and the second respondent and third respondents.

23. Directions have not included the first respondent as the mother was a self-represented litigant

24. Otherwise judgment as to costs is hereby reserved.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge L. Turner.

Associate:

Dated:       27 September 2023