AEF23 v Child Support Registrar
[2023] FCA 758
•5 July 2023
FEDERAL COURT OF AUSTRALIA
AEF23 v Child Support Registrar [2023] FCA 758
Appeal from: Decision of the Administrative Appeals Tribunal dated 14 December 2022 File number(s): NSD 37 of 2023 Judgment of: JACKMAN J Date of judgment: 5 July 2023 Catchwords: FAMILY LAW AND CHILD WELFARE – appeal from review decision of the Administrative Appeals Tribunal (Tribunal) of objection decision of the Child Support Registrar concerning annual rate of child support – whether the Tribunal denied the applicant procedural fairness – whether the Tribunal conducted its review fairly and reasonably – Tribunal not under any duty to inquire in the circumstances – appeal dismissed Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44
Child Support (Assessment) Act 1989 (Cth) ss 98C, 117
Cases cited: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 25 Date of hearing: 3 July 2023 Counsel for the Applicant: The Applicant was self-represented. Solicitor for the First Respondent: Mr T Hillyard of Sparke Helmore ORDERS
NSD 37 of 2023 BETWEEN: AEF23
Applicant
AND: CHILD SUPPORT REGISTRAR
First Respondent
AEG23
Second Respondent
ORDER MADE BY:
JACKMAN J
DATE OF ORDER:
5 JULY 2023
THE COURT ORDERS THAT:
1.The amended notice of appeal be dismissed.
2.The applicant pay the respondents’ costs of the application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
JACKMAN J
Introduction
By an amended notice of appeal filed on 31 March 2023, the applicant seeks review of a decision of the Administrative Appeals Tribunal (Social Services and Child Support Division) (Tribunal). By that decision, the Tribunal set aside a decision of an objections officer of the first respondent (CSR) and substituted a decision that the applicant’s child support liability be varied to $30,000 per annum from 3 June 2020 to 5 December 2022.
An appeal to this Court on a question of law is available under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).
The applicant and second respondent (mother) are the separated parents of three children currently the subject of an administrative assessment (with dates of birth of 19 September 2009, 20 November 2012 and 4 June 2015, respectively). They were first registered on 14 March 2016, with the mother providing 93% of the children’s care and the applicant providing the remaining 7%.
On 3 June 2020, the applicant lodged an application for departure from the administrative assessment under Pt 6A of the Child Support (Assessment) Act 1989 (Cth) (Assessment Act). At that time, the applicant was required to pay child support as follows:
For the period 5 May 2020 to 16 August 2020, the Fixed Annual Rate of $2,166 applies. An income of $0 is used for [AEF23], and an income of $63,883 for [AEG23]. Both parents’ incomes are as reported by the Australian Taxation Office (ATO) for 2018-19.
For the period 17 August 2020 to 30 September 2020, the Fixed Annual Rate of $3,246 applies. The incomes above are used for the parents.
For the period 1 October 2020 to 31 December 2021, the Minimum Annual Rate of $443 applies. An income of $2,000 is used for [AEF23], and an income of $52,271 for [AEG23]. Both parents’ income are as reported by the ATO for 2019-20.
On 17 December 2021, a delegate of the CSR varied the applicant’s annual rate of child support to $27,621 for the period 1 November 2021 to 31 October 2023. The applicant objected on 20 January 2021 and, on 6 April 2022, a delegate of the CSR allowed the objection in part, varying the applicant’s annual rate of child support to $28,425 for the period 1 November 2021 to 30 June 2022.
The Tribunal’s decision
On 20 April 2022, the applicant applied to the Tribunal for review of the objection decision. On 14 December 2022, the Tribunal held a hearing, which both the applicant and mother attended. On the same day, the Tribunal made the decision that is the subject of these proceedings, in which the Tribunal set aside the objection decision and substituted a decision that the applicant’s child support liability be varied to $30,000 per annum for the period 3 June 2020 to 5 December 2022.
In the Tribunal’s reasons, after setting out the procedural history of the matter, the Tribunal identified that, as provided for by s 98C of the Assessment Act, the issues before it were:
(a)whether one, or more than one, of the grounds for departure referred to in s 117(2) of the Assessment Act existed; and
(b)whether departure from the administrative assessment would be:
(i)just and equitable as regards the child, the liable parent, and the carer entitled to child support; and
(ii)otherwise proper.
The Tribunal identified that the central issue in the matter is whether the administrative assessment accurately reflected the applicant’s income, financial resources and earning capacity. The Tribunal recorded that at the time the father lodged his departure application, he was liable to pay the fixed annual rate of $2,166 in child support, based on the parents’ 2019 adjusted taxable incomes of $0 and $63,883 respectively: [15].
The Tribunal found that the applicant had entered into a contract with the Government of Tuvalu in March 2021 with a total maximum payment of US$360,000: [20]. The Tribunal recorded the applicant’s evidence that his contract with the Government of Tuvalu had not proceeded and that he had no recollection of seeking or receiving payment in respect of the contract: [17]-[20]. However, the Tribunal referred to AUSTRAC materials provided on behalf of the CSR which showed several transfers of money to the applicant: [21]-[24]. These included a transfer on 31 March 2020 of $235,715 from an account in the name of one of the applicant’s aliases to another of his accounts.
The Tribunal did not accept the applicant’s evidence that deposits totalling $94,715 were from his son, in the absence of corroborating evidence. In any event, the Tribunal found that even if the deposits were from the applicant’s son, they were a financial resource available to the applicant: [22]. The Tribunal recorded the applicant’s evidence in respect of a number of deposits made into various accounts in his name or under aliases: [23]-[27].
Having considered the applicant’s evidence, the Tribunal concluded that he was not a witness of credit: [28]. It referred to the applicant having denied the existence of the contract with the Government of Tuvalu to the Child Support Agency, while simultaneously corresponding with the Government of Tuvalu about the same contract. It found that the applicant had “no apparent discomfort in making a false statement to this Tribunal” and referred to a series of incidents that occurred during the hearing where the applicant repeatedly assured the Tribunal he was somewhere private where he could not be overheard, which was not true. The Tribunal found the applicant’s evidence to be “generally inconsistent, implausible and largely self-serving”: [28]. Accordingly, the Tribunal gave little weight to the applicant’s testimony and instead preferred the financial evidence before it: [28].
On the basis of that evidence, and in the absence of a full and frank disclosure by the applicant of his financial circumstances, the Tribunal found that the applicant’s income and financial resources were not properly reflected in the administrative assessment. Accordingly, the Tribunal found that there were special circumstances such that the application of the administrative assessment would result in an unjust and inequitable determination of child support payable. It therefore concluded that a ground for departure existed pursuant to s 117(2)(c)(ia) of the Assessment Act, satisfying s 98C(1)(b)(i).
As to whether departure from the administrative assessment would be “just and equitable” within the meaning of s 98C(1)(b)(ii)(A) of the Assessment Act, the Tribunal recorded that the mother earned $2,940 gross per week from her three jobs with an adjusted taxable income of $103,952 and $122,861 in 2021 and 2022 respectively. It found that there was nothing to suggest that the mother’s income and financial resources were not accurately reflected in the administrative assessment: [33].
The Tribunal noted the difficulty in ascertaining the applicant’s income and financial resources with precision, given his lack of credibility: [38]. The Tribunal found that the deposits made into the applicant’s accounts indicated that he had capacity to meet $30,000 of the children’s costs per annum and it was just and proper that he do so: [38]. It found that it was appropriate for the assessment to begin from 3 June 2020, being the date of the departure application, and end on 5 December 2022, being the date on which the child support assessment was ended by the mother: [37]-[38]. The Tribunal found that the administrative assessment before it was unfair, given the applicant’s financial resources and, accordingly, it was just and equitable to depart from the administrative assessment: [40].
As to the question whether departure from the administrative assessment would be “otherwise proper” within the meaning of s 98C(1)(b)(ii)(B) of the Assessment Act, the Tribunal found that parents have the primary duty to maintain a child, rather than the community doing so: [41]. The Tribunal found that the mother was not in receipt of income-tested benefits and that departing from the administrative assessment would have no impact on the apportionment of financial responsibility between the parents and the community, and that the decision was otherwise proper: [41]-[43].
The applicant’s appeal
The amended notice of appeal filed in this Court identifies the following purported questions of law (and I set them out verbatim without correcting the grammar):
1.That Procedural Fairness was not given to the Applicant
That the presiding Member of the AAT did not follow correct procedures in allowing an adjournment because of the Applicants ill health
The members decision was Wrong, Unreasonable, Biased, and Unfair, in the way that she went about conducting the proceedings.
2.The hearing was conducted in an unfair manner. The decision was not arrived at correctly or the process of getting to that decision was wrong by reason of unfairness.
3.The the presiding Member did not allow for the fact that the Applicant is profoundly deaf in his right ear and has 10% hearing in his left ear.
4.There is a duty by the AAT to review. The AAT did not make obvious enquiries and avail itself of facts and therefore failed to review. This failure to avail itself of the facts and consequently to review, gives rise to a jurisdictional error by constructive failure to exercise jurisdiction.
5.That the presiding Member incorrectly interpreted a Statute relevant to the proceedings. The AAT did not have the authority to vary the period of liability for Child Support
6.That the presiding member was biased in favour of the second Respondent as was evident by questioning and manner.
Although not expressed as questions, I am prepared to treat them as such by replacing the opening word “That” with “Whether”. However, they are not proper questions of law. The purported questions of law are developed by way of twenty grounds of review. Those grounds of review make clear that the applicant’s true complaint concerns the merits of the Tribunal’s decision, which play no part in this Court’s jurisdiction under s 44 of the AAT Act.
However, the CSR accepts that, when read beneficially and in light of the grounds, the amended notice of appeal identifies two questions of law to the following effect:
(a)Did the Tribunal deny the applicant procedural fairness?
(b)Did the Tribunal discharge its function of review fairly and reasonably?
I am prepared to proceed on the basis of that concession, which seems to me to be properly made.
Denial of procedural fairness
Dealing first with the alleged denial of procedural fairness, the first proposed question of law and Grounds 5-9 allege that the applicant was denied procedural fairness due to the manner in which the hearing was conducted. The applicant alleges he was denied procedural fairness in the following ways:
(a)he did not have sufficient time to provide a written response to documents before the Tribunal (Ground 5);
(b)his contraction of Covid-19 meant he could not prepare oral submissions for the hearing (Ground 6);
(c)his request for an adjournment, on account of him being “still sick”, was refused (Ground 7); and
(d)the Tribunal was biased in favour of the second respondent, as demonstrated by the Tribunal not bringing to the applicant’s attention “all matters that he should have been allowed to comment on” (Grounds 8, 9 and 11).
The first respondent submits, and I accept, that the applicant’s complaints are entirely unsupported by any evidence. There is nothing in the Tribunal’s decision or reasons, or in the material otherwise before the Court, that supports any of the applicant’s contentions. Rather, the material before the Court, including the Tribunal’s decision and reasons, supports a finding that the applicant was given a full opportunity to participate in the hearing before the Tribunal. The Tribunal’s decision and reasons make clear that the applicant’s evidence was considered and he was given an opportunity to respond to the mother’s evidence, as demonstrated by [9] and [24] of the Tribunal’s reasons.
To the extent that Grounds 8 and 9 raise an allegation of bias against the Tribunal, the applicant has taken no steps to demonstrate by evidence how this allegation is established. There is nothing in the Tribunal’s decision or reasons, or otherwise in the material before the Court, to suggest that a fair-minded lay observer might reasonably apprehend that the Tribunal might not have brought an impartial mind to the resolution of the question the Tribunal was required to decide: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ). To the extent that these grounds amount to a contention that the Tribunal unreasonably exercised its discretion to decline to adjourn the hearing, the applicant has not established that any such request was made, or provided any basis (beyond his unproved assertion) that the Tribunal should have considered, let alone granted, an adjournment of the hearing. Accordingly, in the absence of any evidence in support of the complaint as to a lack of procedural fairness, the applicant’s complaints should be rejected.
Fairness and reasonableness of Tribunal’s review
As to the allegation that the Tribunal’s review was not conducted fairly and reasonably, various of the applicant’s grounds of review allege error on the part of the Tribunal by reason of the Tribunal member not having accepted the applicant’s evidence, or not otherwise making inquiries to support the applicant’s case on his behalf: proposed questions of law 2 and 4, and Grounds 2-3 and 12-16. The first respondent submits, and I accept, that those grounds misconceive the role of the Court on appeal on a question of law, and instead seek to re-litigate the merits of the applicant’s case before the Tribunal. It was for the applicant to present his case with sufficient supporting evidence to establish the findings of the fact he wished the Tribunal to make. He did not do so and he has not identified, beyond a bare assertion of error, how the Tribunal’s findings of fact were not available on the evidence before it and for the reasons it gave. The Tribunal was not under any general duty to inquire and the applicant has not identified how any such duty arose in the circumstances of this case: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [19]-[26] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
Ground 15 alleges that the Tribunal was under an obligation to make inquiries relating to the financial relationship between the applicant and his son, or the financial circumstances of the applicant’s son, but the Tribunal’s decision and reasons make clear that the evidence before it provided a reasonable and rational basis for the findings it made. There was nothing in the evidence before the Tribunal that gave rise to any duty to inquire.
The first respondent submits, and I accept, that the Tribunal had regard to the totality of the evidence before it, including the applicant’s evidence, but did not accept the applicant’s version of events in respect of his financial relationship with his son: [22]. Those findings were open to the Tribunal to make, including on the basis of its finding at [28] that the applicant was not a witness of credit.
The applicant has not shown any error by the Tribunal, let alone an error of law that would warrant this Court setting aside the Tribunal’s decision. Accordingly, the amended notice of appeal should be dismissed with costs.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackman. Associate:
Dated: 5 July 2023
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