Allmand v Denyer
[2021] FedCFamC2G 52
•16 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
Allmand v Denyer [2021] FedCFamC2G 52
File number(s): BRG 617 of 2020 Judgment of: JUDGE TONKIN Date of judgment: 16 September 2021 Catchwords: CHILD SUPPORT – Appeal from AAT decision – application for leave to extend time – leave refused – appeal dismissed. Legislation: Administrative Appeals Tribunal Act1975 (Cth), ss.44AAA
Child Support (Assessment) Act 1989 (Cth), s.117(2)(c)(ia), 161
Child Support (Registration and Collection) Act 1988, ss. 95H, 95H(1), 95H(2), 95J, 95J(1), 95J(2), 120
Federal Circuit and Family Court of Australia (Division 2) (Family Law) Act 2021 (Cth), ss.241, 214(2)
Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021, rr.12.13, 12.17Federal Court of Australia Act 1976, s.43
Cases cited: Agrippa & Horton (SSAT Appeal)[2010] FMCAfam 1144
Bedell & Kastens & Anor (SSAT Appeal)[2010] FMCAfam 1250
Child Support Registrar & Crabbe & Anor [2014] FamCAFC 10
Child Support Registrar & Crowley and Anor [2015] FamCAFC 76
Collector of Customs v Pressure Tanker Pty LtdandPazzolanic Enterprises Pty Ltd [1993] 43 FCR 280
Donald Campbell & Co Ltd v Pollak [1927] AC 732
Gyselman v Gyselman (1992) FLC 92 – 279
Henriques & Hatzis (SSAT Appeal) [2014] FCCA 1194
HGMZ v Secretary, Department of Social Services [2021] FCA 280
Jatin v Minister for Home Affairs [2019] FCA 150
Maple v Niu (No 2) [2018] FCCA 26
Minister for Immigration and Ethnic Affairs v Wu Shan Liang(1996) 185 CLR 259
Paxton & Child Support Registrar (Costs) [2016] FamCAFC 158
Probiotec Ltd v University of Melbourne [2008] FCAFC 5
Ruddock & Ors v Vadarlis & Others (No 2) [2001] FCA 1865
SZMZT & Anor v Minister for Immigration & Anor [2009] FMCA 420
Division: Division 2 General Federal Law Number of paragraphs: 77 Date of hearing: 20 August 2021 Place: Brisbane Solicitor for the Applicant: ABF Legal Solicitor for the Respondent: No appearance by the First Respondent Solicitor for the Respondent: Sparke Helmore ORDERS
BRG 617 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR ALLMAND
Applicant
AND: MS DENYER
Respondent
ORDER MADE BY:
JUDGE TONKIN
DATE OF ORDER:
16 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.Leave to extend time is refused.
2.The appeal is dismissed.
3.There be no order for costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review 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 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Allmand & Denyer is approved pursuant to s.110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).
REASONS FOR JUDGMENT
JUDGE TONKIN:
INTRODUCTION
The Applicant appeals pursuant to section 44AAA of the Administrative Appeals Tribunal Act1975 (Cth) (“AAT Act”) from a decision of the Administrative Appeals Tribunal (“AAT”) dated 12 October 2020 (“AAT decision”). By Notice of Appeal (Child Support) filed on 26 November 2020 the applicant seeks leave to extend time in which to file the appeal, an order that the decision of the AAT made on 12 October 2020 be set aside and other ancillary relief.
Though the applicant raised three questions of law in his Notice of Appeal Questions 1, 2 and 3 (a) were not pressed. The remaining issue to be determined was whether the AAT correctly applied subparagraph 95H and 95J of the Child Support (Registration and Collection) Act 1988 (Cth).
DOCUMENTS
The Applicant relied on his Notice of Appeal filed 26 November 2020, his affidavit filed on 12 April 2021 and written submissions whilst the Second Respondent relied on written submissions. The First Respondent took no part in the proceedings save for adopting the submissions of the Second Respondent. The matter was heard on 20 August 2021 and judgment reserved.
In the affidavit filed by the Applicant on 12 April 2021 the applicant sought to annex documents not before the Tribunal. The Court accepts the submissions of the Second Respondent that those documents are relevant only to establishing facts about issues before the Tribunal and do not have a tendency to demonstrate an error of law.[1] Leave to rely on the documents was refused.
[1] Sagal & Child Support Registrar (SSAT Appeals) [2013] FCCA 51 at [29; Waterford v Commonwealth (1987) 163 CLR 54 at [28] per Brennan J; Rana v Repatriation Commission [2011] FCAFC 124 at [20]
THE APPEAL
An appeal from a first review decision of the Tribunal to the Federal Circuit and Family Court of Australia does not constitute a re-hearing of the case on its merits but is limited to a review “on a question of law” alone. A particular question of law should be stated with sufficient precision.[2]
[2] Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 at [62]
In HGMZ v Secretary, Department of Social Services [2021] FCA 280 at [19] Flick J observed:
“[19] Although expressed as an “appeal”, the jurisdiction sought to be invoked by a party appealing from a decision of the Administrative Appeals Tribunal is an application made in the original – and not the appellate – jurisdiction of this Court: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 61-62 per Bowen CJ and Deane J, at 71 per Smithers J; TNT Skypack International (Aus) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178 per Gummow J (“TNT Skypack”).
[20] Such jurisdiction as is conferred by s 44 of the Administrative Appeals Tribunal Act is a jurisdiction confined to a “question of law”. What constitutes a “question of law” has been canvassed in many decisions of this Court but it is sufficient for present purposes to cite the following summary provided by Dowsett and Gordon JJ (Edmonds J agreeing) in Federal Commissioner of Taxation v Trail Bros Steel & Plastics Pty Ltd [2010] FCAFC 94, (2010) 186 FCR 410 (“Trail Bros Steel”) at 415:
“[13] … what is “on a question of law” for the purposes of s 44 of the AAT Act has been analysed in many cases and includes:
1.Whether the AAT has identified the relevant legal test: …;
2.Whether the AAT has applied the correct test: …;
3.Whether there is any evidence to support a finding of a particular fact: …; and
4.Whether facts found fall within a statute properly construed: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287.
That list is by no means exhaustive: …
Appl’d: Phillips v Inspector-General in Bankruptcy [2013] FCA 552 at [23] per Middleton J. The list of questions identified in Trail Bros Steel, of course, is not an exhaustive list.”
In Henriques & Hatzis (SSAT Appeal) [2014] FCCA 1194 Brown J discussed the nature and legislative basis of appeals from a decision of a Tribunal to the FCCA. He said at [133] “it is the function of this court to determine whether the decision of the SSAT was within its legal powers. That is what is meant by a question of law. It is not the function of this court to examine the merits of that decision. Essentially, it is not the function of this court to reappraise the evidence led before the SSAT and re-determine the case, according to the conclusions it draws from the available evidence”.
In Bedell & Kastens & Anor (SSAT Appeal)[2010] FMCAfam 1250, Sexton FM cited with approval the decision of Halligan FM in Agrippa & Horton (SSAT Appeal)[2010] FMCAfam 1144 who summarised the applicable law when a court reviews a decision of the Tribunal in the following terms at [10] to [11]:
“[10] ……. “the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error” (Collector of Customs v Pozzolanic Enterprises Pty Ltd, (1993) 43 FCR 280, at 287, cited with approval in Minister for Immigration and Multicultural Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ, and referred to by Kirby J to similar effect at 291).
[11] Nonetheless as Riethmuller FM noted in PJ & Child Support Registrar, [2007] FMCAfam 829 at [38], [2007] FMCAfam 829; (2007) 38 Fam LR 31, (2007) FLC 98-035:
[38] The only right of review of a decision of the SSAT is an appeal ‘on a question of law’ to the courts ... Most significantly, such an appeal does not allow for a review on the merits. As a result, it is important for the Tribunal to provide appropriate reasons. This will usually entail careful findings of fact and clear explanations of the reasons for any decision, particularly where it involves the exercise of a discretion such as altering a child support amount.”
The Full Court of the Federal Court in Collector of Customs v Pressure Tanker Pty LtdandPazzolanic Enterprises Pty Ltd [1993] 43 FCR 280 said regarding appeals from decisions of the Administrative Appeals Tribunal “the nature of the task of this court is clear. It is to leave to the tribunal of fact decisions as to the facts and to interfere only when the identified error is one of law”.
In Child Support Registrar & Crowley and Anor [2015] FamCAFC 76 the Full Court of the Family Court stated at [22] and [24]:
“Appeals from the Tribunal to, relevantly the FCCA lie only on a question of law (s 110B of the [Child Support (Registration and Collection) Act 1988 (Cth).
…..
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 which bears that restriction firmly in mind. Compliance with this prerequisite ensures the merits of a case are dealt with not by the Court but by the Tribunal a ‘distribution of function (which) is critical to the correct operation of the administrative review process.’” [3]
[3] Repatriation Commission v Owens [1996] 70 ALJR 904 at 904
In Child Support Registrar & Crabbe & Anor [2014] FamCAFC 10 at [54] the Full Court of the Family Court set out the principles that emerge from the authorities and have relevance when reviewing a decision of the Tribunal:
•The question of whether there is evidence to support a finding of fact or an inference drawn from findings of fact is a question of law (Al-Miahi[4]);
•The making of a finding of fact or the drawing of an inference in the absence of evidence is an error of law (Al-Miahi);
•A wrong finding of fact is not an error of law (Al-Miahi);
•A finding of fact based on reasoning that is “demonstrably unsound” or on an “illogical course” or a “faulty process” of reasoning is not an error of law (Al-Miahi);
•Judicial review is not to be over-zealous in seeking to find inadequacy of reasoning by an administrative decision maker; the review of the reasons of an administrative decision maker must not be turned into a reconsideration of the merits of the decision (Wu Shan Lian [5]); and
•Section 103X(3)(b) of the Registration and Collection Act (by analogy with s 430 of the Migration Act) requires the (Tribunal) to do no more than set out the findings which it did make on facts which it considered material to the decision which it made (Yusuf[6]).”
[4] Minister for Immigration and Multicultural Affairs v Al-Miahi[2001] FCA 744; (2001) 65 ALD 141
[5] Minister for Immigration and Ethnic Affairs v Wu Shan Liang(1996) 185 CLR 259
[6] Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323
NOTICE OF APPEAL
In the Notice of Appeal filed on 26 November 2020 the applicant states the following questions of law:
(1)AAT denied procedural fairness;
(2)AAT process legally inadequate;
(3)AAT incorrectly interpreted:
(a)The Civil Aviation Safety Authority Act: Part 61 Private Transport worker;
(b)Paragraph 95H (1) of the Child Support (Registration and Collection) Act 1988;
(c)Paragraph 95J (1) of the Child Support (Registration and Collection) Act 1988;
The Applicant raised “Grounds of Appeal” at Annexure “A” in the Notice of Appeal however “Grounds” [1] – [5] are not grounds of appeal but statements of fact setting out the history of the proceedings. “Grounds” [6] – [7] represent the argument advanced by the Applicant on appeal. Ground [8] challenges a finding of fact.
BACKGROUND
The applicant (father) and first respondent (mother) are separated parents of children X born in 2009 (now 12) and Y born in 2012 (now 9).
The care percentages for the children used in the child support assessment are as follows:
(a)X: 22% care of the mother; 78% care of the father; and
(b)Y: 78% care of the mother; 22% care of the father.
The care percentage aspect of the child support assessment was not a subject in the proceedings before the Tribunal.
Prior to the lodging of the application that led to the application before the Tribunal the child support assessment relevantly provided:
Period Mother’s income Father’s income Annual rate of child support payable by the mother 22/01/2019 – 13/05/2019 $50,650
(Adjusted Taxable income – ATI – for financial year – FY – 2017/2018)$21,637
(ATIFY 17/18)$3,134 14.05/2019 – 30/09/2019 $50,650
(ATI FY 17/18)$21,637
(ATI FY 17/18)$2,382
On 15 April 2019 the first respondent lodged an application to change the assessment based on the income, property and financial resources and the earning capacity of the applicant. The applicant cross applied based on the income, property and financial resources of the first respondent.
On 17 December 2019 a delegate of the second respondent concluded that neither party had established a ground for departure.
The first respondent lodged an objection to the delegate’s decision under Part VII of the Child Support (Registration and Collection) Act1988 (“the Collection Act”). On 3 April 2020 an objections officer determined to depart from the administrative assessment as follows:
12The mother lodged an objection to the delegate’s decision under Part VII of the Child Support (Registration and Collection) Act 1988 (Cth) (Collection Act) (TD[4]). On 3 April 2020, an objection officer decided to depart from the administrative assessment in these ways:
a.For the period 13 May 2019 to 30 June 2019:
i. The self-support amount for the father was set at $0; and
ii The mother’s annual income was set at $40,155.
b. For the period 1 July 2019 to 30 November 2020:
i. The mother’s ATI was set at $61,024.
c. For the period 1 July 2019 to 26 April 2020:
i. The father’s ATI was set at $38,000.
d. For the period 27 April 2020 to 26 October 2020:
i. The father’s ATI was set at $52,300.
e. For the period 27 October 2020 to 31 December 2021:
i. The father’s ATI was set at $38,000.
The first respondent applied to the Tribunal for review of the objection decision under Part VII of the Collection Act. Both parties attended the Tribunal hearing on 7 October 2020 and provided documents.
The Tribunal delivered a written decision on 12 October 2020.
FINDINGS OF THE TRIBUNAL
The question for determination before the Tribunal was whether there was a ground to depart from the administrative assessment of child support and whether it was just and equitable and otherwise proper to depart from the administrative assessment.
The Tribunal considered the legislative framework [6] – [7] and the application of paragraph s.117(2)(c)(ia) of the Child Support (Assessment) Act 1989 (Cth) [8] – [9] with reference to the decision of the Full Court of the Family Court in Gyselman v Gyselman (1992) FLC 92 – 279. The Tribunal had regard to the first respondent’s current gross annual income of $70,000 and her income with respect to two previous years $40,155 (FY18/19) and $58,767 (FY19/20).
The Tribunal noted that for the three most recent financial years the applicant’s income was $21,637 (FY17/18), $17,476 (FY18/19) and $32,711 (FY19/20) [12].
The Tribunal considered the first respondent’s contention that the taxable income relied on by the applicant did not reflect all income and financial resources available to him as a result of his involvement in the family business[13].
The Tribunal considered the applicant’s evidence. The applicant advised the Tribunal that his only source of income was through his employment with Employer B as a factory worker. Employer B. The Tribunal observed that the applicant’s employer provided him with two meals a day although “it does not appear that he reports any fringe benefits for these regular meals” [14].
The Tribunal found that the applicant’s parents provide him with significant financial support, he lives in a home on a large property in northern New South Wales and his parents also live in a new home on that property.[7] He has the use of two vehicles each maintained by his father’s business. His family eat regularly with his parents. He has few living expenses. The Tribunal determined that the applicant’s living expenses “would be minimal and of a discretionary nature” [15] though he meets the children’s expenses when in his care and “has always easily been able to do…”
[7] I infer from the Tribunal’s reasons that the applicant’s parents own the northern NSW property and dwellings
The Tribunal found that the applicant works as a tradesperson. A company called Company C is the owner of the company. The applicant receives no income from his work as a tradesman[16].
The Tribunal found that the applicant’s father is paid $6000 per month by Company C for his transport services. The applicant told the Tribunal that his father “uses the money to meet the legal expenses associated with the family’s business”. The Tribunal found that the applicant was given the opportunity both before and during the hearing to provide evidence regarding what if any contribution the applicant’s father made to generating the vehicle services income paid to the applicant’s father. The Tribunal found that “the evidence remained scant and inconsistent” [17]. The Tribunal was not satisfied that any income or substantial part of the income of $6000 per month was attributable to services provided by the applicant’s father. The Tribunal found that the applicant provided services as a transport worker and Company C paid the applicant’s father (and not the applicant directly) for those services. The Tribunal indicated it was not clear whether any other services were provided to Company C. [17]
The Tribunal directed the applicant to produce to the Tribunal documents showing what work was undertaken by the applicant and by his father in return for the regular “transport services” income received by the applicant’s father. No documentation was produced. The applicant stated that his father controlled those documents and that his father refused to produce them. The applicant provided to the Tribunal a letter he sent by email on 31 August 2020 to his father’s accountants the effect of which was to inform the accountants that he considered the Tribunal’s direction to produce such documents to be an overreach and expressly “out of line”. He asked the accountants to confirm that the documents were not to be produced. The accountants replied by email on 1 September 2020 that as sought by the applicant, the documents could not be produced by them as they did not have permission to disclose them [18].
The Tribunal found that the applicant provided no adequate explanation why he did not simply ask the accountants for the documents rather than asking the accountants to refuse to produce the documents or obtain the documents from his father with whom he lives and for whom he provides transport services for Company C[19]. The applicant advised the Tribunal that his father refused to produce the documents due to his dislike of the respondent. He agreed that his father was aware that the issue of the applicant’s income as a transport worker and his connection with Company C and his father was to be considered by the Tribunal and it would have been a simple matter for the applicant’s father to provide documents (if they existed) showing his father’s genuine role in the generation of relevant income. The Tribunal determined that information “does not exist which would support the applicant’s case particularly as to the issue whether any of the income received by the applicant’s father is for “services” other than those services undertaken by the applicant”. The Tribunal observed that the applicant had asked the accountants in his email of 31 August 2020 to confirm that his father’s business was “in no way connected” to his own. The Tribunal found that “tellingly, the accountants did not provide any such confirmation in their email of 1 September 2020” [19].
The Tribunal found that when asked during the hearing about “vehicle services” undertaken for Company C by his father the applicant “gave vague and changeable evidence that his father variously provided catering services, cleaning services and sometimes storage of the vehicle owned by Company C.” [20] The Tribunal did not accept the applicant’s evidence.
The Tribunal considered information provided to the Child Support Agency by Company C in July 2019 noting that the information included that the applicant “is the endorsed transport worker of the relevant vehicle. It is the understanding of Company C that there is an arrangement between the applicant and Mr D (his father) and Company C are not aware of the specifics of this arrangement”[21].
The Tribunal observed that other than the reference to storage of the vehicle which took place for a few months during 2018 and which did not result in any significant increase in the payment made by Company C, the services identified by the person paying for those services were limited to the services of a private transport worker for vehicle owned by Company C. Those services are undertaken by the applicant. The Tribunal observed that Mr E acknowledged the likely existence of a private arrangement between the applicant and his father in relation to the income earned by the applicant as a transport worker. The Tribunal noted that the applicant’s father’s accountants did not refute the existence of a connection between the business interests of the applicant’s father and the applicant when expressly requested to do so [22]. The Tribunal did not accept the applicant’s evidence with respect to his father’s involvement (if any) in the generation of income with respect to vehicle services [23].
The Tribunal considered the detailed evidence given by the applicant of work undertaken by him as a transport worker for the vehicles owned by Mr E [24] to [29] and found that the applicant had access to financial resources that significantly exceed his reportable taxable income. The Tribunal found that payments made by Company C to the applicant’s father “are for the engagement of the applicant as private transport worker as needed by Mr E for his vehicles” [30]. The Tribunal found that it had not been provided with any reliable or consistent evidence about any other services provided by the applicant’s father that would lead the Tribunal to conclude that someone other than the applicant generated the income provided to the applicant’s father of $6000 per month [30]. The Tribunal found that the applicant had chosen to direct this income to his father to disguise the income received by him in the amount of $72,000 per annum from early 2017 [30].
The Tribunal found that the applicant had income of $102,000 per annum from the date of the respondent’s departure application (15 April 2019) until the end of the financial year in 2018/2019 and $115,000 for the financial year ending 2019/2020 [36].
The Tribunal concluded that it would be reasonable to conclude that for the foreseeable future the applicant would continue to have access to income and financial resources of approximately $115,000 per annum [37].
The Tribunal concluded that the child support payable by the applicant would be approximately $7000 per annum if the income figures it had determined were used in the assessment [40]. Under the existing assessment the respondent was required to make a child support payment to the applicant at an annual rate of $3000 [38]. The Tribunal concluded that the ground for departure was established because the administrative assessment formula had produced a result that was unjust and inequitable having regard to the parties respective incomes and financial resources [41].
The Tribunal concluded that the self – support amount provided by the administrative assessment formula ($26,000 per annum) was an appropriate measure of each party’s proper needs [43] – [44].
The Tribunal determined to vary the assessment [45] as follows:
(a)15 April 2019 to 30 June 2019: The applicant’s annual income is $102,000;
(b)1 July 2019 to 30 October 2022: The applicant’s annual income is $115,000;
(c)1 September 2020 to 31 August 2021: The respondent’s annual income is $70,000.
The Tribunal accepted that implementing the determination would result in the applicant owing arrears of child support but was not satisfied that this would cause hardship to the applicant having regard to the financial resources he had access to and the extent to which he sought to quarantine those resources from the child support process [46].
The Tribunal found that it was otherwise proper to make the proposed determination because it would result in an appropriate apportionment of financial responsibility for the children as between the parents and the community [47].
The Tribunal set aside the objection decision and replaced it with a new decision varying the child support assessment as follows:
·For the period 15 April 2019 to 30 June 2019 the adjusted taxable income of Mr D is varied to $102,000;
·For the period 1 July 2019 to 30 October 2022 the adjusted taxable income of Mr D is varied to $115,000; and
·For the period 1 September 2020 to 31 August 2021 the adjusted taxable income of Ms F is varied to $70,000.
FIRST QUESTION OF LAW:
The applicant was required to state with precision the particular questions of law in issue. I accept the submission of the Second Respondent that the Court has a duty to ensure the proceedings are fair in light of the applicant’s status as a self – represented litigant as he was when he lodged the Notice of Appeal. This duty does not oblige the Court to “undertake a partisan analysis of lengthy unstructured assertions and misconceptions with a view to ensuring that a self – represented litigant has not missed some arguable point”[8]. However the applicant was represented throughout the appeal. The first question of law raises a mere assertion lacking in sufficient detail to be the subject of a meaningful response. Under the guise of a denial of procedural fairness the applicant challenges the merits of the Tribunal’s decision.
[8] Mendonca v Legal Services Commissioner [2020] NSWCA 84 at [21]
The applicant argued that the Tribunal paid “scant regard” to the First Respondent’s financial circumstances. The Tribunal’s decision clearly records why the Tribunal focused on the applicant’s financial affairs given his financial circumstances were more complex. The Tribunal enquired at [14] – [15] why the applicant undertook “free work” as a transport worker for a company that paid the applicant’s father $6000 per month for ill – defined “vehicle services”. The weight given to that evidence was a matter for the Tribunal.[9]
[9] Phelps & child Support Registrar & Anor (SSAT Appeal) [2015] FCCA 1599 at [57].
Regarding the complaint that the Tribunal subjected the applicant to intense interrogation the Tribunal was permitted to question the applicant regarding his financial affairs. In Jatin v Minister for Home Affairs [2019] FCA 150 at [9] Mortimer J said “in an inquisitorial setting such as that before the Tribunal it is important that the Tribunal is able to express doubts it has about an applicant’s evidence or the consistency of narratives or explanations given by an applicant or the reliability of information or other material presented to the Tribunal…..”
With respect to the applicant’s complaint that no adjustment was made to the first respondent’s income or financial resources through her de facto partner the Tribunal considered the first respondent’s financial circumstances noting that she lived with her de facto partner [44]. The applicant seeks a review of the merits. The review of the reasons of an administrative decision maker must not be turned into a reconsideration of the merits of the decision: See Wu Shan Lian. [10] No error of law has been identified.
[10] Minister for Immigration and Ethnic Affairs v Wu Shan Liang(1996) 185 CLR 259
SECOND QUESTION OF LAW:
The applicant contends the Tribunal’s process was “legally inadequate”. No procedural error was identified by the applicant nor was an error of law further particularised. Annexed to the Notice of Appeal as “grounds of appeal” were various complaints about the fact finding process undertaken by the Tribunal and the conclusion that the applicant had access to income and financial resources in excess of his taxable income.
The applicant contends that the Tribunal did not exercise its power under section 95H of the Collection Act to seek financial information from the applicant’s father or his. Section 95H of the Collection Act does not impose an obligation on the Tribunal but is “clearly framed as a discretionary power which the Tribunal may choose to exercise in an appropriate case”[11].
[11] Emerson v Emerson and Ors [2018] FCCA 812 at [26] per Hartnett J
Regarding the applicant’s contention that the Tribunal was in error in that it did not request information from the applicant’s father or his accountant the Tribunal found at [17] and [20] that notwithstanding a direction from the Tribunal the applicant failed to provide any documentation showing what work was undertaken by him and his father in return for the regular “transport services” income [18]. The applicant instead asked his father’s accountants “to confirm that the documents were not to be produced” to the Tribunal because the applicant considered the Tribunal’s direction to produce such documents to be an overreach and expressly “out of line”. In the Tribunal’s view the applicant’s failure to produce the documents left open the conclusion that production of the documents would not support the applicant’s case [19]. That conclusion was open to the Tribunal on the evidence.
Company C in response to a notice to produce documents to the Tribunal provided information that the applicant’s father was paid a monthly retainer to provide ongoing vehicle services and vehicle storage and the applicant was the endorsed transport worker of the relevant vehicle. There was an agreement between the applicant and his father the terms of which were not known to Company C. The Tribunal inferred that the $6000 per month made by Company C to the applicant’s father was for the engagement of the applicant as a private transport worker as needed by the company director for his vehicles[30]. That finding was open on the evidence.
The assertion by the applicant that the Tribunal made findings [31] “without supporting evidence” is contradicted by the Tribunal’s reasons for decision. Though the applicant claimed his only source of income was his employment as a factory worker for Employer B[14] he gave evidence that he worked free as a transport worker as required by Company C [16]. Company C paid $6000 per month for “vehicle services” to the applicant’s father. The Tribunal was not satisfied that any income or substantial part of the income of $6000 per month was attributable to services provided by the applicant’s father. The Tribunal found that the applicant provided services as a transport worker and Company C paid the applicant’s father (and not the applicant directly) for those services. The Tribunal indicated it was not clear whether any other services were provided to Company C [17]. The Tribunal was well aware that there were limitations on the applicant as he did not hold a private transport worker licence and inferred this may explain why Company C pays the applicant’s father instead of the applicant directly [33].
The Tribunal determined that “the applicant stated he did not receive any cash but the Tribunal notes he received financial support from his parents that far exceeds his essential costs including by providing him with a large home and two motor vehicles………..The Tribunal finds that the applicant does not make any regular payments of board to his parents. If the applicant is not paid in cash from the proceeds of the airline services paid for by Company C that is through a choice made by the applicant to alienate that income to his father. Alternatively in order to meet the living costs met by his parents he would need to earn before tax income in the order of $72,000…”. That finding was open on the evidence. No error has been demonstrated by the applicant.
THIRD QUESTION OF LAW (A):
The applicant asserts that the Tribunal “incorrectly interpreted…Part 61 of the Civil Aviation Safety Authority”. This appears to be a reference to Part 61 which provides a regulatory framework for the licencing of transport workers. The applicant contends that the fact that he is not legally allowed to work for income by operation of Part 61of the regulations was a matter that the Tribunal should have taken into account. The Tribunal made no finding whether the applicant complied with Part 61 of the Regulations. Nor was the Tribunal obliged to do so in circumstances where the Tribunal found that the income derived by the applicant’s father was a financial resource of the applicant.[12] No error of law is apparent.
[12] Tribunal decision 12 October 2020 at [33] and [41]
THIRD QUESTION OF LAW (B):
The applicant contends that the Tribunal incorrectly interpreted section 95H of the Collection Act. Subsection 95H(1) of the Collection Act provides that if the AAT reasonably believes that a person has information or a document that is relevant to an AAT first review the AAT may by written notice given to the person require the person (a) to give to the AAT within the period and in the manner specified in the notice any such information or (b) to produce to the AAT within the period and in the manner specified in the notice any such documents or (c) to attend before the AAT at the time and place specified in the notice and answer questions.
Subsection 95H(2) of the Collection Act provides that a person commits an offence if (a) the AAT gives the person a notice under subsection (1) and (b) the person fails to comply with the notice. Subsection (2) does not apply if complying with the notice might tend to incriminate the person.
As discussed section 95H of the Collection Act is discretionary. There was no obligation or duty on the Tribunal to obtain information from a person if the Tribunal believed a person had information relevant to the review of the child support decision. Moreover the Tribunal had directed the applicant to produce to the Tribunal documents showing what work was undertaken by him and by his father in return for regular “vehicle services” income received by the applicant’s father. No documentation was produced. The Tribunal found [18] that the applicant claimed that his father controlled those documents and his father refused to produce the documents. The applicant produced a letter to the Tribunal he had sent by email to his father’s accountants the effect of which was to inform the accountants that he (the applicant) considered the Tribunal’s direction to produce such documents to be an overreach and expressly “out of line”. The applicant expressly asked the accountants to confirm that the documents were not to be produced. The Tribunal took that evidence into account in determining that matter. No error of law has been demonstrated by the applicant.
THIRD QUESTION OF LAW (C):
The applicant contends that the Tribunal incorrectly interpreted section 95J of the Collection Act. Subsection 95J(1) of the Collection Act provides that if the AAT is satisfied that a person has information or custody or control of a document that is relevant to an AAT first review the AAT may for the purposes of the review request the Registrar to exercise the Registrar’s powers under section 161 of the Assessment Act or section 120 of the Collection Act. Subsection 95J(2) of the Collection Act provides that the Registrar must comply with the request as soon as practicable and no later than 7 days after the request is made. There was no obligation on the Tribunal to use its powers to obtain information in that manner. As discussed above the Tribunal found [18] that the applicant claimed that his father controlled those documents and that his father refused to produce the documents in circumstances where the applicant had expressly asked his father’s accountants to confirm the documents would not to be produced. No error of law is apparent.
The applicant raised additional matters in his “grounds of appeal” though the majority of those matters were not agitated on appeal. The applicant’s legal representative did not argue that the Tribunal “prejudged” the matter as asserted by the applicant. The mere fact that the Tribunal made findings adverse to the applicant does not give rise to an inference that the Tribunal was biased.[13] I accept the submissions of the second respondent that as the Tribunal was required to review the objection decision de novo there was no obligation on the part of the Tribunal to defer to the objection officer’s assessment with respect to the applicant’s self - support costs.[14]
[13] Thapa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1017 at [54]
[14] Shi v Migration Agents Registration Authority [2008] HCA 31 at [101]
It was common ground during the hearing of the appeal that the audio recording of the Tribunal hearing had malfunctioned and no transcript of evidence of the hearing was available to the applicant. The Court in SZMZT & Anor v Minister for Immigration & Anor [2009] FMCA 420 at [69] held the Tribunal was not legally obligated to record the Tribunal hearing. The Tribunal was unaware the audio recording had malfunctioned. No argument was raised as to how the failure of the Tribunal to record the hearing or the applicant’s failure to obtain a transcript constituted a denial of procedural fairness.
Having regard to the evidence before the Tribunal and the reasons for decision no error of law has been established.
The applicant received the Tribunal’s decision on 20 October 2020. The appeal should have been brought within 28 days of the date the applicant received the Tribunal decision (see s44AAA (2) (a) and 44(2A) (a) of the AAT Act.) The appeal was filed nine days later (26 November 2020). Notwithstanding that the second respondent did not oppose the applicant being granted leave to extend time having regard to my determination that no error of law has been demonstrated leave to extend time is refused. The appeal is dismissed.
COSTS
At the conclusion of the hearing Counsel for the second respondent sought an order that the applicant should be ordered to pay the second respondent’s costs fixed in the sum of $7200 in accordance with Schedule 1, Part 2, Division 2, Item 3 of the Federal Circuit Court Rules2001 (Cth). No other submissions were made to support the order sought.
Subsection 214 (2) of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Act 2021 (Cth) provides that the Court or a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs must not be awarded. This is a matter arising under the AAT Act thus subsection 214 (2) applies.
Chapter 13 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 provides in relation to “Costs in Appeals” the Rule does not apply to an appeal to the Federal Circuit and Family Court of Australia (Division 2) under section 44AAA of the Administrative Appeals Tribunal Act 1975 (Cth): See Subrule 13.01 (2) (a) (ii).
Subrule 12.13 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 provides:
“12.13 Order for costs
(1) The Court may make an order for costs on its own initiative.
(2) A party may apply for an order that another person pay costs.
(3) An application for costs may be made:
(a) at any stage during a proceeding; or
(b)by filing an Application in a Proceeding within 28 days after the final order is made.
(4) …..
(5)In making an order for costs in a proceeding the Court may set a time for payment of the costs which may be before the proceeding is concluded.”
Part 12.6 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 sets out the method of calculation of costs. Subrule 12.17 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 provides:
“12.17 (1) The Court may order that a party is entitled to costs:
(a)of a specific amount;
(b)as assessed on a particular basis; or
(c)to be calculated in accordance with the method stated in the order; or
(d)for part of the proceeding or part of an amount assessed in accordance with Schedule 3.”
In Ruddock & Ors v Vadarlis & Others (No 2) [2001] FCA 1865; (2001) 115 FCR 229 the Full Court of the Federal Court per Black CJ and French J discussed the application of section 43 of the Federal Court of Australia Act 1976 (which in its terms is identical to section 214 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Act 2021 (save for exceptions)). The Court said with reference to the long standing authority of the House of Lords in Donald Campbell & Co Ltd v Pollak [1927] AC 732 that “the Court has an absolute and unfettered discretion to award or not to award [costs]’: per Viscount Cave LC; Viscount Dunedin, Lord Phillimore and Lord Carson agreeing (at 811). Like all discretions however, it must be exercised judicially and not against the successful party except for some reason connected with the case”.
In Probiotec Ltd v University of Melbourne [2008] FCAFC 5Finn, Rares and Besanko JJ said with respect to the discretion to award costs:
“There is no absolute rule that, in the absence of disentitling conduct, a successful party is to be compensated by the unsuccessful party with respect to the exercise of a power conferred by a provision such as s 43: Oshlack 193 CLR at 88 [40] per Gaudron and Gummow JJ. And, there is no absolute rule that the sole purpose of a costs order is to compensate one party at the expense of another under the Judicature Act system, such as is provided by s 43 of the Act: Oshlack 193 CLR at 89 [43]. The general power conferred by a provision like s 43 is not to be narrowly construed. On the other hand, where there has been some delinquency on the part of an unsuccessful party, the Court has power to order costs against that party, and sometimes on a scale greater than party/party costs: Oshlack 193 CLR at 89 [44] per Gaudron and Gummow JJ.”
The second respondent raised no argument why a costs order should be made against the applicant. Such an order is not axiomatic. No evidence was adduced that the applicant had been invited to discontinue the application for review on the basis that is was likely to fail. The second respondent did not argue that the appeal lacked merit or any foundation and/or had no reasonable prospects of success. Likewise the solicitor for the applicant made no submissions with respect to costs.
The applicant when representing himself drafted and lodged the Notice of Appeal. The applicant made a reasonable attempt to advance his argument with respect to the decision of the Tribunal. Unfortunately he did not seek legal advice until the hearing.
The hearing before me was brief. The applicant’s solicitor made proper concessions and made no attempt to press questions that did not constitute errors of law. The applicant’s solicitor made brief and succinct submissions regarding the remaining issues in dispute. Similarly Counsel for the second respondent confined his oral argument to the remaining issues and otherwise relied on his written submissions.
I do not consider that the applicant’s attack on the Tribunal was unreasonable given that he represented himself in drafting the Notice of Appeal.
The Court accepts that the second respondent was wholly successful. No doubt there was a cost to the Child Support Registrar in defending the proceedings. The approach taken by the Child Support Registrar allowed the first respondent to rely on the written submissions of the Child Support Registrar again reducing the hearing time. She did not participate in the proceedings.
The Court accepts that where the Child Support Registrar is entitled to appear in an appeal and provides written submissions, the Court may exercise its discretion and award costs: see eg Maple v Niu (No 2) [2018] FCCA 26 (Judge Terry). In Paxton & Child Support Registrar (Costs) [2016] FamCAFC 158 at [29] the Full Court observed that while the Child Support Registrar is funded by the public purse “it ought not to have to bear the costs of reasonably defending its position against an unreasonable attack”.
Notwithstanding that the second respondent was wholly successful, given the concessions made by the applicant’s solicitor and the manner in which the matter was conducted I am not satisfied that an order for costs should be made in favour of the second respondent. I make no order for costs.
I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Tonkin. Dated: 16 September 2021
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