Baldwin v Bartlett& Anor
[2017] FCCA 928
•9 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BALDWIN v BARTLETT& ANOR | [2017] FCCA 928 |
| Catchwords: CHILD SUPPORT – Appeal from decision of Administrative Appeals Tribunal – no error of law established – appeal dismissed. |
| Legislation: Administrative Appeals Tribunal Act 1975, ss.43(2B), 44AAA |
| Cases cited: LDME & JMA (SSAT Appeal) [2007] FMCAfam 712 Comcare v Etheridge [2006] FCAFC 27 |
| Applicant: | MS BALDWIN |
| First Respondent: | MR BARTLETT |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | MLG 1208 of 2016 |
| Judgment of: | Judge Harland |
| Hearing date: | 16 March 2017 |
| Date of Last Submission: | 16 March 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 9 May 2017 |
REPRESENTATION
| The Applicant: | Self-represented |
| The Respondent: | Self-represented |
| Counsel for the Second Respondent: | Ms Johnson |
| Solicitors for the Second Respondent: | Mills Oakey |
ORDERS
That the appeal be dismissed.
That the appellant pay the second respondent’s costs in the sum of $6,948.
IT IS NOTED that publication of this judgment under the pseudonym Baldwin & Bartlett & Anor is approved pursuant to s.110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1208 of 2016
| MS BALDWIN |
Applicant
And
| MR BARTLETT |
First Respondent
CHILD SUPPORT REGISTRAR
Second Respondent
REASONS FOR JUDGMENT
This is an appeal from the decision of the Administrative Appeals Tribunal (“AAT”) decision dated 9 May 2016.
The appellant is self-represented. She relies on her amended notice of appeal filed on 9 December 2016. She also relied on her written submissions and portions of the documents which were before the AAT. She also made oral submissions. The AAT had 685 pages of material before it. That material was made available to this Court. I made it clear to the appellant before, and at the appeal hearing, that she would need to take me to particular pages she wanted me to read as I would not read all of them. She was able to do this as she was clearly well prepared and across the material.
The first respondent did not file any submissions. He made brief oral submissions in response to the appellant’s submissions at the hearing.
The Child Support Registrar made written submissions and was represented by counsel at the hearing.
Early on in the proceedings both the appellant and the first respondent filed several subpoenas under the misapprehension that they would be able to call new evidence.
The appellant’s amended appeal notice sets out 25 grounds of appeal. The appellant filed the amended notice after a lengthy directions hearing where it was explained to her that the appeal, as it was initially drafted, did not disclose an error of law but rather was really seeking a review of the merits. I will not set out the grounds of appeal. The appellant has grouped them into categories and it is useful to address them under those headings. Those are:
a)Procedural fairness;
b)Findings of primary and ultimate fact;
c)Exclusion of relevant evidence and admission of irrelevant evidence;
d)Primary facts unsupported by any evidence of probative value
e)Misdirection;
f)Questions of degree.
The position of the Child Support Registrar
The Child Support Registrar opposes the appeal submitting that the appeal fails to disclose an error of law. The Child Support Registrar cites authorities which state the grounds of appeal on questions of law must be stated with precision. This is undoubtedly correct but it is also necessary to refer to the objects of the Federal Circuit Court Act 2001 (Cth) to proceed with undue formality. In this regard I refer to the comments of Halligan FM (as he then was) in LDME & JMA (SSAT Appeal) [2007] FMCAfam 712 at [29] to [31]:
29. The basis and focus of a section 110B appeal is a question of law. The appeal is not one in which findings of fact per se can be called into question (Comcare v Etheridge [2006] FCAFC 27 at [14] per Branson J, with whom Spender and Nicholson JJ agreed). The Grounds of Appeal called for in the Notice of Appeal in this Court assume the provisions of s.110B. Thus, in my view the Grounds of Appeal to be set out in the Notice of Appeal should ideally be expressed in a way that enables the respondent and the Court to identify the question or questions of law sought to be raised by the appellant and the reasons why a finding for the appellant on that question or those questions should result in the orders sought in the Notice of Appeal being made.
30. Notwithstanding this ideal, in my view this Court must have regard to the statutory requirement binding it to “proceed without undue formality" and to “endeavour to ensure that the proceedings are not protracted" (s.42, Federal Magistrates Act 1999), reflecting the objects of the Federal Magistrates Court Act (see especially s.3(2)(a) and (b)). The eschewing of undue formality is particularly significant in matters, such as child support matters, where unrepresented litigants are a significant phenomenon. The lack of representation of a s.44 appellant has been recognised in this Court as justifying some amelioration of the usually strict requirement in such appeals for the question of law to be stated in the Notice of Appeal (Burgess v Centrelink and Ors [2006] FMCA 1952 at [5] and [6]).
31. I am therefore of the view that an unduly legalistic or pedantic approach should not be taken in analysing the grounds of appeal stated in the Notice of Appeal. Especially with unrepresented litigants, the Court must strive to identify from the case presented whether a question of law arises that may justify the orders sought and strive, consistent with the requirements of procedural fairness, to deal with the substance of the case.
Appeals from the AAT in relation to child support may be made to this Court on a question of law.[1] The distinction between an error of law and error of fact can at times be hard to discern. This is particularly challenging for unrepresented litigants.
[1] Administrative Appeals Tribunal Act 1975 (Cth), s.44AAA.
It is important to be mindful of the fact that the AAT is a tribunal not a court of law. Section 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) states:
Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.
Principles applicable to child support appeals
It is not the function of the Court to engage in a merits view. It is limited to determining whether or not the AAT made an error of law. An error of law can include:
a)Failing to properly construe the applicable legislative provisions;
b)Identifying the wrong issues or asking itself the wrong questions;
c)Ignoring relevant material or relying on irrelevant material;
d)Failing to accord procedural fairness;
e)Making an erroneous finding that goes to jurisdiction making its reasoning legally unreasonable or illogical.
The Full Court of the Federal Court made the following comment of errors of law in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at p.286:
The limitation of the jurisdiction to the resolution of questions of law imposes a significant constraint upon the role of the Court in reviewing decisions of the Tribunal. The appealable error of law must arise on the facts found by the Tribunal or must vitiate the findings made or must have led the Tribunal to omit to make a finding it was legally required to make. A wrong finding of fact is not sufficient to demonstrate error of law: Waterford v Commonwealth (1987) 163 CLR 54 at 77-78. Where the decision of the Tribunal involves matters of fact and degree, then provided it applies correct principles of law, no appeal will lie: Minister for Immigration and Multicultural Affairs v Al-Miahi (2001) 65 ALD 141 at 365.
(Emphasis added)
The points made above in bold are important because many of the appellant’s complaints fall within that category.
It is useful to refer to the following passages of Child Support Registrar & Crabbe & Anor [2014] FamCAFC 10 at [49] to [51]
[49] Those principles are, in our view, most usefully and relevantly for present purposes stated in the judgment of the Full Court of the Federal Court (Sundberg, Emmett and Finkelstein JJ) in Minister for Immigration and Multicultural Affairs v Al-Miahi (2001) 65 ALD 141 at [34] (which closely follows what was said by Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355–6), and where it was first explained that:
The question whether there is any evidence of a particular fact is a question of law. Likewise, the question of whether a particular inference can be drawn from facts found or agreed is a question of law. That is because, before the inference is drawn, there is a preliminary question as to whether the evidence reasonably admits a different conclusion.
[50] Their Honours then continued:
Accordingly, in the context of judicial review, the making of findings and the drawing of inferences in the absence of evidence is an error of law. On the other hand, there is no error of law simply in making a wrong finding of fact. Even if the reasoning whereby the [decision maker] reached its conclusion of fact were demonstrably unsound, that would not amount to an error of law. A party does not establish an error of law by showing that the decision-maker inferred the existence of a particular fact by a faulty process, for example by engaging in an illogical course of reasoning. Thus, at common law, want of logic is not synonymous with error of law. So long as the particular inference is reasonably open, even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place — Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355–6 …
[51] Also of assistance in relation to the approach that a court should adopt in reviewing a decision of an administrative Tribunal is the following passage from the judgment of Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271–2:
… [In] Collector of Customs v Pozzolanic … a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be “concerned with looseness in the language … nor with unhappy phrasing“ of the reasons of an administrative decision-maker. The Court continued: “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.
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin:
The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
In many respects what the appellant seeks to do is precisely what the authorities above speak against, which is to rake over the AAT decision with an eye finely attuned to error. Many of the appellant’s complaints take issue with the findings of fact the AAT made and the weight it placed on the evidence. These are matters for the Tribunal and do not raise errors of law.
The AAT is not required, nor is it practicable, to refer to every piece of evidence before it.
Background and the decision of the AAT
The parties have two children, X born (omitted) 1999 and Y born (omitted) 2000. The first respondent is the liable parent. The application for child support was registered on 23 April 2012.
On 9 December 2013 the child support officer made assessments for the periods 1 January 2014 to 31 December 2014, 1 January 2015 to 31 May 2015, and 1 June 2015 to 31 December 2015. Each of those periods increased the first respondent’s child support above what he would have been assessed to pay in accordance with the formula. The increase in the assessment was to take into account 50% of the children’s private school fees.
The appellant applied for a departure from the administrative assessment on 13 May 2015. She did so on the basis that there are special circumstances due to the costs of maintaining children because of being cared for, educated, or trained in the manner expected by the parents, as well as the first respondent’s earning capacity.
On 1 August 2015 the Department of Human Services (“the Department”) decided that the ground was established but it was not just and equitable to depart from the administrative assessment.
The first respondent lodged an objection on 4 September 2015 which was disallowed on 3 November 2015.
On 14 December 2015 the first respondent applied to the AAT for a review of the objections officer’s decision. The AAT made its decision on 2 May 2016 and it is from this decision that the appellant appeals.
The AAT correctly summarised the legislative framework at [10] of its decision.
The leading case with respect to child support departure applications is Gyselman & Gyselman (1992) FLC ¶92-279 (“Gyselman”). At page 79,064 the Full Court says the following:
The structure of that section is that s 117(1)(b) [of the Child Support (Assessment) Act 1989 (Cth) (“CSAA”)] identifies concisely the matters about which the Court must be satisfied and those components are then expanded in sub-sections (2) to (9). Section 117(1)(b) identifies a clear three-step process:
1. Whether one or more grounds of departure in s 117(2) is established.
If so:
2. Whether it is ``just and equitable'' within the meaning of s 117(4) to make a particular order.
3. Whether it is ``otherwise proper'' within the meaning of s 117(5) to make a particular order.
It is clear from the careful way in which s 117 has been structured that the Court must address each of those three separate issues.
This statement in Gyselman is important as it makes it clear, as does the wording of s.117(1)(b) itself, it is not enough to establish a departure ground. In this case a departure ground was established which meant that the AAT was then required to consider whether or not it is just and equitable to make the departure orders and whether it is otherwise proper to do so.
With respect to the departure ground based on the children’s education, the Department recorded that the first respondent did not dispute that he agreed to send the two children to (omitted) School. He further confirmed that he had signed enrolment forms for the girls to attend (omitted) School and (omitted) School before they separated. He says despite this his preference was that the girls attend public schools. The AAT recorded that irrespective of the first respondent’s preference he agreed to children attending his private schools as evidenced by signing the enrolment forms and confirmed his oral evidence. The AAT was satisfied that the children were being educated in the manner expected by their parents.
The AAT then referred to the tuition costs and other expenses charged by the school. It was satisfied that the departure ground had been established on the basis of the children’s school fees.
At [17] the AAT recorded that as it found a ground for departure was established it did not consider the parties applications with respect to their respective earning capacities as it considered these matters as part of the consideration as to whether or not it would be just and equitable to depart from the administrative assessment.
The AAT then went on to consider the evidence and arguments put forward by the parties.
The AAT observed that the first respondent was already paying an increased child support liability since 1 January 2014 by way of a previous departure determination. The AAT further noted that he was up to date with respect to those payments and found that it would not be just and equitable to disturb the previous departure decision because to do so would cause hardship to the appellant and the children by creating an overpayment, but the AAT also noted that the first respondent did not seek to review that departure determination until the appellant made an application for a further departure.
The AAT concluded that the first respondent’s financial circumstances were such that to depart from the administrative assessment with respect to educational expenses for 2016 and beyond would cause considerable hardship to him that his financial circumstances do not reflect capacity to pay child support in addition to the administrative assessment and therefore it would not be just and equitable to depart from that assessment.
Appeal grounds
The appellant sets out numerous appeal grounds. Many of those are in the form of questions and some are really submissions. It is convenient to deal with them under the headings the appellant has grouped them under. They are also repetitive. She makes what are essentially the same complaints under different grounds.
The appellant refers to several authorities, some of which are not on point. For example, she refers to authorities which discuss private school fees. It is not necessary refer to those decisions as it is clear that the AAT found that the departure ground was based on the children being educated in the manner which the parents expected. Having determined that the departure ground was established the AAT was obliged to consider whether or not in the circumstances it was just and equitable to make the departure application.
Procedural fairness complaint
The second respondent refers to the well-known authorities discussing procedural fairness. I will not repeat them here.
The first complaint concerns procedural fairness and can be disposed of quickly. The complaint centres on a judgment by Judge Small in the Federal Circuit Court of Australia with respect to the parties property proceedings. The appellant complains that the AAT member indicated during a telephone hearing that it would not have regard to the judgment and in reliance on that the appellant did not refer to it. The appellant did not produce a transcript in support of this submission. What is clear from [31] of the AAT’s decision is that it rejected the first respondent’s submission that the appellant retained $90,000.
The second respondent submits that the appellant was accorded procedural fairness. She was given the opportunity to respond to the first respondent’s submissions and did so. At [31] the AAT specifically rejected the first respondent’s submissions that she had those funds available to her. The second respondent also observed that whatever the AAT member may have said, neither party felt they could not make submissions about the property judgment and both did so.
Therefore, even if the complaint of procedural fairness was made out it is then necessary to consider whether or not that denial of procedural fairness has caused any practical injustice to the appellant. I am not satisfied that in the absence of the transcript it can be established that the appellant was denied procedural fairness but in any event even if she was, she suffered no practical injustice as the AAT did not accept the first respondent’s submissions on that point.
Findings of primary and ultimate fact
The appellant submits that she is not seeking a merits review under this ground but complains that the AAT’s reasons show it took into account irrelevant considerations and ignored relevant ones.
The issue of what weight is to be given to the applicant’s claims is a matter for the AAT: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291-2. Many of the appellant’s complaints about the treatment of various matters including homeland tours for the girls and the appellant’s heath go precisely to the issue of weight and also merits.
There are other examples where the appellant has misunderstood the evidence. For example the appellant refers to the birthday invitation which appears at page B42. That invitation is for a surprise party for the first respondent. It is not issued by the first respondent and it does not prove that the first respondent was funding an expensive party for himself.
Some of the complaints under this heading include the complaint that the AAT did not adequately consider the first respondent’s submissions that he was allegedly suffering from ill health and was likely to retire early which could have meant that he would have access to his superannuation earlier. She also complains that the AAT failed to consider the significant financial resource the first respondent has in his superannuation. The difficulty with this complaint is that it invites speculation. The AAT needs to deal with the financial circumstances of the parties as they are at the period under consideration. Furthermore it is difficult to see how this would assist the appellant. Following her line of reasoning, the AAT may have found that the first respondent’s earning capacity was soon to cease because of ill health and his likely early retirement.
The appellant complains that the AAT found that the father’s vehicle was worth $15,000 but the red book valuation appearing at page B68 of the documents before the AAT gives it value of $24,000. This is the type of error of fact which does not amount to an error of law. Such an error has no impact on the outcome as it is not the position of the law that person could be forced to sell a motor vehicle in order to pay child support.
The complaint the appellant makes with respect to [31] of the AAT reasons misunderstands them. She complains at [4.10] of her written submissions that the AAT found she still had access to $70,000. It went on to refer to the first respondent’s complaint that the appellant had drawn down $90,000 on the mortgage and complained that this was not taken into account properly in the property settlement. The AAT recorded that he did not provide evidence in support of his assertions. What the AAT said at [31] is that whilst the first respondent made complaints about funds available to the appellant which are raised during the property proceedings, the AAT found that there was no evidence before it regarding the funds on whether or not the appellant still retained them and that the first respondent had produced no evidence with respect to this apart from his assertions. The appellant makes this complaint at several points in her submissions. She misunderstands the AAT’s finding on this point which in fact was in her favour.
Continuing under this heading the appellant then complains that there are various subsections of s.117 of the CSAA which the AAT failed to consider. She gives various examples however it is clear from the AAT’s reasons that it did address the matters it was required to pursuant to the legislation, including the financial circumstances of both parties and the proper needs of the children.
The appellant also complains that the AAT failed to make further inquiries from the information before it. It has no such obligation. The AAT had a copious number of documents before it and also took oral submissions from the parties. There is no transcript of the proceedings before the AAT before this Court.
Another complaint of the appellant was with respect to s.117(7)(b) of the CSAA which states that the decision maker must disregard any income tested pension or benefit of the carer. The appellant’s income protection payments from her insurer do not fall into this category, only her disability support payments do.
Whilst the appellant refers to this complaint as being a failure to consider, the substance of her complaint disagrees with the weight that the AAT has placed on pieces of evidence which is a matter for the AAT and do not amount to errors of law.
The appellant argues that the AAT’s reasoning was inadequate and hard to follow. In part this is based on a misunderstanding by the appellant of the previous assessments and what the Tribunal was being asked to review.
There is no issue that the AAT was satisfied that the children were being educated in the manner the parties expected. That was consistent with the previous assessments.
It is very clear that the AAT accepted that the first respondent had agreed to the girls attending private schools and that on this basis the departure grounds under s.117(2)(b)(ii) was established. It is not necessary to discuss the authorities the appellant relies on with respect to private school fees. This is only the first part of the consideration for the AAT. It must then consider whether or not that it is just and equitable and otherwise proper to make the departure order.
It is important to note that when the appellant applied for a change in the administrative assessment on 13 May 2015, the first respondent cross applied and also sought a change of assessment. The first respondent was seeking a change of assessment based on the appellant’s income and resources. It is simply not correct to characterise the AAT’s decision in the way the appellant does in her submissions at [6] of the following subparagraphs. What the appellant seems to misunderstand is the effect of the previous assessments and the findings of the AAT with respect to the current application.
The appellant’s written and oral submissions show her misunderstanding of what the AAT was tasked to do. She says it did not make sense for the first respondent to appeal to the AAT if the assessments say he does not have to pay for half the school fees. What is clear from the AAT’s reference to the assessments early in its decision is that the first respondent was aggrieved by the objections officer decision to interfere with the assessments for the 2013 to 2015 periods which required the first respondent to pay a higher amount of child support allowing for his 50% contribution to the girls’ school fees. This was his reason for appealing. The appellant’s grievance arises out of the decision that from 2016 it would not be just and equitable to require the first respondent to contribute to the school fees. It is clear from the file note which appeared at p.486 from the bundle of documents before the AAT that this was explained to the appellant.
Exclusion of relevant evidence and admission of irrelevant evidence
One of the complaints the appellant makes under this ground is the finding the AAT made about the first respondent’s earning capacity. This complaint cannot be made out as the AAT quite correctly pointed out that the issue with respect to earning capacity is whether or not a person has reduced his or her income, such as a person working less than full time when they have the capacity to undertake fulltime hours. Other examples have been when a person has quit a well-paying job and taken up a lesser one where evidence has established that that party did that to reduce his or her child support obligations. The circumstances here are quite different. The first respondent is working full time.
The appellant also complains about the litigation costs the first respondent incurred with respect to the family law proceedings. This and the other liabilities the first respondent has are legitimate matters for the AAT to assess. The weight the AAT put on those was a matters was a matter for it.
Primary facts unsupported by any evidence of probative value
Under this ground the appellant complains that there was no probative evidence to support the finding about the first respondent’s indebtedness. It was the AAT’s task to assess the evidence before it and attribute to it what weight it thought appropriate.
The second respondent correctly submits that in the absence of a transcript, the appellant cannot make out a complaint that the AAT failed to consider evidence. The AAT took oral evidence from the parties in addition to the documents and written submissions.
The Appellant also complains that the AAT did not make further enquiries about possible hidden assets and sources of income. It is for the parties to put their cases to the AAT. The AAT does not have a duty to make its own enquiries.[2]
[2] See Phelps & Child Support Registrar & Anor (SSAT Appeal) [2015] FCCA 1599; Minister for Immigration and Citizenship v SZIAI & Anor (2009) 259 ALR 429.
Misdirection
The appellant did not expand on this ground. It is really another expression of her complaint about the AAT failing to take into account the relevant considerations which have been addressed above.
Questions of degree
This ground invites a merits review and disagrees with the AAT’s findings about both parties’ financial capacity.
The second respondent submits that the findings the AAT made were open to it on the merits and that these are findings of fact not law. I accept those submissions.
The second respondent’s written submissions go on to address the orders sought by the appellant which was for this Court to re-determine the case if she was successful in her appeal. I indicated to the parties prior to the appeal hearing that the Court would not adopt this course. The second respondent’s submissions set out sound reasoning for this. It is not necessary for me to discuss this further.
Conclusion
Having considered the AAT’s decision and the submissions made before me, I am not satisfied that the AAT committed any error of law. Therefore, the appeal must be dismissed.
Costs
In the event the appeal was dismissed, the second respondent sought costs in accordance with the Federal Circuit Court Scale for these matters. In these matters costs ordinarily follow the event. In other words the party who is successful is entitled to costs. I see no reason to depart from this rule in this case.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Harland
Date: 9 May 2017
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