Batson and Batson and Anor

[2016] FCCA 2631

FEDERAL CIRCUIT COURT OF AUSTRALIA

BATSON & BATSON & ANOR [2016] FCCA 2631

Catchwords:
CHILD SUPPORT – Child support assessment – whether the Tribunal failed to provide procedural fairness – no jurisdictional error identified – whether the Tribunal failed to have regard to ss.90K and 90G – whether the Tribunal’s decision was an improper exercise of power – amended application dismissed.

Legislation:

Child Support (Assessment) Act 1989 (Cth), ss.25, 99

Administrative Appeals Act 1975 (Cth), s.44AAA
Family Law Act 1975 (Cth), ss.90G, 90K

Appellant: MS BATSON

First Respondent: MR BATSON

Second Respondent: CHILD SUPPORT REGISTRAR

File Number: SYG 1279 of 2016

Judgment of: Judge Street

Hearing date: 12 October 2016

Date of Last Submission: 12 October 2016

Delivered at: Sydney

Delivered on: 12 October 2016

REPRESENTATION

Solicitors for the Appellant : Mr S Noss

The First Respondent Appeared in Person

Solicitors for the Second Respondent:

Mr K Eskerie

Sparke Helmore

ORDERS

1. The amended notice of appeal is dismissed.

2. The Applicant pay the costs of the Second Respondent fixed in the amount of $5,600.00.

IT IS NOTED that publication of this judgment under the pseudonym Batson & Batson & 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 SYDNEY

SYG 1279 of 2016

MS BATSON

Applicant

And

MR BATSON

First Respondent

CHILD SUPPORT REGISTRAR

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is a matter within the Court’s jurisdiction pursuant to s.99 of the Child Support (Assessment) Act 1989 (Cth) (“the Act”) and is an appeal from a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 19 April 2016. The appeal is brought pursuant to s.44AAA of the Administrative Appeals Tribunal Act 1975 (Cth). Appeals are limited to a question of law.

2. On 24 November 2006, the applicant applied for a child support assessment. On 13 December 2006, the applicant’s application was accepted by the Child Support Agency. The first respondent’s child support liability was registered for collection by the Child Support Agency from 6 September 2006 to 11 May 2011, and again from 4 October 2012. 

3. On 6 August 2013, the first respondent lodged an objection against the decision made on 13 December 2006 to accept the applicant’s application for child support assessment. The first respondent was granted an extension of time in which to lodge the objection, which was rejected on 3 October 2013.

The Tribunal’s Decision – 14 February 2016

1. On 15 October 2013, the first responded applied to the Social Securities Appeals Tribunal for a review of the decision made on 3 October 2014.  That appeal was heard on 24 January 2014, and on 14 February 2014 a decision was made to set aside the decision under review and to substitute a decision that the applicant’s application for assessment made on 24 November 2006 should be refused. 

2. The applicant appealed the decision to the Federal Circuit Court.  The appeal was allowed on the grounds of a denial of procedural fairness in relation to a request for an adjournment. That decision of the Social Securities Tribunal was set aside on 14 February 2014 and the matter was remitted for further hearing before a differently constituted Tribunal. 

The Tribunal’s decision – 23 February 2016

1. The appeal by the first respondent was heard on 23 February 2016.  Both the first respondent and the applicant attended the hearing in person and the applicant was represented by a solicitor.

2. The Tribunal received oral evidence from both the applicant and the first respondent on 23 February 2016. The Tribunal also received into evidence documents that it identified in its reasons. Those documents included a transcript relating to a domestic violence dispute heard before a magistrate in the Local Court on 4 June 2013, as well as communications between the parties which included submissions by the solicitor on behalf of the applicant dated 16 November 2015. Those submissions made clear that the applicant appreciated that a critical issue in the present case for the determination by the Tribunal was whether the applicant and the respondent were living together on a genuine domestic basis at the time of application. 

3. The submissions sought to advance largely based on recitals to a binding financial agreement dated 20 October 2006, as giving rise to an issue estoppel and res judicata. The Tribunal correctly rejected those submissions and determined on the evidence before it to give the binding financial agreement little weight and preferred the evidence of the first respondent to the evidence of the applicant. 

4. That adverse credibility finding was one in part based on a document that was a Family Tax Benefit lodged at Centrelink on 14 September 2005 and signed by both the applicant and the first respondent on 30 August 2005. Those signatures appear beneath a statement that relevantly included, acknowledging the importance of false or misleading information being an offence in relation to the relevant document.  In the relevant document, there was a question at 30 which relevantly said “your marital status changed, you gained a partner or separated” to which the answer “no” was completed. 

5. The documents before the Tribunal also included further material from the applicant in this Court dated 22 March 2016 advancing additional submissions, including seeking to address the significance of the document that was signed in 2005.

6. Also before the Tribunal following the hearing, was the tendering of information obtained from Centrelink, which was marked (folios C1 to C173). The Tribunal provided those documents to the parties for comment. The significance of the documents was obvious in relation to the issue between the parties as to whether they were living together on a genuine domestic basis. Both parties were given a genuine opportunity to respond to the information that had been obtained from Centrelink. It was not necessary for the Tribunal to conduct a further hearing having given the parties an opportunity to comment on that material.

7. The Tribunal correctly identified that it had to determine whether to accept the application for a child support assessment made on 24 November 2006. The Tribunal correctly identified that involved a determination of whether or not the applicant and the first respondent were living together as partners on a genuine domestic basis at that time. The Tribunal identified the relevant legislative provision of the Child Support Assessment Act 1989 and set out the relevant criteria under s.25(2) of the Act.

8. The Tribunal identified that the relevant issue was whether or not the applicant was living with the first respondent as his partner on a genuine domestic basis on 24 November 2006 when she made the application. The Tribunal had evidence from the first respondent contending that the applicant and the first respondent have lived together as a married couple until April 2013.

9. The first respondent contended that the binding financial agreement was entered into in order to defeat creditors. The Tribunal identified the arguments on behalf of the applicant in support of the alleged effect of the binding financial agreement in relation to the critical issue.

10. The Tribunal found the explanation of the first respondent to be plausible and provided cogent reasons for not placing weight on the statement in the binding financial agreement that purported to assert that the parties had separated on 28 April 2005.  Those adverse findings by the Tribunal cannot be said to lack an evident and intelligible justification. Part of those reasons include the document to which I have already referred, in which the applicant provided to Centrelink on 14 September 2005 a document inconsistent with the applicant’s evidence. 

11. The Tribunal made reference to the information provided to Centrelink on 14 September 2005 and found it was more likely than not to be correct, and that the applicant and the first respondent were not separated on that date.  The Tribunal found that cast significant doubt on the credibility of the applicant who has steadfastly maintained that she had separated in April 2005 and did not reconcile until December 2012.

12. The Tribunal preferred the evidence of the first respondent to that of the applicant. That adverse finding in relation to statement in the binding financial agreement was open to the Tribunal and cannot be said to lack an evident and intelligible justification. The Tribunal was not satisfied that the applicant was not living with the first respondent on a genuine domestic basis on 24 November 2006. For that reason the Tribunal determined that the application for child support assessments for their three children should be refused.

13. The Tribunal accordingly set aside a decision under review and substituted the decision that the application for child support assessment for the three children made on 24 November 2016 be refused.

Proceedings Before this Court

1. The applicants filed in this Court a notice of appeal dated 23 May 2016, which on the first return date, the Court identified as having difficulties in relation to the limited nature of appeals to this Court.

2. A notice of amended appeal application was filed on 16 September 2016. That amended notice of appeal purported to identify questions of law relevantly as follows:-

   1. Was the Applicant owed a duty of procedural fairness by the Tribunal in reviewing the matter.

   2. Was the obligation to provide procedural fairness breached by the Tribunal in the manner of merely providing 173 pages of documents obtained at its direction from Department of Human Services Family Allowance Office without giving anything more and in particular without identifying any of the use to which any documents might be put.

   3. Where the Tribunal determines that material obtained from another Commonwealth Department at its direction are relevant to the decision under review, how should the Tribunal then proceed, i.e. should a further hearing date be set after the parties have had an opportunity to consider the documents or should the threshold basis for possible relevance be made known to the parties at the time of provision of the material.

   4. When the material is provided under cover of a letter which states that parties are not to repeat submissions already made, does that change how the Tribunal should provide the material and the possible relevance of part of the material.

   5. Where the Tribunal provides material and says that any response by a party will be made known to the other parties, does such a statement give rise to a legitimate expectation that such a process will occur and in the event of it not occurring, does that constitute a denial of natural justice which renders the decision void and appropriate to be determined afresh.

   6. Where a matter has been remitted to the Tribunal following a successful appeal, is it sufficient for the Tribunal to listen to the transcript of the earlier hearing, or because of the passage of time from when that evidence was given, should it be transcribed and made available to the parties before the further hearing. If the transcript is unclear, should that be made known to the parties by a Tribunal on the re-hearing.

   7. Was the Tribunal in effort in not allowing a party or her representative listen to the earlier transcript before a re-hearing when the. transcript was not transcribed and was to be relied upon by the Tribunal.

   8. To what extent is a Tribunal required to provide an oppm1unity for explanation by a party of issues and inferences adverse to that party before making adverse findings.

   9. What is the force and effect of a Binding Financial Agreement for the purposes of determining child support eligibility.

   10. Where the Tribunal made inconsistent findings without explanation of the inconsistency and with contrary conclusions drawn in each instance, is there an inadequacy of reasons.

3. The notice of appeal was advanced on the following grounds:-

   1. The Tribunal erred in law in not providing natural justice and procedural fairness to the Applicant when 172 pages of material was provided to the parties for comment without any direction or guidance as to how the Tribunal had determined that all or part of the material was sufficiently relevant to be provided to the parties for comment.

   2. The Tribunal erred in law in not providing natural justice and procedural fairness to the Applicant when 172 pages of material was provided to the parties for comment under cover of a letter that stated not to repeat submissions already made but without any other direction or guidance as to how to respond.

   3. The Tribunal erred in law in not providing natural justice and procedural fairness and acted in breach of the Applicant's legitimate expectation when the Tribunal did not provide to the Applicant the response of her former husband to the material

   when:

   a. The material was provided to the patties for comment under cover of a letter which stated that "Any response or other material which you provide will be copied to the other parties to the review;" and

   b. Part of the response by the other party, the husband, was found by the Tribunal to be relevant; and/ or

   c. Had the Applicant been aware of the response, there were responses and other material she would have wanted to put before the Tribunal.

   4. The Tribunal erred in law in denying procedural fairness by not allowing a transcript of the earlier hearing to be available to the parties or their representatives before the re-hearing when the transcript was listened to and relied upon by the Tribunal.

   5. The Tribunal erred in law in denying procedural fairness to the parties and breached the legitimate expectation by slating that the transcript was listened to by the Tribunal without disclosing that the transcript was not clear and was difficult to hear.

   6. The Tribunal erred in law in failing to have regard to and apply Sections 90 G and 90 K of the Family Law Act for the purposes of the validity, force and effect of the Binding Financial Agreement signed by the parties.

   7. The Tribunal erred in law in failing to determine that the Binding Financial Agreement created an estoppel binding on the husband and not able to be validly denied by him.

   8. The Tribunal erred in law in that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made, namely by failing to take into account relevant considerations,  namely the nature, force and effect of the Binding Financial Agreement signed by the parties in October 2006 for the purposes of determining whether the parties were in a genuine domestic arrangement as at 24 November 2006.

   9. The Tribunal erred in law in that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made in that the Tribunal took into account irrelevant considerations,  namely:

   a. treating or accepting the Agreement as a sham when it had not been set aside;

   and

   b. accepting an uncorroborated and unsubstantiated statement by Mr Batson contrary to the terms of the Agreement, signed by him in the presence of a solicitor and with the solicitor having given a Certificate as to steps taken prior to the Agreement being signed.

   10. The Tribunal erred in law in denying procedural fairness by making adverse inferences against the Applicant without making known or asking questions or explanation of the matters proposed to be relied upon, in particular:

   a. Absence of reference to instances of domestic violence or reports to the police prior to 2010;

   b. Signing and dating of a Family Tax Benefit in 2005.

   11. The Tribunal erred in law in that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made, namely by failing to take into account relevant considerations,  namely the conduct of Mr Batson in:

   a. Having made an admission against interest by his signing of the Binding Financial Agreement in October 2006;

   b. Having described the document as a sham but failed to provide any corroboration for such an opinion;

   c. Delay in his challenge to the determination of eligibility notwithstanding prior knowledge of the existence of the determination of eligibility for child support;

   d. The absence of denials of separation in dealings by Mr Batson with CSA prior to his lodgement of a challenge to the eligibility determination;

   e. Denying knowledge of the nature of child support subsequent to prior conversations with staff of the CSA and the provision of brochures and sundry material to him from CSA;

   f. The motive of Mr Batson in denying the prior separation;

   12. The Tribunal erred in law in that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made in that the Tribunal took into account irrelevant considerations, namely that it was appropriate to consider events of 2005 to determine whether or not the parties were living in a genuine domestic basis as at 24 November 2006.

   13. The Tribunal erred in law in that the Applicant was denied procedural fairness by the Tribunal imputing a motive to her, namely a desire to obtain a parenting payment to which she would not be eligible, without making that known to the Applicant and without giving the Applicant to show the error in that imputation.

4. Written submissions received by the Court on behalf of the applicant as well as from the second respondent and submissions were also received in reply from the applicant.

Consideration and Conclusion

1. In relation to Ground 1, there was no procedural unfairness by the tribunal in providing the documents received from Centrelink to the parties for comment.  It was not necessary for the Tribunal to engage in directing or advancing the parties attention to particular documents. The significance of the documents was obvious. The live issue between the parties was apparent prior to the hearing that had been conducted on 23 February 2016 before the Tribunal and the significance of the documents in those circumstances was one in which the parties were given a fair and meaningful opportunity to respond to the documents. Those documents for the reasons already identified had a material significance in relation to the credibility of the applicant. That significance was apparent on the face of the documents. Ground 1 fails to make out any error by the Tribunal. I do not accept that there was any denial of procedural fairness as alleged in Ground 1. 

2. In relation to Ground 2, the Tribunal at the time of inviting comment indicated that it did not wish to have a repeat of the submissions that had already been made. That course was entirely open to the Tribunal and did not give rise to any denial of a meaningful opportunity for the parties to comment on the documents provided from Centrelink. There was no denial of procedural fairness in relation to Ground 2. Ground 2 fails to make out any error of law by the Tribunal.

3. In relation to Ground 3, for the reasons I have already given, the opportunity provided by the Tribunal for the applicant and the first respondent to comment on the documents was consistent with its obligations of procedural fairness in the conduct of the review by the Tribunal. It was not necessary for the Tribunal to give the applicant a further opportunity to respond to any response of the first respondent nor, did the absence of an opportunity for the applicant to further respond to the response of the first respondent give rise to any practical injustice. Ground 3 fails to make out any error. I am not satisfied there is any denial of procedural fairness as alleged in Ground 3.

4. I accept the second respondent’s submissions in relation to Grounds 4 and 5. There is no evidence before the Court that the applicant or the applicant’s representatives sought access to the audio recording before the Tribunal. I accept the submission of the second respondent that the tribunal had no obligation to furnish the parties with transcripts of the hearing that had earlier taken place. I further accept the submission of the second respondent that it has not been demonstrated how the absence of the audio recording could have given rise to any practical injustice to the applicant in the conduct of the review.

1. I am not prepared to accept on the evidence that the quality of the audio recording was such as to cause any practical injustice to the applicant. Grounds 4 and 5 fail to make out any denial of procedural fairness. I am not satisfied that there is any error of law as alleged in Grounds 4 and 5.

2. In relation to Ground 6, it is apparent that the Tribunal did have regard to the binding financial agreement and it was a matter for the Tribunal to determine what weight to give that agreement. The Tribunal was not bound by ss.90G and 90K of the Family Law Act1975 (Cth) to accept the facts in the recital to the binding financial agreement as incontrovertible facts for the determination of the application that was before it.

3. For the reasons I have already given, it is apparent that the Tribunal understood the argument being advanced by the applicant’s solicitor as to the weight and force that the applicant’s solicitor contended should be given to the binding financial agreement. The Tribunal did not fail to have regard to any relevant consideration as alleged in Ground 6.  Ground 6 fails to make out any error of law.

4. In relation to Ground 7, these were administrative proceedings. There is no estoppel that bound the Tribunal in relation to the facts that gave rise to the question of whether the criteria for the application were satisfied. Ground 7 fails to make out any error of law.

5. In relation to Ground 8, the evidence adduced before the Tribunal was a matter in which it was proper for the Tribunal to evaluate what weight to give to that evidence. The assertion of it being improper to give no weight to the binding financial agreement was completely lacking in substance. The adverse findings by the Tribunal were open.  Ground 8 fails to make out any error of law.

6. Ground 9 also seeks to advance the same allegation of impropriety and is without substance. It was open to the Tribunal for the reasons given to determine what weight to give the document. This is not a case of the Tribunal being in a position where there was uncorroborated evidence from the first respondent. There was a contemporaneous record entirely consistent with the first respondent’s evidence in relation to the contradiction of the applicant’s evidence that the parties had separated in April 2005. There was no failure by the Tribunal to take into account a relevant consideration as alleged in Ground 9.  Ground 9 fails to make out any error of law. 

7. In relation to Ground 10, this is a case where it was apparent to the parties what the issue was in relation to the criteria to be applied and the credit dispute between the parties had been addressed by the parties in submissions. The material relating to alleged domestic violence was not determinative in any way of the critical issue at the time of the lodging of the application.

8. The Tribunal was entitled to take into account the 2005 Centrelink document that was obtained and in respect of which the parties had an opportunity to respond. It was also open to the Tribunal to take into account the absence of reference to instances of domestic violence or reports to police prior to 2010. Ground 10 fails to make out any error of law.

9. Ground 11 is in substance an impermissible challenge to the adverse findings made by the Tribunal and seeks to re-agitate the merits. It was a matter for the Tribunal to determine what weight to give the evidence and to make findings in relation to the credibility of the parties.  Ground 11 is an impermissible invitation to the Court to revisit the merits of the matter. Ground 11 does not reflect any question of law enlivening this Court’s jurisdiction. There is no error of law as alleged in Ground 11.

10. Ground 12 is also an impermissible challenge to the adverse findings by the Tribunal on the merits. Ground 12 does not identify any relevant question of law enlivening this Court’s appellate jurisdiction. No error of law is identified as alleged in Ground 12.

11. In relation to Ground 13, the Tribunal did not make any finding as alleged. Further, the issue in relation to whether the parties were separated was a live issue between the parties of which they were aware. The question of whether the applicant was entitled or eligible to the parenting payment was the issue before the Tribunal.  The applicant had a meaningful opportunity to address that issue. Ground 13 fails to make out any denial of procedural fairness.  Ground 13 fails to make out any error of law.

12. The amended notice of appeal application is dismissed.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 9 December 2016