Bell v Burke

[2019] FCCA 1753

FEDERAL CIRCUIT COURT OF AUSTRALIA

BELL v BURKE & ANOR [2019] FCCA 1753

Catchwords:
CHILD SUPPORT – Appeal of decision of Administrative Appeals Tribunal - interim application of Appellant dismissed – Second Respondent’s costs of the application reserved to final hearing of appeal.

Appellant: MR BELL

First Respondent: MS BURKE

Second Respondent: CHILD SUPPORT REGISTRAR

File Number: BRG 277 of 2019

Judgment of: Judge Cassidy

Hearing date: 13 May 2019

Date of Last Submission: 13 May 2019

Delivered at: Brisbane

Delivered on: 26 June 2019

REPRESENTATION

For the Appellant: Self-represented

For the First Respondent: Self-represented

Solicitors for the Second Respondent: Mills Oakley Lawyers

ORDERS

1. That the Appellant’s interim application, as set out in the Amended Notice of Appeal filed 30 April 2019, be dismissed.

2. That the Child Support Registrar’s costs are reserved to 19 August 2019.

IT IS NOTED that publication of this judgment under the pseudonym Bell v Burke & 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 BRISBANE

BRG 277 of 2019

MR BELL

Appellant

And

MS BURKE

First Respondent

And

CHILD SUPPORT REGISTRAR

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The Appellant in this appeal seeks the following interim orders:

   “2. That the Notice to Admit Facts, of the financial resources of the First Respondent filed on the 14 April 2019 and which has not been responded to as per the mandatory 14-day response period, be admitted as fact and accepted as further evidence.

   3. The grounds for admission of this are provided at Paragraphs 31 to 38 below.”

   These are set out in his Amended Notice of Appeal, filed 30 April 2019.

2. The Appellant at paragraphs 31 to 38 of his Notice of Appeal (Child Support), argues the error of law that supports the Notice to Admit Facts as:

   “31. With respect to reason 8A, the Member failed to inquire as to the First Respondent’s financial resources.

   32. The member failed to consider the case law on duty of inquiry by the AAT, particularly the case provided to the Member being: Voss v Child Support Registrar & Anon (SSAT Appeal) 2009 FMCfam 1296. In that case Reithmuller FM stated:

   “It appears that the Tribunal did not enquire into or identify the nature of these ‘allowable deductions.’”

   33. The High Court frequently acknowledges the different character of tribunal and judicial proceedings, particularly the ability of tribunals, like the AAT, to make enquiries and to investigate.

   34. The Applicant made a full and frank disclosure of his financial circumstances.

   35. However, the First Respondent did not make a full and frank disclosure of her financial circumstance. In particular, the First Respondent did not provide details of assets in which she has a financial interest, particularly those that are in the name or control of her husband.

   36. Furthermore, the Member drew an inference which was not open on the primary facts, being that the Applicant had realised assets (real estate converted to cash) available to him as a result of recent property settlement with his former spouse, without considering the similar contingent assets (also real estate) that the First Respondent has an interest in.

   37. Henceforth, the reason for my application to admit additional evidence for the final hearing.

   38. Consequently, the Member could not and should not have found weight in the disproportionate interest of assets.”

Background

1. The Appellant and the First Respondent are the parents of [X] and [Y]. A child support case was registered with the Department of Human Services – Child Support (“the CSA”) in 2008.

2. The child [Y] is being educated at School A.

3. The Administrative Appeals Tribunal decision (“the decision”), recorded at paragraph 14:

   “14. …In summary the children are being educated in a manner that was expected by the parents and the associated tuition fees significantly affect the costs of maintaining those children. The [first respondent] is paying those fees. Those circumstances as a whole constitute special circumstances. Reason 3 is established.”

4. The decision in considering whether a departure was just and equitable notes at paragraph 30:

   “30. The proposed decision will increase [the Appellant’s] child support arrears by approximately $800 and will require him to pay a current rate of child support of approximately $14,300 per annum. He has the capacity to pay those arrears and that rate of child support and it is appropriate that he do so. The proposed decision will be just and equitable.”

5. The decision was determined to be otherwise proper because:

   “Parents rather than the community have the primary duty to maintain a child. Neither parent receives family tax benefit in respect of their care of the children. The proposed decision will be otherwise proper.”

The Appellant’s submissions

1. The Appellant argued that these facts need to be admitted to demonstrate that an error of law existed in that the decision maker came to a decision about the mother’s income or property without the relevant evidence.

2. The Appellant further argued that the Court would need this evidence if the appeal was successful and the Court was to rehear the matter rather than submitting it to the original decision makers.

Discussion

1. As to any rehearing, I do not consider it is appropriate to allow the interim application on the basis the appeal may be successful. The proper time for an order in relation to a rehearing of the issues is at the conclusion of the appeal and on the basis the appeal has succeeded.  

2. The second submission is that the decision maker made the decision without evidence in relation to the mother’s income or property. This error can only be demonstrated by relying on the text of the decision, the transcript and the documents that were available to the decision maker.

3. For those reasons I will dismiss the Appellant’s interim application.

Costs

1. The Child Support Registrar’s costs are reserved to the hearing of the appeal.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Cassidy

Date: 26 June 2019