CHILD SUPPORT – Appeal – appeal from decision of Administrative Appeals Tribunal – where Child Support Registrar conceded that the Tribunal’s decision revealed an error of law – Tribunal decision set aside and remitted to be heard according to law.
1.The appeal is allowed and the decision of the Tribunal is set aside.
2.The matter is remitted to the Administrative Appeals Tribunal to be determined according to law.
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.
The Applicant appeals pursuant to section 44AAA of the Administrative Appeals Tribunal Act1975 (Cth) (“AAT Act”) from a first review decision of the Administrative Appeals Tribunal (“AAT”) dated 15 October 2020…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Bernard v Mill [2021] FCCA 1836
Case
[2021] FCCA 1836
Decision Date
CaseChat Overview and Summary
This matter concerned an appeal by Mr Bernard (the Applicant) against a decision of the Administrative Appeals Tribunal (AAT). The dispute arose in the context of child support payments between the Applicant and Ms Mill (the First Respondent), the parents of two children. The Applicant sought to exclude certain post-separation income from the child support assessment.
The central legal issue before the court was whether the AAT had erred in its determination regarding the Applicant's eligibility to exclude post-separation income under section 44(1)(d) of the Child Support (Assessment) Act 1989 (Cth). Specifically, the court needed to consider whether the Applicant had established a pattern of earning income after separation that would justify the exclusion.
Tonkin J found that the AAT had fallen into error. The Tribunal member had considered the Applicant's receipt of increased incapacity payments from the Department of Veterans' Affairs (DVA) as evidence of a new pattern of earning. However, the Applicant's case was that the actual receipt of these higher payments, which occurred after the separation, constituted the material change. The Tribunal member's reasoning, which focused on the determination of the increased payments rather than their actual receipt, was found to be inconsistent with the Applicant's submission and the underlying policy intent of the legislation, which aims to allow parents to recover financially after separation. The court applied the principle that tribunals should consider relevant government policy and the objects of the legislation.
The appeal was allowed, and the decision of the AAT was set aside. The matter was remitted to the AAT to be determined according to law.
Orders
Orders of the court
BRG 613 of 2020
BETWEEN:
MR BERNARD
Applicant
AND:
MS MILL
First Respondent
CHILD SUPPORT REGISTRAR
Second Respondent
ORDER MADE BY:
JUDGE TONKIN
DATE OF ORDER:
10 AUGUST 2021
THE COURT ORDERS THAT:
1. The appeal is allowed and the decision of the Tribunal is set aside.
2. The matter is remitted to the Administrative Appeals Tribunal to be determined according to law.
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.
Background
Background to the litigation
The Applicant contends that the AAT fell into error when determining whether the Applicant satisfied both limbs of the text under section 44 (1) (d) of the CSA Act. BACKGROUND The Applicant and First Respondent are parents of children X (born in 2015) and Y (born in 2018). The parties separated on 15 November 2018. The Applicant is the parent liable to pay child support. A child support case was registered on 20 May 2019 and the First Respondent elected to collect child support from the Applicant from that date. On 17 October 2017 the Applicant sustained an injury while on Army Reserve Service and was incapacitated for civilian work. On 7 November 2017 the Applicant applied for incapacity payments for the loss of civilian earnings due to the accepted injury. The Military Rehabilitation and Compensation Commission (“MRCC”) accepted liability for the injury and on 27 November 2017 granted the Applicant incapacity payments in the amount of $373.75 per week from 16 November 2017. On 18 December 2017 the MRCC reassessed the Applicant’s entitlement and granted him incapacity payments for loss of civilian earnings in the amount of $750 per week commencing 16 October 2017. On 1 January 2018 the Applicant sought review of the MRCC decision by the Veterans Review Board “(“VRB”). On 24 May 2018 the VRB affirmed the decision of the MRCC. On 22 June 2018 the Applicant applied for review of the decision of the VRB to the Veteran’s Affairs Division to the AAT under section 354 of the Military Rehabilitation and Compensation Act 2004 (Cth) (“MRC Act”). On 8 April 2019 the AAT determined to remit the matter to the MRCC for reconsideration. On 20 May 2019 the MRCC made a new determination and granted the Applicant incapacity payments at the rate of $1500 per week with effect from 17 October 2017. On 30 May 2019 the Applicant received a lump sum of $32,410 referrable to the decision made on 20 May 2019. REASONS FOR DECISION The Tribunal member set out the relevant legislative provision and indicated that no issue arose with respect to subparagraphs s44 (1) (a) (b) (c) finding that the Applicant and First Respondent separated in November 2018 and their separation occurred within three years of the Application. They remained separated at the date of the Applicant’s application to exclude some post separation income.[7][7] AAT Reasons for decision 15 October 2020 at [6] The Tribunal member considered that the first question for determination was whether the Applicant earned income in accordance with a pattern of earning established after the Applicant and First Respondent separated in November 2018[8]. He found that the Applicant was receiving $1500 per fortnight in DVA payments when on a successful application for review the sum was increased to $3000 per fortnight in April 2019 backdated to November 2017 (notably before he and the First Respondent separated).[9] [8] AAT Reasons for decision 15 October 2020 at [6] [9] AAT Reasons for decision 15 October 2020 at [7]
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
On 30 May 2019 the Applicant received a lump sum of $32,410 referrable to the decision made on 20 May 2019. REASONS FOR DECISION The Tribunal member set out the relevant legislative provision and indicated that no issue arose with respect to subparagraphs s44 (1) (a) (b) (c) finding that the Applicant and First Respondent separated in November 2018 and their separation occurred within three years of the Application. They remained separated at the date of the Applicant’s application to exclude some post separation income.[7][7] AAT Reasons for decision 15 October 2020 at [6] The Tribunal member considered that the first question for determination was whether the Applicant earned income in accordance with a pattern of earning established after the Applicant and First Respondent separated in November 2018[8]. He found that the Applicant was receiving $1500 per fortnight in DVA payments when on a successful application for review the sum was increased to $3000 per fortnight in April 2019 backdated to November 2017 (notably before he and the First Respondent separated).[9] [8] AAT Reasons for decision 15 October 2020 at [6] [9] AAT Reasons for decision 15 October 2020 at [7] The Tribunal member noted it was the Applicant’s case that “he considers the ‘pattern’ of his income had clearly changed after separation…..he was receiving $1500 per fortnight which increased to $3000 per fortnight which formed a ‘new pattern’”. He observed that the Applicant referred to “statistical research…….there were 85,000 compensation determinations by DVA in 2018/2019 only 500 went to the AAT. By definition of ‘ordinary’ at no time could a successful result at the AAT be considered ‘commonplace or standard’”.[10][10] AAT Reasons for decision 15 October 2020 at [8] Further he observed that the Applicant “emphasised that ‘receipt’ was paramount, the DVA had determined he had no right to the higher income. Only upon actual receipt of the higher entitlements (which occurred in June 2019) was there a material change.”[11] [11] AAT Reasons for decision 15 October 2020 at [8] The Tribunal member set out the relevant statutory provision and considered 2.5.2 of the Child Support Guide and concluded that “the Tribunal is satisfied that these passages are an accurate statement both of the law and the appropriate approach to be taken to the application of the law.” He referred to the decision in Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 noting that the Full Federal Court held “that a Tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the relevant legislation”[12]. He found that the “underlying policy intent is that in recognition of additional effort, an amount is excluded to allow a parent to ‘get back on their feet’ after the often financially detrimental impacts of separation”[13].[12] AAT Reasons for decision 15 October 2020 at [10] [13] AAT Reasons for decision 15 October 2020 at [11]