BZR22 v BZT22
[2022] FedCFamC2G 979
Federal Circuit and Family Court of Australia
(DIVISION 2)
BZR22 v BZT22 [2022] FedCFamC2G 979
File number(s): BRG 238 of 2022 Judgment of: JUDGE TONKIN Date of judgment: 24 November 2022 Catchwords: CHILD SUPPORT – Application for leave to extend time to appeal from decision of Administrative Appeals Tribunal – leave to extend time refused – application dismissed Legislation: Administrative Appeals Tribunal Act1975 (Cth)
Child Support (Assessment) Act 1989 (Cth)
Cases cited: AYX16 v Minister for Immigration and Border Protection [2017] FCA 1037
Bedell & Kastens & Anor (SSAT Appeal)[2010] FMCAfam 1250
BVG17 v BVH17 [2019] FCAFC 17
HGMZ v Secretary, Department of Social Services [2021] FCA 280
Hunter & Child Support Registrar [2017] FamCAFC 259
Luton v Lessels [2002] HCA 13
Division: Division 2 General Federal Law Number of paragraphs: 32 Date of last submission/s: 7 November 2022 Date of hearing: 14 November 2022 Place: Brisbane Counsel for the Applicant: Appellant appeared in person Counsel for the Respondents: Appeared in person by telephone Solicitor for the Respondents: Mills Oakley ORDERS
BRG 238 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BZR22
Applicant
AND: BZT22
First Respondent
CHILD SUPPORT REGISTRAR
Second Respondent
order made by:
JUDGE TONKIN
DATE OF ORDER:
24 November 2022
THE COURT ORDERS THAT:
1.Leave to extend time to appeal is refused and the application dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order 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 110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in child support review proceedings.
IT IS NOTED that publication of this judgment under a pseudonym BZR22 v BZT22 is approved pursuant to s.110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).
REASONS FOR JUDGMENT
JUDGE TONKIN
The applicant seeks leave to proceed out of time with an appeal pursuant to section 44AAA of the Administrative Appeals Tribunal Act1975 (Cth) (“AAT Act”) from a first review decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 17 April 2020 (“AAT decision”). The applicant appeared on his own behalf as did the first respondent who appeared via telephone link. The Child Support Registrar was represented by a senior lawyer.
Background
The applicant and first respondent are separated parents of X born in 2004. X turned 18 in 2020. The applicant was but is no longer a liable parent to pay child support.
On 6 December 2018 the applicant lodged an application for a departure determination with Services Australia – Child Support. On 19 February 2019 a delegate of the Child Support Registrar determined to depart from the child support assessment for the period 1 February 2019 to 31 March 2019 setting the applicant’s adjusted taxable income at $63,000. The first respondent lodged an objection against that decision.
On 16 May 2019 an objections officer partially allowed the objection, set aside the original decision and made the following determination:
(a)For the period 6 December 2018 to 28 March 2019 the applicant’s adjusted taxable income is set at $60,000; and
(b)For the period 29 March 2019 to 31 December 2019 the applicant’s adjusted taxable income is set at $80,000.
The applicant lodged an application for first review of the objection decision in the Tribunal.
On 17 April 2020 the Tribunal set aside the objection decision and made the following departure determination:
(a)For the period 6 December 2018 to 28 March 2019 the applicant’s adjusted taxable income is varied to $68,000; and
(b)For the period 1 July 2019 to 30 June 2020 the applicant’s adjusted taxable income is varied to $58,800.
On 21 April 2020 a copy of the AAT decision was posted to the applicant.
On 3 June 2022 the applicant filed a Notice of Appeal and affidavit in support of his application for leave to extend time in which to appeal.
Leave to Extend Time
In BVG17 v BVH17 [2019] FCAFC 17 (8 February 2019) a decision of Collier, Rangiah and Perry JJ at [134] Perry J summarised the principles relevant to the exercise of discretion to grant an extension of time for an appeal as follows:
1. An extension of time will not be granted unless the Court is positively satisfied that it is proper to do so.
2. The length of the delay is a relevant factor.
3. The applicant must show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend time.
4. Any prejudice to the respondent is a material factor militating against the grant of an extension, although the absence of prejudice does not, without more, suffice to justify the grant of an extension of time.
5. The merits of the substantive appeal, if leave were granted, are properly to be taken into account.
(See e.g. BAO15 v Minister for Immigration and Border Protection[2016] FCA 214; (2016) 151 ALD 352 at [19]; Hunter Valley Developments Pty Ltd vCohen (1984) 3 FCR 344 at 348–349 (Wilcox J).)
Perry J observed at [135] that these principles overlap with those applying in an application for leave to appeal. The question whether any appeal would have reasonable prospects of success is relevant to both inquiries. He said “….in AYX16 v Minister for Immigration and Border Protection [2017] FCA 1037 that:
[9] ...it will seldom be in the interests of justice to grant an extension of time where an appeal would have little or no prospects of success, given the additional resources that would impose upon the parties and the Court, and the impact on other Court users: see by analogy in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 (MZABP (FCA)) at [62] (Mortimer J) (approved on appeal in MZABP v Minister for Immigration and Border Protection[2016] FCAFC 110 at [38]). In turn, in considering the applicant’s prospects of success on an appeal, the Court should not conduct a summary hearing of the appeal but is to “assess ‘the merits’ in a fairly rough and ready way”: Jackamarra v Krakouer[1998] HCA 27; (1998) 195 CLR 516 at [9]. In other words, the grounds should be considered on their face and examined at a “reasonably impressionistic level”; the Court should not descend into a fuller consideration of the arguments for and against each ground: see MZABP (FCA) at [62].
Reasons for Delay
In his affidavit filed on 6 June 2022 the applicant stated that he received the decision and a copy of the Tribunal’s reasons for decision in May 2020.[1] He confirmed in oral evidence during the hearing before me on 14 November 2022 that he had received the Tribunal decision in May 2020 while at the same time relying on his affidavit that “he did not recall ever receiving a copy of the decision.” He deposed in his affidavit that he was not living at the property at the time due to repairs being undertaken. Annexed to his affidavit were copies of documents. It is unclear whether that material was before the Tribunal. In any event those documents due not assist the applicant’s explanation for delay. The documents include a Company B building contract for $117,330.79 with a completion date on 6 December 2019. The Tribunal heard evidence on 19 March 2020 and determined the matter on 17 April 2020. The relevance in including those documents remains unclear.
[1] Applicant’s affidavit filed 3 June 2022 at [4]
The applicant argued that he suffered from ill health. He relied on medical certificates annexed to his affidavit for the period mid - 2019 to February 2020. No medical certificate was adduced for the period April 2020 to 3 June 2022 the period during which the applicant delayed filing his notice of appeal.
The applicant was required to lodge his appeal by 28 May 2020. The applicant for leave to extend time to appeal and the appeal simpliciter was filed two years after the expiration of the prescribed time.
During the hearing on 14 November 2022 the applicant complained about difficulties he had accessing legal advice during the Covid 19 shutdown period. He did not raise this in his affidavit in reliance on a reason for delay. He did depose that the Covid 19 pandemic impacted on his ability to undergo surgery.
The applicant deposed that he first approached lawyers on 4 August 2021. He said in submissions during the hearing that he had previously approached legal aid but they had been unable to assist him. He instructed a solicitor and on 11 October 2021 his solicitor obtained a copy of the Tribunal’s decision. He stated “I received advice from my solicitor and had to weigh up the options available to me.”
The applicant provided no adequate explanation for further delaying for a period of 12 months before commencing proceedings.
The applicant deposed in his affidavit that he would suffer hardship if his application was refused. He argued that he was unemployed and had been since February 2019 and was reliant on Centrelink payments and the financial assistance of his partner. He owned his own home but had a mortgage. He had received a $30,000 insurance payment which he applied to the mortgage. He had minimal superannuation and was unable to make any payments of child support.
The applicant argued that “the arrears of child support were generated as a result of the decision of the Tribunal which I maintain was incorrect.” The applicant’s understanding of the application for leave to extend time appeared to be misconceived. The Court discussed with the applicant that an application for leave to extend time in which to appeal did not automatically result in his appeal being heard, the appeal allowed and/or the decision of the Tribunal set aside.
Prejudice
The second respondent did not contend any prejudice to the Child Support Registrar should leave to extend time be granted though he argued and I accept that the absence of any prejudice was not a reason to grant leave extending time. I infer there is significant prejudice to the first respondent whilst ever child support arrears remain unpaid.
The Appeal
The applicant contends the Tribunal erred as follows:
(a)The Tribunal failed to give proper regard to the medical evidence as to the applicant’s earning capacity;
(b)The Tribunal erred in finding that the applicant was not justified in his decision to resign from employment on 6 February 2019 and failed to demonstrate that it was a major purpose for the resignation to affect the administrative assessment of child support;
(c)The Tribunal incorrectly regarded (sic) part of a building insurance payout claim received by the applicant;
(d)The Tribunal failed to give adequate reasons. This latter ground was not pressed.
The Law
An appeal from a first review decision of the Tribunal to the Federal Circuit and Family Court of Australia Division 2 (General Law) 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] And 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 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]:
[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).
In Luton v Lessels [2002] HCA 13; 210 CLR 333; 187 ALR 529; 76 ALJR 635 (11 April 2002) at [4] the High Court observed that the principal object of the Child Support (Assessment) Act1989 (Cth) is “to ensure that children receive a proper level of financial support from their parents. To that end, the Act provides for a level of support to be determined in accordance with legislatively fixed standards, and permits carers of children to have the level readily determined without the need to resort to court proceedings”.
In Hunter & Child Support Registrar [2017] FamCAFC 259 (30 November 2017) the Full Family Court said at [2]:
The laws of the Commonwealth attach significance to the obligation of separated parents of children to provide for their proper financial support. The important features of these laws are a set of provisions by which the liability of parents to pay child support is assessed and another set by which the payments thus assessed to be due are collected…….The Registrar is empowered, on application by a child’s carer, to assess the liability of a parent to pay child support and the process of assessment bears similarities to the way in which income tax is assessed. Once assessed the parent must pay the amount of child support to the child’s carer in accordance with the assessment (s 31 of the Child Support (Assessment) Act 1989 (Cth)).
Merits of Appeal
The applicant contends the Tribunal erred in being satisfied that (a) a ground of departure existed in accordance with section 117 (1) (b) (i) of the Child Support (Assessment) Act 1989 (Cth); and (b) it was just and equitable and otherwise proper to make the decision in accordance with section 117 (1) (b) (ii) of the Child Support (Assessment) Act 1989 (Cth).
Ground 1: The Tribunal failed to give proper regard to the medical evidence as to the applicant’s earning capacity. The applicant deposed in his affidavit filed on 3 June 2020 at [12] to [24] to suffering from ill health. He argued at [25] that he had been unable to work at all since February 2019 and was unlikely to work again in the future. He deposed at [26] that the only reason why he resigned employment on 6 February 2019 was for medical reasons. He argued that the Tribunal was “incorrect.”
During the hearing on 14 November 2022 the applicant accepted that the Tribunal considered medical evidence provided to the Tribunal member. The applicant had consulted Dr C for treatment of headaches, migraines and eyesight problems [16][3] and provided three medical reports [20]. The Tribunal considered the report of Dr D [21] and Dr E and Dr F [22] to [23] in addition to the report from Dr G [24], further treatment that was required [25] a further medical report from Dr G dated 15 November 2019 [26] and a report from his G.P. dated 18 February 2020 [27] where the doctor observed that “although BZR22 had not been able to work since January 2019 he does not expressly comment as to BZR22’s fitness to work or otherwise” [27]. The Tribunal found that “none of the medical reports …suggest BZR22 is unable to return to work [28]. Further the member found “no evidence was provided at the hearing to suggest that these symptoms adversely affected BZR22’s ability to work as a transport worker. [29].” The Tribunal found that “the evidence suggests BZR22’s decision to resign from work as a transport worker on 6 February 2019 was premature: there is no medical evidence to suggest he was unfit for work at the time [38]. The Tribunal earlier stated that BZR22’s evidence regarding resigning from his employment was confused. He initially attributed his resignation to his inability to return to work because of the effects of the severe flooding experienced in Region J about that time and where he resided in Suburb H where Company K’s business was located. [17] Evidence from an employee of Company K indicated that the floods had impacted the business for one week or possibly less and she believed BZR22 was still employed by Company K. [18] BZR22 then advised the Tribunal the reason he resigned was because he suffered from severe headaches and vision impairment rather than issues concerning the floods [18] BZR22’s medical evidence was dated 21 May 2019 after his G.P. requested X – Ray perform more tests [20]. A preliminary assessment of the merits of ground one indicates that no error of law is apparent. The Tribunal considered the medical evidence in particular where treatment was being investigated and it was open to the Tribunal to infer that the treatment was likely to be successful. I accept the submission of the lawyer from the second respondent that the applicant’s challenge relates to findings of fact open on the evidence and seeks to review the merits of a decision the applicant disagrees with.
[3] Decision of Tribunal [16] 17 April 2020
Ground two: The Tribunal erred in finding that the applicant was not justified in his decision to resign from employment on 6 February 2019 and failed to demonstrate that it was a major purpose for the resignation to affect the administrative assessment of child support.
The Tribunal found that “the evidence suggests BZR22’s decision to resign from work as a transport worker on 6 February 2019 was premature: there is no medical evidence to suggest he was unfit for work at the time [38]. The applicant originally stated he resigned due to his inability to return to work because of the effects of the severe flooding experienced in Region J about that time and where he resided in Suburb H where Company K’s business was located. [17] Evidence from an employee of Company K indicated that the floods had impacted the business for one week or possibly less and she believed BZR22 was still employed by Company K. [18] The medical evidence considered by the Tribunal indicated that the any “stroke condition” was not diagnosed until after the applicant had resigned and not until late May 2019. The evidence supported a finding that medically the applicant was not seriously debilitated as the stroke likely occurring in 2018 BZR22 was working as a transport worker for Company K. Further the condition was treatable via a stent and there was no evidence that this was unlikely to be successful. The Tribunal found there was no medical evidence that the applicant was unable to work a finding of fact open on the evidence.
The applicant contends there was no evidence before the Tribunal to support a finding that the applicant was capable of earning an income of $68,000 p.a. as a transport worker claiming that section 117 (7B) of the Assessment Act had not been addressed. The Tribunal had evidence before it that between 11 October 2018 and 6 February 2019 the applicant had earned income of $20,897. That income was annualised to arrive at the figure of $68,000 p.a. The Tribunal was not satisfied that the applicant’s decision to resign from his job as a transport worker on 6 February 2019 was justified and as such the applicant failed to demonstrate that it was not a major purpose of that decision to affect the administrative assessment of child support in relation to the child X [62].
Ground 3: The Tribunal incorrectly regarded (sic) part of a building insurance payout claim received by the applicant. It was open on the evidence for the Tribunal to be satisfied that the funds held by the applicant in a mortgage redraw facility was a financial resource and available to the applicant for child support purposes. No error of law is apparent with respect to that finding.
Conclusion
The applicant has failed to provide an adequate explanation for the delay of two years in bringing proceedings to appeal a decision of the Tribunal dated 17 April 2020. No explanation was provided by the applicant after he consulted lawyers in October 2021 wherein he delayed commencing proceedings for a further 12 months. I adopt the remarks of Perry J in AYX16 v Minister for Immigration and Border Protection [2017] FCA 1037 at [9] that “it will seldom be in the interests of justice to grant an extension of time where an appeal would have little or no prospects of success, given the additional resources that would impose upon the parties and the Court, and the impact on other Court users.” In exercising my discretion I find that the applicant has limited prospect of success on appeal. Taking into account the two year delay, the failure by the applicant to provide an adequate reason for delay, the prejudice to the first respondent with child support arrears outstanding the application for leave to extend time to appeal is refused.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Tonkin. Associate:
Dated: 24 November 2022
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