CAM22 v Child Support Registrar
[2022] FedCFamC2G 1032
Federal Circuit and Family Court of Australia
(DIVISION 2)
CAM22 v Child Support Registrar [2022] FedCFamC2G 1032
File number(s): BRG 240 of 2022 Judgment of: JUDGE TONKIN Date of judgment: 9 December 2022 Catchwords: CHILD SUPPORT – Appeal from decision of Administrative Appeals Tribunal – whether the Tribunal’s decision revealed an error of law – No error of law established – Appeal dismissed – Costs reserved pending written submissions Legislation: Administrative Appeals Tribunal Act1975 (Cth)
Child Support (Assessment) Act 1989 (Cth)
Child Support (Registration and Collection) Act 1990 (Cth)
Cases cited: Agrippa & Horton (SSAT Appeal)[2010] FMCAfam 1144
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Bedell & Kastens & Anor (SSAT Appeal)[2010] FMCAfam 1250
Carrell v Mayne [2021] FedCFamCG2 162
Child Support Registrar & Crabbe & Anor [2014] FamCAFC 10
Child Support Registrar & Crowley and Anor [2015] FamCAFC 76
Collector of Customs v Pressure Tanker Pty LtdandPazzolanic Enterprises Pty Ltd [1993] 43 FCR 280
HGMZ v Secretary, Department of Social Services [2021] FCA 280
Hunter & Child Support Registrar [2017] FamCAFC 259
Kane & Naylor & Anor [2015] FCCA 2075
Luton v Lessels [2002] HCA 13
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30
Waterford v Commonwealth [1987] 163 CLR 54
Division: Division 2 General Federal Law Number of paragraphs: 92 Date of last submission/s: 17 October 2022 Date of hearing: 24 October 2022 Place: Brisbane Counsel for the Appellant: Mr Haddrick Solicitor for the Appellant: Bhardwaj and Associate Lawyers Solicitor for the Respondents: Mills Oakley Solicitor for the Respondents: Second Respondent appeared in person ORDERS
BRG 240 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CAM22
Appellant
AND: CHILD SUPPORT REGISTRAR
First Respondent
CAP22
Second Respondent
order made by:
JUDGE TONKIN
DATE OF ORDER:
9 December 2022
THE COURT ORDERS THAT:
1.The appeal from a first review decision of the Administrative Appeals Tribunal dated 27 April 2022 is dismissed.
2.The applicant shall file written submissions as to costs within 14 days.
3.Within 28 days the first and second respondent shall file short written submissions in reply.
4.Judgment with respect to costs is reserved.
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 the pseudonym CAM22 v Child Support Registrar is approved pursuant to s 110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).
REASONS FOR JUDGMENT
JUDGE TONKIN
Introduction
By Notice of Appeal (Child Support) filed on 13 June 2022 and amended on 21 September 2022 the applicant seeks an order setting aside the decision of the AAT with the matter remitted to be heard according to law. The issue for determination is whether the AAT erred in law in finding that a ground of departure established under subsection 117 (2) of the Assessment Act in particular paragraph 117 (7B) (b) (ii) of the Child Support (Assessment) Act 1989 (Cth).
Documents
The applicant relied on the amended notice of appeal filed on 21 September 2022, outline of argument filed on 21 September 2022 and an affidavit filed by the applicant on 23 September 2022. The Registrar relied on an outline of argument filed 17 October 2022 and objected to the applicant’s affidavit filed 23 September 2022.
With respect to the application to rely on fresh evidence the parties agreed that issue should be determined at the conclusion of oral submissions. The Court accepted that course. The matter was heard on 24 October 2022 and judgment reserved. The second respondent was present during the hearing via telephone link.
Background
The applicant (father) and second respondent (mother) are separated parents of two children X born in 2008 and Y born in 2020. The father is the liable parent to pay child support.
On 9 June 2021 the mother lodged an application for a departure determination with Services Australia – Child Support (“the Agency”).
On 26 August 2021 a delegate of the Registrar made a departure determination.[1] The father lodged an objection with respect to that decision.
[1] Section 46 documents pp336 to 352
On 18 November 2021 an authorised objection’s officer partially allowed the objection and made the following departure determination:[2]
(a)For the period 1 June to 31 October 2021 the second respondent’s adjusted taxable income is varied to $83,702;
(b)For the period 1 June to 31 October 2021 the applicant’s adjusted taxable income is varied to $129,132;
(c)For the period 1 June to 31 December 2022 the applicant’s annual rate of child support is increased by $4332; and
(d)For the period 1 January to 31 December 2022 the applicant’s annual rate of child support is increased by $2700.
[2] Section 46 documents pp 2 - 20
On 17 December 2021 the applicant lodged an application for first review of the objection decision.
On 1 March 2022 the Tribunal issued directions requiring the parties to provide amongst other things full and frank disclosure of their financial circumstances by 31 March 2022. The Tribunal found that the applicant had failed to comply with the direction.[3]
[3] AAT Reasons for Decision 27 April 2022 [5]
On 27 April 2022 the Tribunal determined to set aside the objection decision and in substitution made the following departure determination:
(a)The applicant’s adjusted taxable income is varied to $159,000 from 1 June 2021 to 31 December 2022;
(b)The applicant’s annual rate of child support is increased by $5330 from 4 February 2021 to 31 December 2022; and
(c)The applicant’s annual rate of child support is increased by $6000 from 1 January 2022 to 31 December 2025.
On 14 June 2022 the applicant filed a Notice of Appeal.
The Appeal
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 27 April 2022 (“AAT decision”). Although referred to as an “appeal” the court is exercising original jurisdiction in determining the matter which is limited to a question of law.[4] The “appeal” does not constitute a re-hearing of the case on its merits. A particular question of law should be stated with sufficient precision.[5]
[4] BVG17 v BVH17 (2019) 268 FCR 448 at [2] per Collier and Rangiah JJ and [131[ per Perry J
[5] 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] to [11]:
[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).
[11] Nonetheless as Riethmuller FM noted in PJ & Child Support Registrar, [2007] FMCAfam 829 at [38], [2007] FMCAfam 829; (2007) 38 Fam LR 31, (2007) FLC 98-035:
[38] The only right of review of a decision of the SSAT is an appeal ‘on a question of law’ to the courts ... Most significantly, such an appeal does not allow for a review on the merits. As a result, it is important for the Tribunal to provide appropriate reasons. This will usually entail careful findings of fact and clear explanations of the reasons for any decision, particularly where it involves the exercise of a discretion such as altering a child support amount.
The Full Court of the Federal Court in Collector of Customs v Pressure Tanker Pty LtdandPazzolanic Enterprises Pty Ltd [1993] 43 FCR 280 said regarding appeals from decisions of the Administrative Appeals Tribunal “the nature of the task of this court is clear. It is to leave to the tribunal of fact decisions as to the facts and to interfere only when the identified error is one of law”.
In Child Support Registrar & Crowley and Anor [2015] FamCAFC 76 the Full Court of the Family Court stated at [24]:
A consequence of the confined nature of appeals from the Tribunal to the FCCA is a requirement that the grounds of appeal to that court be drawn with particular precision which bears that restriction firmly in mind.” Compliance with this prerequisite ensures the merits of a case are dealt with not by the Court but by the Tribunal a “distribution of function (which) is critical to the correct operation of the administrative review process. [6]
[6] Repatriation Commission v Owens [1996] 70 ALJR 904 at 904
In Child Support Registrar & Crabbe & Anor [2014] FamCAFC 10 at [54] the Full Court of the Family Court set out the principles that emerge from the authorities and have relevance when reviewing a decision of the Tribunal:
•The question of whether there is evidence to support a finding of fact or an inference drawn from findings of fact is a question of law (Al-Miahi[7]);
•The making of a finding of fact or the drawing of an inference in the absence of evidence is an error of law (Al-Miahi);
•A wrong finding of fact is not an error of law (Al-Miahi);
•A finding of fact based on reasoning that is “demonstrably unsound” or on an “illogical course” or a “faulty process” of reasoning is not an error of law (Al-Miahi);
•Judicial review is not to be over-zealous in seeking to find inadequacy of reasoning by an administrative decision maker; the review of the reasons of an administrative decision maker must not be turned into a reconsideration of the merits of the decision (Wu Shan Lian [8]); and
•Section 103X(3)(b) of the Registration and Collection Act (by analogy with s 430 of the Migration Act) requires the (Tribunal) to do no more than set out the findings which it did make on facts which it considered material to the decision which it made (Yusuf[9]).”
[7] Minister for Immigration and Multicultural Affairs v Al-Miahi[2001] FCA 744; (2001) 65 ALD 141
[8] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
[9] Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323
Amended notice of appeal
The applicant filed an amended Notice of Appeal on 23 September 2022 raising the following questions of law:
Question of Law
In respect of the decision of the AAT made on 27 April 2022:
(a)Was the decision made by the Tribunal in re-exercising the power under section 98C of the Assessment Act just and equitable as required by the statutory provision?
(b)Did the Tribunal take into account irrelevant considerations?
(c)Did the Tribunal have jurisdiction to make the decision that it sought to make:
(d)Did the Tribunal identify the correct issues or ask itself the correct questions?
(e)Was the decision otherwise infected with legal or jurisdictional error; and
(f)Did the Tribunal incorrectly form the view that it was satisfied that the appellant’s decision not to work, to reduce the number of hours or to change his occupation, industry or working pattern is not justified on the basis of the appellant’s state of health (as required by subsection 117 (7B) of the Assessment Act.
Grounds of Appeal
Ground 1 (a):
(1)The Tribunal incorrectly formed the view that it was satisfied that the applicant ’s decision not to work, to reduce the number of hours or to change his occupation, industry or working pattern is not justified on the basis of the applicant ’s state of health (as required by section 117 (7B) of the Child Support (Assessment) Act 1989 (Cth) (“the Act”) in that:
(a)At [42] of its reasons the Tribunal incorrectly found that it was “not satisfied that the medical report tendered is reliable”;
(b)At [42] of its reasons the Tribunal incorrectly found (and took into consideration) the view that “it is highly unusual to provide a medical certificate backdated by nine months.”
PARTICULARS
(1)There is no basis for making such a finding of fact;
(2)On the face of the medical certificate of Dr B it reveals that the applicant has been the doctor’s patient “since” 13 May 2021;
(3)On the face of the medical certificate of Dr B it reveals that the “date of onset” of the diagnosis was 13 May 2021;
(4)The medical certificate simply records the diagnosis made from the commencement of treatment;
(5)The medical certificate is not “backdated” in the sense that a certificate issued which post - dates the commencement of treatment and records the diagnosis from the commencement of treatment.
(c)At [42] of its reasons the Tribunal incorrectly found (and took into consideration) that “there are no supporting medical reports that reference the administration of any tests to establish the various diagnoses”;
PARTICULARS
(1)On the face of the medical certificate the certificate impliedly certifies that Dr B has administered such tests as the psychiatrist deems appropriate to arrive at a clinical diagnosis;
(2)On the face of the medical certificate the “tests” undertaken by Dr B were an appraisal of the “symptoms” in order to opine a “primary condition diagnosis”;
(3)Dr B’s medical certificate does not lose reliability because he (that is Dr B) has not relied upon “supporting medical reports that reference the administration of any tests to establish the various diagnoses” in opining a diagnosis.
(a)at [42] of the reasons the Tribunal incorrectly found (and took into consideration) that “there is evidence before the Federal Circuit Court to suggest that Dr B will provide false medical certificates for $500”;
PARTICULARS
(1)There was no evidence before the Tribunal that would allow the Tribunal to make such a finding of fact;
(2)The applicant is presently engaged in Family Law litigation in the Federal Circuit and Family Court of Australia (Division 2) in Judge Tonkin’s docket;
(3)There is no evidence adduced by the mother in the proceedings that “Dr B will provide false medical certificates for $500.”
(a)at [42] of the reasons the Tribunal incorrectly found (and took into consideration) that “there is no evidence to establish an ongoing relationship with the psychiatrist”;
PARTICULARS
(1)On the face of the medical certificate the applicant was the patient of Dr B “since” 13 May 2021;
(2)On the face of the medical certificate of Dr B is a Fellow of the Royal Australasian and New Zealand College of Psychiatrists;
(3)On the face of the medical certificate there is evidence to establish an ongoing relationship with the psychiatrist.
(a)at [42] of the reasons the Tribunal incorrectly found (and took into consideration) that “the diagnosis appears to have been made on the basis of a one – off appointment.”
PARTICULARS
(1)There is no basis for making such a finding of fact;
(2)On the face of the medical certificate of Dr B it reveals that the applicant has been the doctor’s patient “since” 13 May 2021 (onset of condition is recorded as having occurred on 13 May 2021);
(3)On the face of the medical certificate of Dr B it is evident that the applicant has had appointments with Dr B on at least 13 May 2022 and 16 February 2022.
(g)at [43] of the reasons the Tribunal incorrectly found (and took into consideration) that “the father has been able to manage his share portfolio and continues to engage in share trading to pursue litigation in the Federal Circuit Court and instruct his representatives in that jurisdiction, he has been able to initiate an application for a merits review and to manage his investment property without a need for a managing agent’s involvement.”
Challenge to Questions of Law
The Registrar challenged the questions of law raised by the applicant and contends that save for questions 1 (b) and 1 (f) the matters raised by the applicant failed to expose any link between the questions of law as stated, the circumstances of the particular case and orders sought on appeal.[10] The Registrar submitted that the challenge to the Tribunal’s finding that the particular departure determination was just and equitable[11] is one of fact and no question of law arises. Question 1 (a) is discussed further in the judgment.
[10] P v Child Support Registrar [2013] FCA 1312 at [51]
[11] Question of law 1 (a)
Regarding the Tribunal’s jurisdiction to make the decision[12] section 89 of the Child Support (Registration and Collection) Act 1990 (Cth) (“the Collection Act”) the Tribunal has jurisdiction to review a decision under subsection 87 (1) on an objection to a decision of the Registrar. The decision under review by the Tribunal was a decision made under subsection 87 (1) on an objection to a departure determination made by the Registrar under section 98S of the Assessment Act. The decision to make a departure determination is a decision of which an objection may be lodged with the Registrar under Item 15 of subsection 80 (1) of the Collection Act. No error of law arises with respect to the Tribunal’s jurisdiction.
[12] Question of law 1 (c)
I accept the Registrar’s submission that no issue arises[13] regarding the correct issues identified by the Tribunal and no error is apparent in the Tribunal’s reasons. The Tribunal considered whether a ground for departure existed and whether the particular departure determination was just and equitable and otherwise proper.[14]
[13] Question of law 1 (d)
[14] See Allmand v Denyer [2021] FedCFFamC2G 52 at [23]
With respect to the question whether the decision was infected with legal or jurisdictional error the applicant abandoned that issue[15] thus no error of law is established.
[15] Question of law 1 (e)
The remaining questions of law include 1 (b) and 1 (f) and 1 (a) (as argued by the applicant).
Findings of the Tribunal
On 27 April 2022 the Tribunal heard the applicants’ review of the decision of the objections officer with both parents appearing via Microsoft Teams and the Registrar not represented. The Tribunal considered the Child Support Agency’s documents [7][16] material adduced by the father (A1 to A3) and material adduced by the mother (B1 to B61).
[16] Tribunal’s reasons for decision 27 April 2022
No challenge is made by the applicant to the Tribunal’s decision at [12] to [29].
At [30] the Tribunal correctly identified the issue that “the administrative assessment does not accurately reflect the father’s income, financial resources or earning capacity.”
The Tribunal found “it is not in dispute that the father received a redundancy payment on 1 June 2021 (both parents worked for the same company and were made redundant at the same time). The applicant declared to the Agency that his “year to date income was $188,232.46 including $63,580 in a redundancy payment, $29,938 from the sale of property and $36,649 in gross rental income.” His 2020 income tax return indicated a gross salary of $158,307, he declared a net rental loss of $13,791 and other deductions of $3433 [30]. Those findings are not challenged.
The Tribunal found that the applicant was directed to provide certain financial records [31] and failed to provide those documents. The Tribunal took into consideration that the applicant’s “failure to make a full and frank disclosure of his financial circumstances is unsatisfactory and leaves him open to adverse inferences being drawn [32] Further it hinders the Tribunal’s capacity to accurately determine his income and financial resources in addition to his necessary self – support expenses.”
The Tribunal considered the applicant’s argument [33] that “the determination by the Agency was flawed, he had not completed his tax returns, he had updated the Agency about his income after being made redundant and factoring in his rental income and redundancy payment does not make allowance for his need for self – support or his rental expenses.” The applicant maintained “he did not have income to contribute to the children’s costs and his circumstances had changed he is without a job and has no capacity to work.”
The Tribunal had regard to the applicant’s evidence that he was not in receipt of income support payments but “prefers not to test his entitlement to support and instead to use what funds he has available.” He sold shares totalling $31,812.40 in July 2021 and $20,661.53 in August 2021. He did not consider those funds available as a financial resource to support the children. He had significant legal costs. He received a partial property settlement and purchased shares totalling $70,000 while the second respondent received $150,000 from a partial property settlement. He had not lodged his 2021 income tax return “but plans to do so.” [34]
The Tribunal had regard to the applicant’s contention that “he has no capacity to undertake work” noting he stated “he is highly traumatised by the circumstances surrounding the breakdown of the marital relationship and “everything is triggered.” He had been on sick leave for some time before being made redundant, such was his psychological distress. He stated “the trauma prevents him from seeking work. He attends a psychiatrist about five to six times a year. It ‘could take years’ before he has the capacity to return to work [35]
The Tribunal considered the applicant’s earning capacity and noted “it is not in dispute that the applicant was made redundant from his role in June 2021. He failed to provide evidence of what, if any, attempts he has made to secure paid employment. The Tribunal is satisfied that the applicant is not working despite ample opportunity to do so”. [37]
The Tribunal found “there is no suggestion that the applicant’s decision to decrease his work hours was justified because of his caring responsibilities. He does not dispute that he has no care of the children or others.” [38]
The Tribunal considered the following:
the applicant asserts that he is unable to work as a result of his state of health. He provided a medical certificate dated 16 February 2022 completed by [Dr B] psychiatrist. The certificate states that the applicant is unfit to work or study from 13 May 2021 to 31 December 2022 and that in order to return to work the applicant must undertake psychological and psychiatric review. [Dr B] stated that the applicant has been diagnosed with post – traumatic stress disorder, adjustment disorder with disruption in conduct and emotions, with the date of onset being 13 May 2021. His symptoms include severe anxiety, panic attacks, moderate depression, agoraphobia and social anxiety. [39]
The Tribunal noted that the applicant asserted during the hearing that he sees Dr B about five or six times a year. He also regularly attends counselling with Mr C, D Family Counselling. The Tribunal found that the applicant “has not provided any evidence of his attendance with either practitioner or a treatment plan.” [40]
The Tribunal referred to an assertion made by the second respondent that “there is evidence before the Federal Circuit Court to suggest that Dr B will provide false medical certificates for $500 and asks that the Tribunal not place any weight on the medical certificate.” The Tribunal noted the second respondent “stressed that the applicant was diagnosed with depression and anxiety in 2009 and since that time has required medication to manage his symptoms and though he has required intervention periodically he has always managed not only to remain in full time work but to increase his income. She confirmed that soon after the parents separated a temporary protection order was granted (noting that the father has since lodged a cross application) and was initially prevented from attending the workplace. The workplace accommodated the protection order by having the father work from home however he took leave until such time as he was made redundant. Her employers advised her that he refused to return to the workplace and simply kept extending his leave. She does not dispute that the marital breakdown has taken its toll on each family member’s mental health including her own and the children’s. [41]
The Tribunal concluded [42] that
after careful consideration the Tribunal is not satisfied that the medical report tendered is reliable. As a starting point in the Tribunal’s view it is highly unusual to provide a medical certificate backdated by nine months. Further there are no supporting medical reports that reference the administration of any tests to establish the various diagnoses. There is also no explanation about the father’s work capacity or with respect to a return to work plan. There is also no evidence to establish an ongoing relationship with the psychiatrist and the diagnosis appears to have been made on the basis of a one – off appointment. The certificate does not make any reference to the applicant’s history of being on antidepressants and on anti – anxiety medication for an extended period of time (since 2009) and why despite a 13 year full time work history while on these medications his functionality has now deteriorated to the level that he is incapable of undertaking any work.
The Tribunal found at [43] that the evidence of the father at hearing contradicts the medical certificate. The father advised under oath that he has been on anti – depressants and anti – anxiety medication since at least 2009. Despite this the evidence indicates until the applicant was made redundant in 2021 he was in full time and gainful employment and at a salary level higher than average and a salary that increased incrementally over time. The applicant has extensive experience in the area of his employment. Since being made redundant and despite the diagnoses the father has been able to manage his share portfolio and continues to engage in share trading to pursue litigation in the Federal Circuit Court and instruct his representatives in that jurisdiction. He has been able to initiate an application for merits review and to manage his investment property without a need for a managing agent’s involvement. This suggests that the father’s capacity to undertake close work and engage in rational decision making is not hindered by his mental health condition. In addition the father advised the senior case officer in August 2021 that he continued to seek employment which contradicts the certificate that his mental health prevents him from working at all. These contradictions were put to the father at hearing to enable him an opportunity to comment. He explained that he undertakes these activities to “distract” himself and stressed that he has applied for many jobs, he has registered with SEEK but has had only an “odd” response in return. He finds applying for jobs very “triggering.”
The Tribunal concluded that on the basis of the evidence the Tribunal “finds the certificate is generally deficient and unreliable and for the reasons stated the Tribunal apportions it little weight.” The contents of the certificate contradicted the applicant’s evidence under oath at the hearing namely his active and ongoing current attempts to secure new employment and his ability to manage a share portfolio and manage a rental property. The Tribunal concludes that the father’s decision not to work at all is not justified by the state of his mental health.” [44]
The Tribunal found that in order for the Tribunal to be satisfied that the third criterion under subsection 117 (7B) of the Act is met it is not necessary for the Tribunal to find that the applicant’s only reason for deciding to study and not to work was to affect his child support rather the applicant must show that it was not a substantial motivation. [45] The applicant states that it is merely coincidental that his change in his work arrangements coincided with the second respondent seeking child support [46].
The Tribunal found “in the circumstances where there is no apparent justification for his decision not to work and where he continues to be able to manage his legal and financial affairs the Tribunal finds that the third criterion in subsection 117 (7B) of the Act is met and that the father should be assessed in accordance with his earning capacity. [47]
The Tribunal determined the applicant’s earning capacity [48] to [49], assessed the applicant’s contribution [50] to [54] and was satisfied the conclusion reached was just and equitable and otherwise proper [55] to [57].
Relevant Statutory Provisions
The relevant statutory provision for consideration is section 117 of the Assessment Act.
Section 117 provides:
s.117 (1) Where:
(a)application is made to a court having jurisdiction under this Act for an order under this Division in relation to a child in the special circumstances of the case; and
(b) the court is satisfied:
(i)that one or more of the grounds for departure mentioned in subsection (2) exists or exist; and
(ii) that it would be:
(A)just and equitable as regards the child, the carer entitled to child support and the liable parent; and
(B) otherwise proper;
to make a particular order under this Division;
the court may make the order.
Grounds for departure order
Subsection 117 (2) provides:
s.117 (2) For the purposes of subparagraph (1)(b)(i), the grounds for departure are as follows:
(a)
(b)
(c)that, in the special circumstances of the case, application in relation to the child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child:
(i)because of the income, earning capacity, property and financial resources of the child; or
(ia)because of the income, property and financial resources of either parent; or
(ib) because of the earning capacity of either parent; or
…
Subsection 117 (7B) provides:
s.117 (7B) In having regard to the earning capacity of a parent of the child, the court may determine that the parent’s earning capacity is greater than is reflected in his or her income for the purposes of this Act only if the court is satisfied that:
(a) one or more of the following applies:
(i) the parent does not work despite ample opportunity to do so;
(ii)the parent has reduced the number of hours per week of his or her employment or other work below the normal number of hours per week that constitutes full-time work for the occupation or industry in which the parent is employed or otherwise engaged;
(iii)the parent has changed his or her occupation, industry or working pattern; and
(b)the parent’s decision not to work, to reduce the number of hours, or to change his or her occupation, industry or working pattern, is not justified on the basis of:
(i) the parent’s caring responsibilities; or
(ii) the parent’s state of health; and
(c)the parent has not demonstrated that it was not a major purpose of that decision to affect the administrative assessment of child support in relation to the child.
Applicant’s Argument
The primary issue in dispute is whether pursuant to subsection (7B) (b) (ii) of the Assessment Act the Tribunal erred in determining that it was satisfied that the applicant’s “decision not to work, to reduce the number of hours, or to change his or her occupation, industry or working pattern is not justified on the basis of the parent’s state of health.” The applicant argued that the Tribunal erred in the conclusion it reached and challenged the Tribunal’s finding on a number of secondary facts to support that conclusion including that the Tribunal was “not satisfied that the medical report tendered is reliable” [42] a finding the applicant contends was not open on the evidence. Further the applicant contends the Tribunal erred in taking into account irrelevant considerations and made findings that were legally unreasonable.
Regarding the Tribunal’s finding [42] that “there is no evidence to establish an ongoing relationship with the psychiatrist” the applicant argued that the medical certificate[17] indicated the applicant had been a patient of Dr B “since” 13 May 2021 the “date of onset” of the diagnosis and remained a patient at least until 16 February 2022. The applicant’s evidence was that he had been on sick leave for some time before being made redundant [35] and stated “the trauma prevents him from seeking work. He attends a psychiatrist about five to six times a year [40]. It ‘could take years’ before he has the capacity to return to work.”
[17] Exhibit 2 to the applicant’s affidavit sworn 21 September 2022
The applicant contends it was not open on the evidence for the Tribunal to find that the medical certificate was “backdated” [42] nor to find that “the diagnosis appears to have been made on the basis of a one – off appointment”. At least two appointments were identified 13 May 2021 and 16 February 2022 and the applicant’s evidence contradicted that finding.
The applicant argued that the Tribunal’s finding that “there are no supporting medical reports that reference the administration of any tests to establish the various diagnoses” was an irrelevant consideration and was used by the Tribunal to support an inference that the medical report was unreliable. The applicant contends it was impermissible for the Tribunal to reason that the report was unreliable because it failed to be accompanied by other documents (or other medical reports) or failed to be corroborated by other medical reports. It is the applicant’s contention that the medical certificate impliedly certified that Dr B administered such tests as a psychiatrist deemed appropriate to arrive at a clinical diagnosis and those tests were an “appraisal of the ‘symptoms’ in order to opine a ‘primary condition diagnosis.’”
The applicant submits that the Tribunal’s finding that “there is evidence before the Federal Circuit Court to suggest that Dr B will provide false medical certificates for $500 and asks that the Tribunal not place any weight on the medical certificate” [42] was a serious allegation based on a bare assertion that the author of the medical report engaged in fraudulent practices a finding which required credible evidence to the Briginshaw[18] standard. As such the finding was legally unreasonable.
[18] Briginshaw
The applicant argued that the Tribunal incorrectly took into consideration [43] that “the father has been able to manage his share portfolio and continues to engage in share trading to pursue litigation in the Federal Circuit Court and instruct his representatives in that jurisdiction, he has been able to initiate an application for a merits review and to manage his investment property without a need for a managing agent’s involvement.”
The applicant contends that the Tribunal erred in finding that the medical report was inconsistent with the applicant’s evidence. Dr B indicated in his report that the applicant had been unfit for work or study from 13 May 2021 and was currently unfit for work or study likely to extend to 31 December 2022 and could not currently undertake his usual work or study nor do any other work for 8 hours or more per week. The applicant contends there was no medical evidence that the applicant could not work for some period less than 8 hours per week.
The applicant submitted that the secondary facts as found by the Tribunal were not open on the evidence and were legally unreasonable exercises of discretionary fact finding powers and not findings that could be used to infer that Dr B’s medical report was unreliable. In Kostas[19] four justices of the High Court said “a Tribunal that decides a question of fact when there is “no evidence” in support of the finding makes an error of law. What amounts to material that could support a factual finding is ultimately a question for judicial decision. It is a question of law.”
[19] Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 at 418 [91]
In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 359 – 60 Mason CJ said “…a finding of fact will…be reviewable on the ground that there is no probative evidence to support it and an inference will be reviewable on the ground that it was not reasonably open on the facts which amounts to the same thing.” The applicant argues there was no probative evidence to support the finding of fact that the medical certificate was unreliable and it is open to the Court to consider whether the decision maker gave disproportionate weight to some factor or reasoned illogically or irrationally and that the conclusion reached by the decision maker was unreasonable. See Minister for Immigration and Citizenship v Li [2013] HCA 18 at [30].
In Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [84] the Court said:
“[84] …legal unreasonableness is invariably fact dependent and requires a careful evaluation of the evidence. That is, assessment of whether a decision was beyond power because it was legally unreasonable depends on the application of the relevant principles to the particular factual circumstances of the case, rather than by way of an analysis of factual similarities or differences between individual cases. Where reasons are provided, they will be a focal point for that assessment. It would be a rare case to find that the exercise of a discretionary power was unreasonable where the reasons demonstrated a justification for that exercise of power.”
The applicant contends that the Court should find that the Tribunal’s fact finding exercise under subsection 117 (7B) (b) (ii) of the Act is infected with legal error and remit the matter to the Tribunal to be determined according to law.
Registrar’s Argument
The Registrar argued the issue for determination was whether the state of the applicant’s health impacted on his earning capacity to justify his decision not to work, to reduce the number of hours he worked or to change his occupation, industry or working pattern and contends that there was an immutable obligation[20] on each party before the Tribunal to assist the enquiry by providing reliable and truthful evidence about their financial circumstances, in providing that evidence in a manner readily understood and in making a full disclosure of all relevant documents (subject to privilege) including documents that may have an adverse impact on their case. The applicant in failing to comply with the Tribunal’s directions to produce specific documents relating to his financial affairs including “evidence of all resume and job applications lodged and any responses [31] did so at his own peril. In those circumstances it was not the responsibility of the decision maker to protect the applicant from the consequences of such behaviour[21] which may include making adverse findings against the non – disclosing party.
[20] Carrell v Mayne [2021] FedCFamC2G 162 at [95]
[21] Henriques & Hatzis & Anor (SSAT Appeal) [2014] FCCA 1194 at [185]
The Registrar submitted that the Tribunal gave cogent reasons for finding that it was not satisfied the medical certificate was reliable [42] to [44] and in finding that the applicant’s decision not to work was not justified on the basis of the state of his health. The Registrar contends that the Tribunal was entitled to accept, reject or give weight to the evidence before it as it considered appropriate in all the circumstances. The Tribunal placed weight on the applicant’s own evidence that he engaged in “active and ongoing current attempts to secure new employment and his ability to manage a share portfolio and manage a rental property” [44] during the period he was allegedly “unfit to work” as stated in the medical certificate. Those contradictions were put to the applicant and he was given an opportunity to respond [43]. The finding that the applicant’s own evidence contradicted the medical certificate was open on the evidence. The Registrar observed that the Court in Crabbe (supra) at [90] stated “there could be no criticism of the Tribunal for rejecting the doctor’s evidence on the basis that it considered that such evidence was in conflict with the applicant’s own evidence.”
The Registrar contends that the applicant misrepresents ground 1 (d) and notes that while the Tribunal recorded the second respondent’s evidence where she alleged that Dr B produced false medical certificates [41] at no point in the reasons did the Tribunal make a finding of fact that it accepted that evidence. The Registrar opposed the applicant’s reliance on fresh evidence in which he alleged he was denied procedural fairness in not being given an opportunity to respond to the allegation in circumstances where the applicant had failed to rely on the transcript of the Tribunal’s proceedings in the current appeal.
Regarding ground 1 (e) the Registrar contends that the Tribunal’s reasons must be read in context and as a whole and argued that it was open to the Tribunal to form the view that there was no evidence of an ongoing relationship between the applicant and the psychiatrist and even if that were not so, there was no error of law in making a wrong finding of fact.
The Registrar contends the Tribunal made no specific finding that the diagnosis appeared to have been made on the basis of a one – off appointment. If it was a finding the Registrar argued it was open to the Tribunal on the face of the medical certificate given the medical certificate recorded the date of onset of the applicant’s diagnosis as the same date he commenced as a patient of Dr B being 13 May 2021.
The Registrar contends that the applicant raised a new ground of appeal in argument asserting that the Tribunal’s finding that the medical certificate was not reliable “was legally unreasonable and irrational and illogical.”
The Registrar relied on the decision in Carrell v Mayne (supra) where Judge Brown discussed the relevant authorities in the context of a child support appeal under section 44AAA at [120] to [121] as follows:
...an inherent requirement of the exercise of any power conferred on an administrative decision maker such as the AAT is that such power be exercised reasonably and if it is not so exercised it amounts to a failure of jurisdiction. To be exercised reasonably it must be possible to glean from the relevant decision record an evident and intelligible justification for the pertinent decision in question. Referring to the decision in Minister for Immigration and Citizenship v Li His Honour Gageler J said:
Implication of unreasonableness as a condition of the exercise of a discretionary power conferred by statute is no different from implication of unreasonableness as a condition of an opinion or state of satisfaction required by statute as a prerequisite to an exercise of a statutory power or performance of a statutory duty. Each is a manifestation of the general and deeply rooted common law principle of construction that such decision making authority as is conferred by statute must be exercised according to law and to reason within limits set by the subject matter, scope and purpose of the statute.
In Carrell v Mayne (supra) at [126] Brown J observed that in Minister for Border Protection v Singh the Court said that “relevant authority makes clear that ‘the level of illogicality or unreasonableness necessary to have found jurisdictional error must be ‘extreme’ not merely a situation where the minds of potential decision makers might differ as to the issue in question.” The Registrar contends in this matter no error is apparent arguing that the decision falls within the relevant range of possible outcomes.
The Registrar submits that even if there was an error in the multitude of factual findings there is no error of law in the Tribunal making a wrong finding of fact. Further the Registrar disputes that the Tribunal’s decision is infected with illogicality, irrationality and unreasonableness but rather contends the appeal is an impermissible merits review and as such the appeal should be dismissed.
Consideration
The nature of the decision under review by the Tribunal was an application for a departure determination made under section 98B of the Child Support (Assessment) Act1989 (Cth) (“the Assessment Act”). The power to make a departure determination is conditioned upon the decision maker finding that a ground of departure is established under subsection 117 (2) of the Assessment Act and if so what particular departure determination under section 98S of that Act is just and equitable within the meaning of subsection 117 (4) of the Assessment Act and otherwise proper within the meaning of subsection 117 (5) of the Assessment Act.[22]
The nature of the task on appeal is to leave to the tribunal of fact decisions as to the facts and to interfere only when the identified error is one of law: Collector of Customs v Pressure Tanker Pty LtdandPazzolanic Enterprises Pty Ltd [1993] 43 FCR 280.
[22] Yip v Wreford (2015) 52 Fam LR 159; Jarman v Glenham [2022] FedCFamC2G 733 at [72] – [73]
The scope and purpose of the legislation is considered when determining whether error has been established. 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)).
It is apparent that the Tribunal was well aware of the applicable principles in determining the application for review and took the correct approach. In reviewing the departure determination decision the Tribunal considered whether in the special circumstances of the case the costs of maintaining the children were significantly affected because the children were being cared for, educated or trained in the manner that was expected of the children’s parents (ss117 (2) (b) (ii). No challenge is made to that finding. [17]
The Tribunal considered as it was required to do the grounds for departure and whether in the special circumstances of the case the administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the applicant for the children because of the income, property and financial resources of either parent or either parent’s earning capacity.
In assessing the applicant’s income, property and financial resources the Tribunal took into account the fact that the applicant had failed to comply with production of documents to the Tribunal that included completion of the statement of financial circumstances form, his 2021 income tax return and assessment notice, statements of his financial accounts from 1 November 2021 to 28 February 2022 for all financial institutions, bank statements evidencing the payment of his redundancy, valuation, earnings and dividends from and transfer of all shares for the period 1 July 2021 and 28 February 2022, evidence of all resume and job applications lodged and responses between 1 May 2021 and 28 February 2022 and a submission whether a departure period should extend beyond 31 December 2022. The Tribunal was satisfied that the applicant intentionally[23] failed to provide specific financial and other relevant documents as directed by the Tribunal [3] and concluded that the applicant’s failure to provide full and frank disclosure was unsatisfactory and “leaves him open to adverse inferences being drawn”[24] [32] The Tribunal took into account the fact that the applicant had access to funds of about $50,000 and a partial property settlement of $70,000 which the applicant did not consider were a financial resource available to contribute to the support of his children. The Tribunal then proceeded to determine the matter on the evidence available. [34]
[23] Tribunal’s reasons for decision at [8]
[24] Barber & Barber [2008] FMCA fam 209
In assessing the applicant’s earning capacity the Tribunal was required to be satisfied that only one or more of the following applied i.e. the parent does not work despite ample opportunity to do so; the parent has reduced the number of hours per week of his or her employment or other work below the normal number of hours per week that constitutes full-time work for the occupation or industry in which the parent is employed or otherwise engaged; the parent has changed his or her occupation, industry or working pattern. Once satisfied that one or more condition was met the Tribunal was required to be satisfied that the applicant’s decision not to work was not justified on the basis of the state of his health and that he had not demonstrated that it was not a major purpose of his decision not to work to affect the administrative assessment of child support.
There was no dispute that both parties had been made redundant from the same company the applicant in June 2021. The Tribunal found that the applicant failed to provide any evidence as directed about what if any attempts he had made to secure paid employment [37] and had extensive experience in the area of his employment. [43] Having considered the applicant’s ability to manage his share portfolio, engage in share trading, pursue litigation, manage his rental property and undertake a merits review the Tribunal was satisfied that he had capacity to “undertake close work and engage in rational decision – making not hindered by his mental health condition.” [43] That finding was open to the Tribunal on the evidence. I am not satisfied an error is established.
The applicant challenged the Tribunal’s finding that the applicant’s decision not to work at all was not justified by the state of his mental health [44]. The applicant gave evidence to the Tribunal that he “he had no capacity to undertake work” and “is highly traumatised by the circumstances surrounding the breakdown of the marital relationship and “the trauma prevents him from seeking work and “It ‘could take years’ before he has the capacity to return to work [35]. The Tribunal raised with the applicant that he had told the senior case officer in August 2021 that he continued to seek employment. In response the applicant told the Tribunal “he has applied for many jobs, he has registered with SEEK but has had only an “odd” response in return. He finds applying for jobs ‘triggering.’” He had not complied with the direction to provide evidence of evidence of “all resume and job applications lodged and responses between 1 May 2021 and 28 February 2022.”
The Tribunal found that the applicant’s testimony contradicted the medical certificate that he was “currently unfit for work or study likely to extend to 31 December 2022 and could not currently undertake his usual work or study nor do any other work for 8 hours or more per week.” The inconsistency in the applicant’s evidence was raised with him during the Tribunal hearing. The transcript of proceedings before the Tribunal was not adduced to take issue with that finding.
The evidence regarding the applicant’s state of health justifying his decision not to work included the medical certificate from Dr B psychiatrist dated 16 February 2022 considered by the Tribunal [39] and his oral testimony. The Tribunal was entitled to express an opinion that “it is highly unusual to provide a medical certificate backdated by nine months.” I accept the Tribunal took into consideration when weighing up the evidence that there were no supporting medical reports that referenced the administration of any tests to establish the various diagnoses. [42] The Tribunal took into account that the certificate was silent on a return to work plan [42] even though the applicant gave evidence of his attempts to secure employment and his plan to return to work.
The applicant challenged the finding by the Tribunal that there was no evidence to establish an ongoing relationship with the psychiatrist and the diagnosis appears to have been made on the basis of a one – off appointment. The Tribunal noted that the applicant asserted during the hearing that he sees Dr B about five or six times a year and “regularly attends counselling with Mr C, D Family Counselling” observing that “he has not provided any evidence of his attendance with either practitioner or a treatment plan” [40]. I infer that the Tribunal did not accept the applicant’s evidence regarding his engagement with treating practitioners concluding there was no evidence to establish an ongoing relationship with the psychiatrist. The applicant gave evidence under oath that he had been on anti – depressants and anti – anxiety medication since at least 2009 and despite this he remained in full time and gainful employment and at a salary level higher than average and a salary that increased incrementally over time until he was made redundant. The evidence before the Tribunal indicated the applicant had seen Dr B on two occasions nine months apart in May 2021 the second occasion just prior to the Tribunal hearing in February 2022. The medical report made no reference to the applicant’s history of being on antidepressants and on anti – anxiety medication for an extended period of time (since 2009) and why despite a 13 year full time work history while on medication his functionality had deteriorated to the level where he was incapable of undertaking any work. I am satisfied that it open to the Tribunal to find there was no probative (or sufficient) evidence to establish that the applicant had an ongoing relationship with the psychiatrist and no error is apparent. The finding of fact that there was “no evidence” in that regard in my view does not amount to an error of law.
The statement by the Tribunal that the “diagnosis appears to have been made on the basis of a one – off appointment” is supported on the face of the medical certificate in that the onset of multiple diagnoses was said to have occurred on 13 May 2021 the date the applicant first engaged with Dr B.
The applicant contends it was not open for the Tribunal to find that his mental health prevented him from working “at all.” I am satisfied to the contrary. The applicant told the Tribunal at one point “he had no capacity to undertake work.” He was not working at all at the time of the Tribunal hearing. Given that he failed to comply with the direction to produce evidence of any capacity to work and given the issue of working less than 8 hours a week was not agitated before the Tribunal the finding that the applicant’s decision not to work “at all” was open on the evidence. There was nothing in the medical certificate that stated the applicant had any present capacity to work. The certificate indicated he would continue to be unfit for work until 31 December 2022. The medical certificate did not address the applicant returning to work in the future nor his capacity to perform work (whether more or less than 8 hours). The certificate indicated that the applicant required regular reviews by a mental health practitioner. The Tribunal considered a multitude of facts and inferences in reaching a conclusion that the medical certificate was “generally deficient and unreliable.” I am not satisfied an error has been established.
Having regard to the evidence as a whole concerning the state of the applicant’s health as the justification for the applicant not working the Tribunal gave sound reasons. The Tribunal found there was no explanation about the applicant’s work capacity or with respect to a return to work plan. The medical report made no reference to the applicant’s history of being on antidepressants and the fact that he had continued to work during that 13 year period full time. The applicant’s evidence about his employability in particular his recent attempts to find employment was not reflected in the medical certificate nor was there any mention of any plan to return to work (whether 8 hours or less). I am satisfied it was open for the Tribunal to find that the applicant’s decision not to work at all was not justified by the state of the applicant’s mental health.
As the contention that the Tribunal made a finding of fact with respect to the serious allegation raised against Dr B by the second respondent that the doctor produced false medical certificates [41] at no point in the reasons did the Tribunal make a finding of fact or indicate that it accepted the second respondent’s evidence in that regard. The reasons why the Tribunal found the medical report unreliable and apportioned little weight to the medical report are set out above.
Further Evidence
With respect to the application for leave to adduce further evidence the applicant seeks to put before the Court further evidence including further medical evidence not before the Tribunal and an assertion that he was denied procedural fairness in that the Tribunal failed to give him an opportunity to be heard regarding the allegation made by the second respondent that the doctor provided false medical certificates for $500. Firstly I do not accept that the Tribunal made a finding with respect to the second respondent’s assertion. Secondly the applicant failed to tender the transcript of proceedings before the Tribunal which was likely to address the procedural fairness issue. Thirdly as the applicant was reliant on the state of his health with respect to his decision not to work it was incumbent upon him to adduce all relevant medical evidence before the Tribunal which he failed to do.
In Kane & Naylor & Anor [2015] FCCA 2075 Judge Cassidy referred to the decision in Waterford v Commonwealth [1987] 163 CLR 54 at [28] where the Court held that evidence may not be received under subsection 44(8) of the AAT Act (analogous to section 110G (2) of the Collection Act for the purpose of demonstrating that the Tribunal made an error or errors of act. The Court said
the error of law which an applicant must rely on to succeed must arise on the facts as the Tribunal has found them to be or it must vitiate the findings made or it must have the Tribunal to omit to make a finding it was legally required to make. There is no error of law simply in making a wrong finding of fact. Therefore an appellant cannot supplement the record by adducing fresh evidence merely in order to demonstrate an error of fact.
Leave to adduce further evidence contained in the applicant’s affidavit sworn 21 September 2022 is refused.
The applicant argued that the Tribunal’s findings were legally unreasonable. The Registrar contends and I accept that no application was made for leave to amend the notice of appeal to argue the new ground. Be that as it may in Minister for Immigration and Citizenship v Li [2013] HCA 18 French CJ said:
[23] …Every statutory discretion is confined by the subject matter, scope and purpose of the legislation under which it is conferred. Where the discretion is conferred on a judicial or administrative officer without definition of the grounds upon which it is to be exercised then ‘the real object of the legislature in such cases is to leave scope for the judicial or other officer who is investigating the facts and considering the general purpose of the enactment to give effect to his view of the justice of the case.
That view, however, must be reached by a process of reasoning.
At [27] the Court said
In Wednesbury Corporation, Lord Greene MR observed that the word "unreasonable" in administrative law was used to encompass failure by a decision-maker to obey rules requiring proper application of the law, consideration of mandatory relevant matters and exclusion from consideration of irrelevant matters:
‘If he does not obey those rules, he may truly be said, and often is said, to be acting 'unreasonably'.’
That kind of unreasonableness may be taken to encompass unreasonableness from which an undisclosed underlying error may be inferred
French CJ concluded as follows:
[30] The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker. Gleeson CJ and McHugh J made the point in Eshetu that the characterisation of somebody's reasoning as illogical or unreasonable, as an emphatic way of expressing disagreement with it, ‘may have no particular legal consequence.” As Professor Galligan wrote:
The general point is that the canons of rational action constitute constraints on discretionary decisions, but they are in the nature of threshold constraints above which there remains room for official judgment and choice both as to substantive and procedural matters. In other words, within the bounds of such constraints, different modes of decision-making may be employed.’
A distinction may arguably be drawn between rationality and reasonableness on the basis that not every rational decision is reasonable. It is not necessary for present purposes to undertake a general consideration of that distinction which might be thought to invite a kind of proportionality analysis to bridge a propounded gap between the two concepts. Be that as it may, a disproportionate exercise of an administrative discretion, taking a sledgehammer to crack a nut may be characterised as irrational and also as unreasonable simply on the basis that it exceeds what, on any view, is necessary for the purpose it serves. That approach is an application of the principles discussed above and within the limitations they would impose on curial review of administrative discretions.
Further in Minister for Immigration and Citizenship v Li [2013] HCA 18 Gageler J said:
[105] It is, of course, true that, as a measure in fact of time, space, quantity and conduct, reasonableness is a concept deeply rooted in the common law: and so, in such cases, is the power of a court to say whether a particular decision of that fact is or is not within the bounds of reason. Review by a court of the reasonableness of a decision made by another repository of power ‘is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process’ but also with ‘whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
I am not satisfied that the Tribunal’s decision was legally unreasonable. I reject the contention that the Tribunal’s decision was a “disproportionate exercise of an administrative discretion.” I reject the applicant’s contention that in making the departure determination the Tribunal was “taking a sledgehammer to crack a nut.”
Conclusion
As discussed by Halligan FM’s in Agrippa & Horton (SSAT Appeal)[2010] FMCAfam 1144 at [10] to [11]:
[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).
[11] Nonetheless as Riethmuller FM noted in PJ & Child Support Registrar, [2007] FMCAfam 829 at [38], [2007] FMCAfam 829; (2007) 38 Fam LR 31, (2007) FLC 98-035:
[38] The only right of review of a decision of the SSAT is an appeal ‘on a question of law’ to the courts ... Most significantly, such an appeal does not allow for a review on the merits. As a result, it is important for the Tribunal to provide appropriate reasons. This will usually entail careful findings of fact and clear explanations of the reasons for any decision, particularly where it involves the exercise of a discretion such as altering a child support amount.
I am satisfied that the Tribunal applied the relevant statutory provisions, provided carefully considered findings of fact, clear explanations and detailed reasons for its determination. The Tribunal was dealing with a first review of a departure determination under the Assessment Act. The principal object of the Act is to ensure children receive a proper level of financial support from their parents. The applicant failed to produce relevant financial documents as directed by the Tribunal to assist the Tribunal in its enquiry regarding the income, property, financial resources of each of the parents. In addition the applicant failed to produce any documents as directed by the Tribunal with respect to his earning capacity and applications for employment. His evidence about his earning capacity and employment was both inconsistent and contradicted the medical evidence relied on. The Tribunal determined the applicant’s earning capacity [48] to [49], assessed the applicant’s contribution [50] to [54] and was satisfied the conclusion reached was just and equitable and otherwise proper [55] to [57].
No error of law is established. The appeal is dismissed.
The first respondent seeks an order for costs. The applicant has not addressed the issue of costs. Directions are made for filing written submissions with respect to costs and the costs judgment is reserved pending written submissions.
I certify that the preceding ninety-two (92) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Tonkin. Associate:
Dated: 9 December 2022
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