CAM22 v Child Support Registrar

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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…

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Details
Case
[2022] FedCFamC2G 1032
Decision Date

CaseChat Overview and Summary

In this case, the father (applicant) appealed a decision by the Administrative Appeals Tribunal (AAT) regarding a departure determination made under the Child Support (Assessment) Act 1989 (Cth). The AAT had reviewed an initial departure determination made by a delegate of the Registrar and subsequently varied the father's adjusted taxable income and increased his annual rate of child support. The father argued that the AAT's decision was legally unreasonable and sought to adduce further evidence to support his appeal. The central legal issue was whether the AAT's decision was legally unreasonable and if the father could introduce new evidence to support his case.

The court held that the AAT's decision was not legally unreasonable. The AAT had applied the relevant statutory provisions, provided carefully considered findings of fact, and clear explanations for its determination. The court emphasized that the AAT's task was to determine whether the special circumstances of the case meant the costs of maintaining the children were significantly affected. The court noted that the father had failed to produce relevant financial documents and his evidence about his earning capacity and employment was inconsistent and contradicted the medical evidence. The court concluded that the AAT's decision was within the scope of its discretion and was not disproportionate or unreasonable. The appeal was dismissed, and directions were made for filing written submissions regarding costs.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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]

Evidence

Evidence Before The Court

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 inferredFrench 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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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]