FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)Carrell v Mayne [2021] FedCFamC2G 162
File number(s): ADG 326 of 2019 Judgment of: JUDGE BROWN Date of judgment: 20 October 2021 Catchwords: CHILD SUPPORT – ADMINISTRATIVE LAW – application for Judicial Review – appeal from the Administrative Appeals Tribunal – nature of a Judicial Review – departure application – duty of disclosure – challenge to the findings about the income of the applicant – approach adopted by the Administrative Appeals Tribunal in accordance with the Child Support (Assessment) Act 1989 (Cth) – whether grounds of review amount to an error of law – where the applicant has been entirely unsuccessful in proceedings – application for costs order Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 3, 44AAA
Child Support (Assessment) Act 1989 (Cth) Pt 6A, ss 4, 98C, 100, 117
Child Support (Registration & Collection) Act 1988 (Cth) Pt VIIIA, s 105
Family Law Act 1975 (Cth) s 117
Federal Circuit & Family Court of Australia Act 2021 (Cth) ss 7, 214
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Sch 2, rr 22.02, 22.09
Federal Circuit Court of Australia Act 1999 (Cth) s 79.Cases cited: Apthorpe v Repatriation Commission (1987) 13 ALD 656
BKK16 & BKN16 & Anor [2017] FCCA 938
CCQ17 v Minister for Immigration & Border Protection [2018] FCA 1641
Child Support Registrar & Crabbe and Anor [2014] FamCAFC 10
Child Support Registrar & Pearce & Anor (SSAT Appeal) [2018] FamCAFC 10
Collector of Customs v Pressure Tanker Pty LtdandPazzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Htun v Minister for Immigration & Multicultural Affairs (2001) 233 FCR 136
Humphries & Berry (SSAT Appeal) [2008] FMCAfam 409
Latoudis v Casey (1990) 170 CLR 534
LDME & JMA (SSAT Appeal) (2007) 38 Fam LR 132
Luton v Lessels (2002) 210 CLR 333
Miller v Ng & Anor (No 2) [2018] FCCA 26
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration & Border Protection v Singh (2003) 231 FCR 437
Minister for Immigration & Border Protection v Stretton (2016) 237 FCR 1
Minister for Immigration & Border Protection v SZVFW (2018) 264 CLR 541
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZIAI & Anor (2009) 259 ALR 429
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Ling [1996] 185 CLR 259
Minister for Immigration & Multicultural Affairs v Al Miahi (2001) 65 ALD 141
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
Re Kirby; Ex Parte Boilermakers’ Society of Australia (1956) 94 CLR 254
Re Minister for Immigration & Multicultural Affairs: Ex Parte Applicant S20/2002 (2003) 198 ALR 59
Re Minister for Immigration & Multicultural Affairs: Ex parte Lam (2003) 214 CLR 1
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- AGLC
- Carrell v Mayne [2021] FedCFamC2G 162
- Case
- [2021] FedCFamC2G 162
- Decision Date
CaseChat Overview and Summary
In the case of Carrell v Mayne, the applicant, Mr Carrell, appealed against a decision of the Administrative Appeals Tribunal (AAT) that determined the child support payable by the mother, Ms Mayne, for their two children. The dispute arose from the assessment of the father’s income and the subsequent child support calculations. The Federal Circuit and Family Court of Australia was tasked with reviewing the AAT’s decision, focusing on whether there were any jurisdictional errors in the tribunal's approach.
The central legal issue was whether the AAT had erred in law when determining the father's income and, consequently, the child support payable. The court examined the AAT's application of the Child Support (Assessment) Act 1989 (Cth) and whether the tribunal's findings were supported by the evidence. The father argued that the AAT had miscalculated his income, which led to an incorrect child support assessment. The mother contended that the tribunal's decision was correct and that the father’s income had been appropriately assessed.
The court concluded that the AAT had not made any jurisdictional errors in its determination. The tribunal had correctly applied the legislative framework and the evidence presented. The court found no legal error in the AAT’s approach to assessing the father’s income or in its calculation of child support. Consequently, the appeal was dismissed, and the original decision of the AAT was upheld.
As part of the court's orders, the appeal was dismissed, and the applicant was ordered to pay the respondent a lump sum of costs in the amount of $5,000.00. This decision reinforces the limited scope for judicial intervention in child support assessments, emphasizing the importance of the tribunal’s role in such matters.
The central legal issue was whether the AAT had erred in law when determining the father's income and, consequently, the child support payable. The court examined the AAT's application of the Child Support (Assessment) Act 1989 (Cth) and whether the tribunal's findings were supported by the evidence. The father argued that the AAT had miscalculated his income, which led to an incorrect child support assessment. The mother contended that the tribunal's decision was correct and that the father’s income had been appropriately assessed.
The court concluded that the AAT had not made any jurisdictional errors in its determination. The tribunal had correctly applied the legislative framework and the evidence presented. The court found no legal error in the AAT’s approach to assessing the father’s income or in its calculation of child support. Consequently, the appeal was dismissed, and the original decision of the AAT was upheld.
As part of the court's orders, the appeal was dismissed, and the applicant was ordered to pay the respondent a lump sum of costs in the amount of $5,000.00. This decision reinforces the limited scope for judicial intervention in child support assessments, emphasizing the importance of the tribunal’s role in such matters.
Orders
Orders of the court
ADG 326 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR CARRELL
Applicant
AND:
MS MAYNE
First Respondent
CHILD SUPPORT REGISTRAR
Second Respondent
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
20 OCTOBER 2021
THE COURT ORDERS THAT:
1. The Notice of Appeal filed by the Applicant on 10 September 2019, amended on 12 December 2019, and further amended on 17 September 2020 be dismissed.
2. The applicant pay the second respondent a lump sum of costs fixed at FIVE THOUSAND DOLLARS ($5,000.00).
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review 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 family law proceedings.
Background
Background to the litigation
Rather, the Court’s authority to intervene arises only if it can detect a legal error in the manner in which such decision-maker has exercised the authority conferred upon it. In the jargon of lawyers, this is referred to as a jurisdictional error.BACKGROUND Mr Carrell is the father of two children – X born in 2005 and Y born in 2009.[2] Ms Mayne is the children’s mother.[3] The parties married in 2004 and separated on 18 March 2016. At the time, they lived with X and Y in suburban Adelaide. Their separation led to Family Law proceedings, in respect of both property and parenting arrangements, which have since been consensually settled. [2] Herein after referred to as ‘the father’ or ‘the applicant’.[3] Herein after referred to as ‘the mother’ or ‘the first respondent’. In terms of parenting arrangements, the parties agreed that X and Y would live predominantly with their father, in Adelaide, and would spend regular time with their mother, during school holidays, in the South East area of Queensland, where the mother had elected to relocate to pursue another relationship. In more recent negotiations, the parties have agreed for X to live with the father in Adelaide, and Y live with the mother in South East Queensland from January 2022. Child Support Assessments, in respect of X and Y, commenced on 18 May 2016. These assessments are administratively made by the Department of Human Services through its Child Support Agency.[4] In the period since, there have been numerous objections to the relevant assessments, both within the CSA and externally, including an earlier review to the AAT. [4] Herein after referred to as ‘the CSA’ or ‘the Agency’. These various objections have largely centred on issues to do with the financial circumstances of the parents; the costs of travel between Queensland and South Australia; and the special needs of the children in respect of private school education, particularly in respect of hobby and orthodontic care for X. At times relevant to the current proceedings, the CSA has recorded care arrangements for Y and X as being 73% in the care of their father and 27% in the care of their mother. Given the children’s living arrangements, this has resulted in the mother being assessed to pay child support to the father for the periods which are relevant to the current appeal, which is from April 2018 to December 2020. It is axiomatic from the three volumes of documents and the many administrative decisions made in respect of the various assessments of child support, that there have been very many controversies arising between the parties concerning how financial support is to be provided by them for X and Y. These controversies have centred on the following issues:·Whether the cost of maintaining X and Y are affected by the children’s special needs – this has primarily related to orthodontic expenses related to X, which have been incurred, whilst in her father’s care;·Whether the cost of maintaining X and Y are affected by the manner in which their parents have agreed that the children are to be educated – this relates to private school fees incurred for both children and hobby classes for X;·Whether the relevant assessment fairly reflects the income, property and financial resources of each of the parties – each of the parties asserts that this is not the case;·Whether the costs incurred by the mother in spending time with the children, primarily due to the costs of interstate travel, are high and therefore justify a departure in the mother’s child support income; and·Whether recent medical expenditure incurred by the mother, related to her treatment for breast cancer, have increased her self-support costs and therefore rendered it just and equitable to reduce her income for child support purposes.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Controversies have arisen as to what benefits the father receives from the company and trust in question and, as a consequence, what is the father’s actual level of income received by him. This is the central issue in the current matter, which relates to findings of fact made by the AAT as to the income it attributed to the father. It being the mother’s contention that the father receives significant benefits from the company and the income attributed to him, by the AAT, should stand and its finding in this regard is not one which is vitiated by legal error. The decision subject to appeal As indicated above, the AAT made the decision, which is the subject of the current appeal, on 5 August 2019. Its decision was as follows:·For the period 1 July 2017 to 31 December 2020, the father’s adjusted taxable income be fixed at $75,000.00;·For the period from 1 July 2017 to 30 June 2018, the mother’s adjusted taxable income be fixed at $64,481.00;·For the period from 1 July 2017 to 30 June 2018, the annual rate of child support payable by the mother be increased by $1,000.00;·For the period from 1 July 2018 to 31 October 2019, the mother’s adjusted taxable income be fixed at $44,700.00; and·For the period from 1 January 2020 to 31 December 2020, the annual rate of child support payable by the mother be increased by $1,000.00.The legal principles applicable to departure applications At the outset, it is important to note that the involvement of courts, such as this one, in the assessment of child support, is closely circumscribed. Fundamentally, the calculation of child support to be paid by parents in respect of the financial support of their children is an administrative matter. Essentially, the amount of financial support to be provided by parents, for their children, is calculated formulaically by the application of a legislative regime created by the Child Support (Assessment) Act 1989 (Cth) and the Child Support (Registration & Collection) Act 1988 (Cth).[6] [6] Herein after referred to as ‘the Assessment Act’ and ‘the Collection Act’ respectively. These complex pieces of legislation are supported by other legislation, related to social welfare payments, taxation matters and the like. The rationale of the child support regime is that the provision of financial support, to be provided by parents, for their children, will be uniform as a consequence of the application of a number of legislative prescribed formulae. As a consequence, it is only if a parent can demonstrate special circumstances, based on one or a number of prescribed grounds, that there should be any departure from the amount of child support flowing from the application of the applicable formulae relevant to the calculation of child support. The relevant formulae are based on a number of elements, which primarily relate to the respective incomes of the parents themselves and the extent of care, which each provides to any relevant child. The principal object of the Assessment Act is to ensure that children receive a proper level of financial support from their parents.[7] This object is supported by the following particular objects set out in section 4(2) as follows:a)that the level of financial support to be provided by parents for their children is determined according to their capacity to provide financial support and, in particular, that parents with a like capacity to provide financial support for their children should provide like amounts of financial support; and b)that the level of financial support to be provided by parents for their children should be determined in accordance with the costs of the children; and c)that persons who provide ongoing daily care for children should be able to have the level of financial support to be provided for the children readily determined without the need to resort to court proceedings; and d)that children share in changes in the standard of living of both their parents, whether or not they are living with both or either of them; and e)that Australia is in a position to give effect to its obligations under international agreements or arrangements relating to maintenance obligations arising from family relationship, parentage or marriage.[8][7] See Assessment Act, s 4(1).[8] Ibid s 4(2).
Ratio Decidendi
Legal Principle Established
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