CEN23 v Child Support Registrar
[2024] FedCFamC2G 1442
•23 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CEN23 v Child Support Registrar [2024] FedCFamC2G 1442
File number: PEG 195 of 2023 Judgment of: JUDGE LADHAMS Date of judgment: 23 December 2024 Catchwords: ADMINISTRATIVE LAW – Child support – judicial review of a decision of the Administrative Appeals Tribunal regarding a departure determination – whether the Tribunal failed to afford the applicant procedural fairness, failed to consider relevant considerations, misapplied the law or acted unreasonably in varying the applicant’s adjusted taxable income to take into account a lump sum compensation payment he received – whether the Tribunal failed to understand the implementation of its decision in a manner that went to its jurisdiction – whether the Tribunal misunderstood or misapplied relevant legislation – no error of law established – notice of appeal dismissed. Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44AAA
Child Support (Assessment) Act 1989 (Cth) ss 43, 98F, 98S, 112, 117
Cases cited: Ladd & Child Support Registrar & Anor (SSAT Appeal) [2010] FMCAfam 23
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
P v Child Support Registrar (2014) 225 FCR 378; [2014] FCAFC 98
Division: Division 2 General Federal Law Number of paragraphs: 61 Date of hearing: 12 February 2024 Place: Perth Applicant: The applicant appeared in person. Counsel for the First Respondent: Ms G Ellis Solicitor for the First Respondent: Sparke Helmore Lawyers Second Respondent: The second respondent appeared in person. ORDERS
PEG 195 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CEN23
Applicant
AND: CHILD SUPPORT REGISTRAR
First Respondent
CEO23
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
23 DECEMBER 2024
THE COURT ORDERS THAT:
1.The Notice of Appeal (Child Support) filed on 6 September 2023 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
Section 110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in child support review proceedings.
IT IS NOTED that publication of this judgment under a pseudonym is approved pursuant to s 110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
The applicant and the second respondent are the separated parents of two children and there has been a child support case registered in relation to the children since 2013. Relevant to the application presently before the Court, the applicant, who is the father of the children, applied for a departure from the administrative assessment of child support (commonly known as a change of assessment application). A delegate of the Child Support Registrar (Registrar) refused to change the administrative assessment and that decision was affirmed on internal review. The applicant then sought review by the Administrative Appeals Tribunal (Tribunal) and the Tribunal set aside the decision under review and substituted a new decision that:
(a)for the period from 7 June 2022 to 16 November 2022 the adjusted taxable income of the applicant is varied to $91,746; and
(b)for the period from 7 June 2022 to 30 October 2023 the adjusted taxable income of the second respondent is varied to $86,965.
The applicant filed a notice of appeal from the Tribunal decision pursuant to s 44AAA of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).
An appeal under s 44AAA of the AAT Act is an appeal on a question of law. The appeal raises three questions of law and five grounds. The issues raised by the appeal fall broadly into three main categories:
(a)the first relates to the Tribunal’s consideration of a lump sum compensation payment received by the applicant in the assessment of his adjusted taxable income for child support purposes, and raises questions as to whether it was lawful for the Tribunal to take this payment into account and whether, in doing so, the Tribunal failed to follow a fair process;
(b)the second relates to whether the Tribunal failed to consider evidence and reached an erroneous conclusion; and
(c)the third relates to whether the Tribunal properly construed the legislation and, in particular, whether it erroneously believed that it was unable to backdate the assessment for up to 18 months.
For reasons explained below, I find that the applicant has not established that the Tribunal made an error of law and the application to this Court is therefore dismissed.
BACKGROUND
The applicant is the father and the second respondent is the mother of two children born in 2004 and 2006 respectively, who are the subject of administrative assessments of child support.
On 7 June 2022 the applicant lodged a change of assessment application with Services Australia – Child Support (Child Support). The applicant relied on Reason 8A for the change of assessment, being a change sought because the assessment did not correctly reflect one or both parent’s income, property and/or financial resources. The applicant sought a reduction to the rate of child support he was required to pay from 24 December 2021 to nil based on changes to the second respondent’s income and financial resources.
On 3 January 2023 a delegate of the Registrar refused to change the assessment. The delegate found that although Reason 8A was established, it would not be just and equitable to change the assessment. The applicant objected to this decision on 16 January 2023.
On 25 March 2023 an objections officer disallowed the applicant’s objection (objection decision). The officer also found that Reason 8A was established but the application was refused because it would not be just and equitable in accordance with s 98F of the Child Support (Assessment) Act 1989 (Cth) (Assessment Act).
On 31 March 2023 the applicant lodged an application to the Tribunal seeking merits review of the objection decision. The applicant and the second respondent both appeared at a hearing convened by the Tribunal on 25 July 2023.
On 25 July 2023 the Tribunal set aside the objection decision and, in substitution, decided that the applicant’s adjusted taxable income was varied to $91,746 for the period 7 June 2022 to 16 November 2022, and the second respondent’s adjusted taxable income was varied to $86,965 for the period 7 June 2022 to 30 October 2023.
SUMMARY OF THE TRIBUNAL DECISION
The Tribunal identified that the following administrative assessments of child support were under consideration:
(a)for the period from 24 December 2021 to 30 September 2022 the applicant was assessed to pay an annual rate of child support of $1,572 to the second respondent, based on 2020-21 adjusted taxable incomes of $55,479 for the applicant and $44,575 for the second respondent;
(b)for the period from 1 October 2022 to 18 November 2022 the second respondent was assessed to pay an annual rate of child support of $4,338 to the applicant, based on 2021-22 adjusted taxable incomes of $56,196 for the applicant and $86,965 for the second respondent; and
(c)for the period from 19 November 2022 to 31 December 2023 the second respondent was assessed to pay an annual rate of child support of $12,924 based on 2021-22 adjusted taxable incomes of $56,196 for the applicant and $86,965 for the second respondent.
The Tribunal identified the following issues for its consideration, based on the approach required by s 98C of the Assessment Act:
(a)whether or not a ground for departure set out in s 117(2) of the Assessment Act was established; and
(b)if so, whether or not it was just and equitable to make a particular departure determination; and
(c)if so, whether or not it was otherwise proper to make a particular departure determination.
The Tribunal was satisfied that a ground for departure under s 117(2)(c)(ia) of the Assessment Act existed, namely, that in the special circumstances of the case, application of the administrative assessment of child support would result in an unjust and inequitable determination of child support to be provided by the liable parent in respect of the child because of the income, property and financial resources of either parent. In reaching this conclusion, the Tribunal found that the applicant’s taxable income alone did not represent the true income and resources available to him because it did not take into account a lump sum compensation payment of $35,550 that the applicant received on 17 November 2021. The Tribunal considered this lump sum payment to be a financial resource available to the applicant for child support purposes and considered that it was appropriate to take into account this amount. The Tribunal also considered that the second respondent’s income had increased in 2021-2022 and that it was appropriate for child support to be assessed taking into account the increased income. The Tribunal found that applying the varied amounts in the child support formula, the annual rate payable by the applicant would be approximately $644, which was less than the amount that he had been assessed to pay under the administrative formula that applied (in the period from 24 December 2021 to 30 September 2022, which as set out above, had been calculated at $1,572 per annum) and was satisfied that in the special circumstances of the case the application of the administrative assessment of child support would result in an unjust or inequitable determination of child support to be provided by the applicant and therefore a ground for departure existed.
In considering whether it was just and equitable to depart from the administrative assessment of child support, the Tribunal had regard to the following matters set out in s 117(4) of the Assessment Act:
(a)The nature of the duty of a parent to maintain a child: The Tribunal noted that, pursuant to s 3 of the Assessment Act, the primary duty of a parent to maintain the child has priority over nearly all other commitments. The Tribunal considered that the applicant and the second respondent had a duty to support their two children and noted that it was not made aware that either parent had a legal responsibility to any other person or child;
(b)The proper needs of the child: The Tribunal noted that one child was in receipt of a disability support pension, but it was not otherwise made aware that the parents expected the children to be cared for, educated or trained in a particular way or that either had any special needs. The Tribunal was satisfied that it was appropriate to calculate the costs of their needs by reference to the Costs of the Children Table;
(c)The income, earning capacity, property and financial resources of the child: The Tribunal was satisfied that the children had no income, earning capacity, property or financial resources which should be taken into account for the purpose of child support;
(d)The income, property, financial resources and earning capacity of each parent: The Tribunal noted that it had already considered the income, property and financial resources of both parents and was also satisfied that the earning capacity criteria were not met for either parent; and
(e)Any hardship that would be caused: The Tribunal considered the information that both parents had provided about their income and expenses. The Tribunal considered that it was appropriate to apply its determination from the date on which the applicant made the change of assessment application. The Tribunal considered that this would result in an overpayment by the applicant as it would reduce the amount of child support he would be assessed to pay, but that this result would be offset by the fact that the applicant would remain the paying parent until 17 November 2022 (rather than until 30 September 2022, as was the case under the administrative assessment). The Tribunal was satisfied that the proposed determination would not cause hardship to the parents or the children and that it was just and equitable.
The Tribunal had regard to the matters in s 117(5) of the Assessment Act and concluded that it would otherwise be proper to make the particular departure determination.
The Tribunal therefore set aside the objection decision and instead decided that:
(a)for the period from 7 June 2022 to 16 November 2022 the adjusted taxable income of the applicant was varied to $91,746; and
(b)for the period from 7 June 2022 to 30 October 2023 the adjusted taxable income of the second respondent was varied to $86,965.
NOTICE OF APPEAL
The notice of appeal sets out the following three questions of law (reproduced without alteration):
1.As a question of law, was the Tribunal correct in including the Appellant’s Permanent Impairment compensation payment under the Safety Rehabilitation and Compensation (Defence-related Claims) Act 1988 (DRCA) (the “PI compensation payment”), as part of “adjusted taxable income” for the period 7 June 2022 to 16 November 2022?
2.Did the Tribunal exceed, or fail to exercise properly, its powers and thus commit jurisdictional error, which is correctable on appeal in respect to the question of law, by:
(a) ignoring relevant material, and/or
(b) failing to accord procedural fairness to the Applicant, and/or
(c)making an erroneous finding of such a magnitude that it goes to the very jurisdiction which it purports to exercise rendering its decision unreasonable, and/or
(d) fails to construe properly the legislative provisions applicable.
3. Did the Tribunal err at law, having established that reason existed to depart from the administrative child support assessment, when deciding whether or not to back date the determination, misconstrue the operation of paragraph 98S(3B)(a) of the Child Support Assessment Act 1989 (CSAA)?
The Court’s jurisdiction to hear an appeal under s 44AAA of the AAT Act is engaged only where a question of law is raised for determination. The question of law should be ‘properly and precisely framed in the notice of appeal’ and, while some allowance may be given to an unrepresented litigant, this cannot detract from the fact that the jurisdiction of the Court is only enlivened where a question of law is raised for determination: see P v Child Support Registrar (2014) 225 FCR 378; [2014] FCAFC 98 at [27]-[28].
I am satisfied that the notice of appeal raises questions of law that invoke the Court’s jurisdiction.
The notice of appeal raises the following five grounds:
1.The Applicant … is a “liable parent” under the CSAA, being a parent by whom child support is payable for the children under the administrative assessment. The Applicant contends the Tribunal failed to afford procedural fairness to him (Reasons for Decision, at [65]), in finding that the financial resource of the PI compensation payment was to be applied for a period of 12 months. The Tribunal did not address that possibility at hearing, the Applicant was not afforded the opportunity to respond to that possible finding. And further, the Tribunal had no reasonable basis to rely on, and did not provide reasoning how it was satisfied, that that financial resource ought to be enlivened for the child support assessment for a period of 12 months.
2.The Tribunal ignored relevant material at [55] being the Applicant had, and was continuing to incur, significant legal costs in child related civil proceedings (in the Children’s Court of Western Australia, and in the Supreme Court of Western Australia, and in the Family Court of Western Australia, and now in the District Court of Western Australia). The Applicant had elected to be paid the PI compensation […] rather than a whole life pension paid fortnightly, to offset these ongoing legal expenses incurred in these child related matters in other Courts. The financial resource ought not to have been described as “adjusted taxable income” in the determination (at [53]). Or alternatively, ought to have been applied as a financial resource available to [the Applicant] but for a period less than 12 months.
3.The Tribunal made, what turned out to be, an erroneous conclusion (at [66]), being that its determination will result in an overpayment to [the second respondent] as it will reduce the amount of child support payable by [the applicant]. In reality it did not. When the determination was applied by the Child Support Registrar it resulted in a debt owed by [the applicant] in the amount of $551.53 (in other words, he ultimately had to pay more child support to [the second respondent]). On the most basic interpretation of the Tribunals substantive finding, [the applicant] paid more child support than he ought to. The fact that subsequent implementation of the determination went against the nub of this finding gives rise to an erroneous outcome of such a magnitude that it goes to the very jurisdiction which it purports to exercise rendering its decision unreasonable.
4.The Applicant submits the Tribunal erred in the way it treated the PI compensation payment (at [42]) by categorizing it as “adjusted taxable income”. The payment is not a “tax free pension or benefit” within the definition of Section 5 of the CCSA, and thus can not be rolled into the quanta of “adjusted taxable income” within the formula stipulated in Section 43 of the Act. Nor in the circumstances of the case ought it be considered a financial resource available to [the applicant] as the PI compensation payment had been virtually exhausted by previous, and/or set aside for future, child-related legal expenses.
5.The Applicant submits the Tribunal incorrectly construed the legislative provisions applicable to the operation of CSAA Section 98(3B)(a). At [60] in reasons for decision cited, “...in respect of day in a period that is not more than 18 months...” (emphasis added). Whereas the proper operation of Section 98S(3B)(a) is “..in respect of a day in a child support period, being a day that is more than 18 months (emphasis added) earlier than the day on which the application for the determination is made...”. In other words, the Learned AAT Member was in error at law by misconstruing the legislative provision: the operation of 98S(3B)(a) was in-time and allowed the back dating of the determination.
The Registrar filed a court book, comprising the documents that were before the Tribunal, which was received into evidence and marked as exhibit 1. The applicant and the Registrar both provided written and oral submissions to the Court. The second respondent made brief oral submissions to the Court. I have had regard to all the documents before the Court, and the submissions made by all parties, but only refer to them where they are expressly relevant to the issues to be determined in this matter.
CONSIDERATION OF THE NOTICE OF APPEAL
Questions of law 1 and 2; grounds 1, 2 and 4: Whether the Tribunal erred in its treatment of the applicant’s lump sum compensation payment
The evidence before the Tribunal showed that the applicant received a lump sum compensation payment of $35,550 in late 2021. In considering whether this should be treated as a financial resource available to him for the purposes of child support, the Tribunal said at [27]-[30] of its reasons:
27.The term “financial resources” is not defined in the Act. In Costa & Fairbank (SSAT Appeal) [2010] FMCAfam 39 the Court said about the interpretation of the term “financial resources” that it:
refers to something which is not property but from which a financial benefit is or may be gained
…
The term financial resource in the light of the objects of the Assessment Act should be broadly defined and would in my consideration refer to any financial benefit that would enhance the capacity of parents to provide a proper level of financial support for their children.
28.The Tribunal considers the lump sum payment received by [the applicant] to be a financial resource available to him for the purposes of child support. In doing so the Tribunal is mindful of policy guidance set out in the Child Support Guide at 2.6.14 in relation to lump sum payments. It states, relevantly:
Where a parent receives a substantial amount of money (a lump sum) that would otherwise not form part of their income amount used for child support purposes, and therefore is not included in the assessment of child support, the lump sum may be taken into account in deciding whether the assessment should be changed.
Such payments may arise as a consequence of the parent:
•being retrenched from their employment
•drawing funds from a superannuation fund
•receiving a distribution from a deceased estate
•being compensated for some loss or damage, or
•being successful in a lottery or some other gambling venture.
In each case it will be necessary to decide whether receiving the money makes the amount of child support payable unjust and inequitable.
29.Although not bound by policy as set out in the Child Support Guide, the Federal Court has held that a tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation.
30.The Tribunal is satisfied, in the circumstances of this case, it is appropriate to take into account the lump sum payment of $35,550 received by [the applicant] [in late] 2021. [The applicant] chose to receive this payment as a lump sum rather than a pension. The Tribunal is of the view that assessing child support on the basis of his taxable income alone would result in an unjust and inequitable outcome. While not grossing up the value of the lump sum the Tribunal considers it reasonable to add back this amount from the date it was received.
The Tribunal added the amount of $35,550, being the amount of the lump sum compensation payment, to the applicant’s taxable income for a period of one year from the date it was received, namely, late 2021. However, as the Tribunal chose to apply its determination only from the date of the change of assessment application, the lump sum compensation amount was only taken into account during the period from 7 June 2022 to 16 November 2022.
The applicant asserts that the Tribunal made a number of errors in relation to the manner in which it treated the lump sum compensation payment. Broadly, the applicant asserts that the Tribunal erred by:
(a)wrongfully categorising the compensation payment as part of his ‘adjusted taxable income’;
(b)denying him procedural fairness by not giving him an opportunity to comment on the proposed finding;
(c)finding that the lump sum compensation payment is a financial resource for child support purposes without giving reasons for the finding and where there was no reasonable basis for the finding; and
(d)failing to properly take into account that the applicant intended to use the lump sum compensation amount to pay legal fees.
Adjusted taxable income
The applicant in his submissions referred to the definition of ‘adjusted taxable income’ in s 43 of the Assessment Act and, as can be seen by ground 4, asserts that the Tribunal erred in treating it as part of his adjusted taxable income.
Section 43(1) of the Assessment Act provides:
Subject to this Part, a parent’s adjusted taxable income for a child for a day in a child support period is the total of the following components:
(a) the parent’s taxable income for the last relevant year of income in relation to the child support period, disregarding the parent’s assessable FHSS released amount (within the meaning of the Income Tax Assessment Act 1977) for that year of income;
(b) the parent’s reportable fringe benefits total for that year of income;
(c) the parent’s target foreign income for that year of income;
(d) the parent’s total net investment loss (within the meaning of the Income Tax Assessment Act 1997) for that year of income;
(e) the total of the tax free pensions or benefits received by that parent in that year of income;
(f) the parent’s reportable superannuation contributions (within the meaning of the Income Tax Assessment Act 1997) for that year of income.
I accept the Registrar’s submission that the Tribunal did not ‘treat’ or ‘categorise’ the lump sum as adjusted taxable income. That is, the Tribunal did not find that the lump sum compensation payment was considered to be part of the applicant’s adjusted taxable income within the definition in s 43(1) of the Assessment Act. Rather, the Tribunal considered that the applicant’s adjusted taxable income, as calculated in accordance with the definition of the Assessment Act, did not accurately reflect the financial resources available to him because of the lump sum compensation payment that he received, and therefore varied the applicant’s adjusted taxable income to take into account this financial resource. This was an option available to the Tribunal under s 98S(1) of the Assessment Act, specifically, s 98S(1)(g), which allows the Registrar (or Tribunal on review) to make a determination varying a parent’s adjusted taxable income.
The applicant’s assertion that the Tribunal ‘treated’ or ‘categorised’ the lump sum compensation amount as adjusted taxable income within the meaning of s 43 of the Assessment Act does not establish any error of law. Rather, treating the lump sum compensation payment as a financial resource of the applicant was an option that was open to the Tribunal having regard to the relevant legislative scheme and the policy addressed in the Tribunal’s reasons for decision.
Failure to take into account the intended use of the lump sum compensation amount
The applicant provided detailed submissions to this Court to the effect that the intended use of the lump sum compensation payment was the payment of legal fees in relation to various court proceedings. He claims that this is something to which the Tribunal ought to have had regard.
In advancing his submissions to the Court, the applicant relied on the judgment in Ladd & Child Support Registrar & Anor (SSAT Appeal) [2010] FMCAfam 23 (Ladd). In that case, the Court found that the relevant tribunal erred in its interpretation of the term ‘financial resources’ and misunderstood the task it was required to undertake to establish the true extent of the financial resources available to the applicant: see Ladd at [28]-[35]. In Ladd, the Tribunal sought to evaluate the applicant’s financial position by taking into account financial resources that the applicant had available to him through his company, without fully having regard to the company’s losses and the overall financial position of the applicant and the company.
The submission and evidence that the applicant has provided to the Court appears to be far more detailed than what he provided to the Tribunal. The applicant, who bears the onus of proof in this proceeding, has not provided any transcript or other evidence to show precisely what he said to the Tribunal in his oral submissions and evidence. I have, however, had regard to the information in the court book and the applicant’s submissions as summarised in the Tribunal decision.
The Tribunal recorded at [55] of its reasons:
[The applicant] told the Tribunal his income was effectively fixed and his expenditure was in line with this income. [The applicant] said his finances were essentially in balance. [The applicant] pointed out that in addition to his ordinary expenses he was also incurring legal costs related to civil proceedings which were not particularised in his Statement of Financial Circumstances.
The applicant provided details of his financial circumstances in his change of assessment application and in his statement of financial circumstances that he provided to the Tribunal. The applicant referred to the lump sum compensation payment in his change of assessment application but did not indicate in either document that he had expenses or liabilities in relation to legal fees.
The Tribunal was required to make its decision on the information before it. The detailed information that the applicant provided to the Court in relation to his legal expenses was not before the Tribunal and, as submitted by the Registrar, the Tribunal cannot therefore have made any error of law by failing to take it into account.
The Tribunal considered the applicant’s submission that he was incurring legal costs relating to civil proceedings in assessing the hardship that may result from the Tribunal’s departure determination. The Tribunal carefully considered the information about the applicant’s income and expenses that was available to it and took this information into account as it was required to do. This is not a matter such as Ladd where the Tribunal has not properly examined all aspects of the financial information before it.
The applicant has not established that the Tribunal made any error of law by failing to take into account his intended use of the lump sum compensation payment.
Procedural fairness
There are two interrelated aspects to the applicant’s assertion that he was denied procedural fairness. The first is an assertion that the Tribunal did not give him an adequate opportunity to comment on the proposed finding. The second is an assertion that the Tribunal should have inquired about what the applicant intended to do with the money. The applicant submitted that this was such a critical aspect of the Tribunal decision that it deserved to be explored more fully and that the Tribunal should have sought further submissions from the applicant on this point. The applicant submitted that the money had been set aside by him for the purpose of paying legal expenses and the Tribunal was required to explore that issue in greater detail in assessing hardship.
The lump sum compensation payment was not a new issue that arose for the first time before the Tribunal. The applicant referred to the lump sum compensation payment in his change of assessment application and both the delegate and the objections officer took it into account in determining whether it was just and equitable to depart from the administrative assessment of child support. It appears from the Tribunal’s reasons for decision that the lump sum compensation payment was discussed at the Tribunal hearing, although in the absence of any transcript, the Court is unable to ascertain the extent or precise content of any discussion. It appears from the Tribunal’s reasons that the applicant told the Tribunal that he had elected to receive the compensation as a lump sum and accepted that it was a financial resource available to him.
I do not accept that the applicant was denied an opportunity to address the lump sum compensation payment before the Tribunal, particularly in circumstances where it was also an issue before the delegate and the objections officer. The applicant was aware from the delegate’s decision and the objection decision that the lump sum compensation amount was in issue and he could have given information about his intended use for the lump sum compensation payment in the financial information he gave to the Tribunal or at the Tribunal hearing if it was something he wanted the Tribunal to consider. I accept the Registrar’s submission that the issue was squarely live before the Tribunal such that the applicant cannot maintain that he was not given an opportunity to comment on it.
Further, I accept the Registrar’s submission that the Tribunal was not under any duty to inquire into the applicant’s intended use of the lump sum compensation payment. Whether or not the lump sum compensation payment is properly considered to be a financial resource of the applicant is not determined by his subjective intention for the use of that money.
The applicant has not established that the Tribunal denied him procedural fairness.
Unreasonableness
The applicant asserts that the Tribunal erred in determining the financial resources available to him and in treating the lump sum compensation amount as a financial resource available to him for the purposes of child support. Some parts of the applicant’s submissions essentially amount to disagreement with the Tribunal decision and to this extent, the applicant’s disagreement with the Tribunal decision does not, of itself, establish that the Tribunal made an error of law: see, for example, Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40].
As I understand the applicant’s main submission, it is that although the lump sum compensation amount was a financial resource, it was not a financial resource for child support purposes because he intended to use it to pay for legal fees and the Tribunal erred by failing to consider his intended use of the money.
This does not give rise to any unreasonableness in the Tribunal decision. As noted above, in circumstances where the applicant has not established that he provided information to the Tribunal about the extent of his legal fees or his intention to use the lump sum to pay for those legal fees, the Tribunal was not required to consider that the applicant intended to use the lump sum for that purpose. The Tribunal had regard to the applicant’s financial circumstances to the extent that they were in evidence before it.
A finding that a lump sum is a financial resource for the purposes of child support does not require the Tribunal to be satisfied that the financial resource is one that the parent intends or agrees to make available for the purpose of paying child support. Even if one were to accept that the applicant intended to use the money to pay legal fees (and I make no finding on that one way or the other as it is not open to me to review the factual merits of the Tribunal decision), the applicant’s intention would not mean that the lump sum compensation amount could not be a financial resource for the purposes of child support.
I otherwise accept the Registrar’s submission that the Tribunal’s decision to vary the applicant’s adjusted taxable income to include an amount equivalent to the lump sum compensation amount had an evident and intelligible basis, namely, the amount was one available to the applicant from the date he received it and was appropriately treated as a financial resource available to him. This is reflected in the reasons for decision given by the Tribunal, which adequately explain why the Tribunal considered the lump sum compensation payment to be a financial resource of the applicant, why it considered there was a reason to depart from the administrative assessment of child support and why it considered it would be just and equitable to depart from the administrative assessment of child support.
The applicant has not established that the Tribunal decision was unreasonable.
Conclusion on grounds 1, 2 and 4
Grounds 1, 2 and 4 are not established.
Question of law 2; ground 3: Whether the Tribunal failed to consider relevant evidence and made an erroneous conclusion
Ground 3 directs attention to the effect of the implementation of the Tribunal decision and [66] of the Tribunal’s reasons. In this paragraph, in addressing whether it would be just and equitable to make the determination, the Tribunal said:
The determination of the Tribunal will result in an overpayment to [the second respondent] as it will reduce the amount of child support payable by [the applicant]. This will be offset by the fact that [the applicant] remains the paying parent until 17 November 2022 when [the second respondent] becomes the paying parent. The Tribunal is, on balance, satisfied the proposed determination will not cause hardship to [the applicant], [the second respondent] or the children and is just and equitable.
The applicant annexed to his written submissions a letter from Child Support dated 25 August 2023 advising him that he had a child support overpayment of $551.53 and requiring him to repay that amount. No party objected to this document being received by the Court, notwithstanding that it was not a document that was before the Tribunal at the time of the Tribunal decision.
The gist of the applicant’s submission is that the Tribunal said that its determination would result in an overpayment to the second respondent, but the letter from Child Support upon implementation of the Tribunal’s decision is different to this and reflects ‘such an adverse juxtaposition in outcome goes to the very jurisdiction which it purports to exercise rendering the administrative outcome to be so unreasonable as to be correctable on appeal’: applicant’s written submissions at [24].
The difficulty with the applicant’s position is that it focuses on one sentence of the Tribunal’s reasons that is favourable to the applicant and reads it in a way that is isolated from its proper context in the reasons for decision. While it is correct to say that the Tribunal found that its determination would result in the applicant having overpaid child support for a period, the Tribunal also found that this would be offset by the applicant remaining the paying parent until 17 November 2022, whereas under the administrative assessment of child support (which was varied by the Tribunal’s determination), the second respondent was the paying parent from 1 October 2022 to 18 November 2022 and had been assessed to pay child support to the applicant at an annual rate of $4,338. In other words, the Tribunal considered that the effect of its determination would be that the amount of child support payable by the applicant would decrease for part of the period the subject of the determination, but that the applicant would have to pay child support for a part of the period during which he had previously received child support. The Tribunal does not indicate in its reasons, one way or the other, whether the net outcome will be an overpayment of child support to the applicant or to the second respondent.
I am not satisfied that the Tribunal has misunderstood the implementation of its decision in a way that goes to its jurisdiction. I also accept the Registrar’s submission that the applicant has not identified error in the Tribunal’s conclusion that its determination would not cause hardship to either parent, and that it therefore is not established that the relevant findings of the Tribunal lacked an ‘evident and intelligible justification’: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [76] (Hayne, Kiefel and Bell JJ).
Ground 3 is not established.
Before leaving this ground, I note in passing that the letter from Child Support that the applicant provided to the Court, notifying him of the overpayment, does not explain the basis on which the overpayment was calculated. It is therefore not possible for the Court to ascertain from the evidence before it whether the Tribunal made any errors in its calculations. At the hearing, I indicated to the parties that I would consider whether it would be appropriate to request the Registrar to provide an explanation for the calculations by Child Support. I decided not to seek any explanation from the Registrar. When the Tribunal’s reasons are read fairly and as a whole, for the reasons explained above, there is no basis for believing that the Tribunal misunderstood the impact of the implementation of its decision in a way that would vitiate its finding that there would not be hardship to either parent or otherwise amount to an error of law. Obtaining further evidence of the basis of the calculations would therefore be highly unlikely to have any impact on this judgment and would only serve to increase the costs incurred by the parties in this matter. There may also be arguments open to the parties that such evidence would be inadmissible in any event, or might otherwise interfere with strategic decisions that the parties have made in the presentation of their respective cases. In these circumstances, I determined that the preferable course was not to seek additional evidence.
Question of law 3; ground 5: Whether the Tribunal misconstrued s 98S(3B)(a) of the Assessment Act
The applicant asserts that the Tribunal misconstrued s 98S(3B)(a) of the Assessment Act at [60] of its reasons, where it said:
The Tribunal is limited to making a determination in respect of a day in a period that is not more than 18 months prior to the date the change of assessment application was made (paragraph 98S(3B)(a) of the Act). The Tribunal must decide whether or not it is just and equitable to backdate its determination.
Section 98S(3B) of the Assessment Act provides:
The Registrar may only make a determination under this Part in respect of a day in a child support period, being a day that is more than 18 months earlier than:
(a)the day on which the application for the determination is made under section 98B; or
(b)the day on which the Registrar notifies the relevant parties under subsection 98M(1);
if a court has granted leave under section 112 for the determination to be made.
The reason the applicant believes the Tribunal misconstrued this provision is set out in his written submissions to the Court, where he said:
21.It is arguable the Tribunal incorrectly construed the legislative provisions applicable to the operation of CSAA Section 98S(3B)(a). At [60] in Reasons for decision (page 343 of Court book) “…in respect of a day in a period that is not more than 18 months…” (emphasis added). Whereas the proper construction of this Section is “in respect of a day in a child support period, being a day that is more than 18 months (emphasis added) earlier than the day on which the application for the determination is made…”
22.In other words, the Learned AAT Member was in error at law by misconstruing the legislative provision: the operation of Section 98S(3B)(a) was in-time and allowed the back dating of the determination.
I do not accept that the Tribunal misconstrued s 98S(3B) of the Assessment Act. The applicant’s submission focuses on particular phrases in the legislation and in the Tribunal reasons and isolates them from their proper grammatical context. Read properly, the Tribunal’s reasons show that it understood that it could backdate the assessment for a period of up to 18 months prior to the date on which the applicant made the change of assessment application. There is no evidence before the Court to suggest that leave had been granted under s 112 of the Assessment Act to backdate the assessment for a period longer than 18 months and no request had been made to the Tribunal to backdate its assessment for a period greater than 18 months prior to the date of the change of assessment application.
In any event, and as submitted by the Registrar, the Tribunal considered whether it would be just and equitable to backdate its determination to apply from 24 December 2021 as requested by the applicant. It decided that it would be just and equitable to commence its determination from 7 June 2022, being the date the applicant made his change of assessment application, rather than an earlier date. The Tribunal’s approach was consistent with a proper interpretation of s 98S(3B) of the Assessment Act and no error of law is established by ground 5.
CONCLUSION
The applicant has not established that the Tribunal made an error of law in reaching its decision. The notice of appeal must therefore be dismissed. |
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 23 December 2024
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