Child Support Registrar v BKCZ

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FEDERAL COURT OF AUSTRALIA

Child Support Registrar v BKCZ [2023] FCA 1109  

Appeal from: BKCZ and Child Support Registrar (Child support second review) [2022] AATA 725
File number: QUD 150 of 2022
THOMAS J
Date of judgment: 18 September 2023
Catchwords:

ADMINISTRATIVE LAW – percentage care determination – whether the Administrative Appeals Tribunal (AAT) can take into account factors not before original decision maker – temporal element – where there is a divergence in the decision of the AAT – held that the AAT erred in determining that the circumstances of the case justified a “point-in-time approach” – a “point-in-time approach” is contrary to the legislative text of the Child Support (Assessment) Act 1989 (Cth) (Assessment Act)

ADMINISTRATIVE LAW – whether the AAT failed to consider or give adequate reasons as to the operation of ss 54G, 54F and 54H of the Assessment Act – whether the AAT failed to make a determination under ss 54G, 54F and 54H of the Assessment Act – whether the AAT failed to determine two percentages of care – whether the AAT deviated from its decision to pursue a “point-in-time approach” – whether the AAT failed to make a material conclusion of law, with reasons, in respect of contentions raised
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth)

Child Support (Assessment) Act1989 (Cth)

Explanatory Memorandum to the Child Support and Family Assistance Legislation Amendment (Budget and Other Measures) Bill 2010

In the Best Interests of Children ­– Reforming the Child Support Scheme – Report of the Ministerial Taskforce on Child Support (Australian Government Department of Families, Housing, Community Services and Indigenous Affairs, May 2005)
Cases cited:

BDPD and Child Support Registrar and Anor [2015] AATA 376

BKCZ and Child Support Registrar (Child support second review) [2022] AATA 725

Chadwick and Cummins (Child Support) [2016] AATA 2009

Child Support Registrar v MQMV (2019) 79 ALR 298; [2019] FCA 1171

Clancy and Tranter (Child support) [2019] AATA 1738

Confidential and Child Support Registrar and Anor [2014] AATA 255

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

F v LP (Child Support) [2015] AATA 321

Frugtniet v Australian Securities and Investment Commission (2019) 266 CLR 250; [2019] HCA 16

Hollier and Hollier (Child support) [2018] AATA 3490

JBRJ and Child Support Registrar (Child support second review) [2016] AATA 27

Jordan and Jenkin (Child support) [2019] AATA 1744

Mair and Mair (Child support) [2018] AATA 4894

Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

RRBK and Child Support Registrar (Child support second review) [2016] AATA 575

Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31
Division: General Division
Registry: Queensland
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 134
Date of hearing: 15 December 2022
Counsel for the Applicant: Ms RA Horsley
Solicitor for the Applicant: Mills Oakley Lawyers
Counsel…
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Details
Case
[2023] FCA 1109
Decision Date

CaseChat Overview and Summary

Child Support Registrar v BKCZ involved a dispute regarding the percentage care determination for child support purposes. The case was heard by the Federal Court of Australia, which was tasked with reviewing the decision of the Administrative Appeals Tribunal (AAT). The primary issue in the case was whether the AAT had the authority to consider factors and evidence that were not before the original decision-maker, particularly in relation to the temporal element of the Child Support (Assessment) Act 1989 (Cth). The Registrar argued that the AAT had incorrectly adopted a "point-in-time approach" in its decision-making process, which was inconsistent with the legislative text of the Assessment Act.

The court examined whether the AAT had adequately considered sections 54G, 54F, and 54H of the Assessment Act, and if it had correctly determined two percentages of care as required by law. The Registrar further contended that the AAT had deviated from its earlier decision to pursue a "point-in-time approach" and had failed to provide adequate reasons for its conclusions. Additionally, the court considered whether the AAT had made a material conclusion of law, with reasons, in respect of the contentions raised.

In its reasoning, the court found that the AAT had erred in applying a "point-in-time approach" to the percentage care determination, which was contrary to the legislative text. The court held that the AAT is not restricted to considering the circumstances as they existed at the time of the notification of the change in care and may take into account the actual care of the children during the relevant care period. The court further noted that the AAT, as a merits review body, is not limited to the material before the original decision-maker and may consider new evidence and information. The court concluded that the AAT's decision to adopt a "point-in-time approach" was inconsistent with the legislative intent and the principles of good public administration. Consequently, the decision of the AAT was set aside, and the case was remitted to the AAT for reconsideration.

Orders

Orders of the court

1. The decision of the Administrative Appeals Tribunal given on 8 April 2022 be set aside.

2. The case be remitted to be heard and decided again, with the hearing of any further evidence that may be considered relevant, by the Administrative Appeals Tribunal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The AAT concluded (at [35]) that:Whilst the [AAT] accepts that it is not limited to considering the circumstances as they existed as at the date of notification of the change in care of the relevant children, and that it may inform itself as it considers appropriate as to the actual care of the relevant children during the care period; for the reasons which follow, the [AAT] is of the view that the circumstances of this case justify a point-in-time approach with respect to the application of sections 49 and 50 of the Assessment Act.(italics in original)The role of the AAT and the evidence it takes into account The creation of the AAT, with the powers vested in it by the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), saw the implementation of a scheme of administrative review beyond that which was available in the court system marked by the jurisdiction of the AAT to re-exercise the function of the administrative decision-maker so as to determine the correct or preferable decision. The AAT is a tribunal not a court. Its function is not to undertake appeals, but to undertake merits review where the AAT stands in the shoes of the original decision-maker to re-exercise the function of the original decision-maker to determine the correct or preferable decision. The AAT does not review decisions according to the principles and rules which govern applications for judicial review or appeals. The AAT is an instrument of government administration, part of the administrative decision-making continuum. Essentially, the task of the AAT is to deal with the matter as if the original decision-maker were deciding the matter at the time that it was before the AAT. In undertaking the review, the AAT determines the question by reference to the material before the AAT, and not limited to that material before the original decision-maker. This includes information which comes into existence, or events which occur, after the date of the original decision (up to the time of the hearing before the AAT). As Bowen CJ and Deane J concluded in Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 (at 419):The question for the determination of the [AAT] is not whether the decision which the decision maker made was the correct or preferable one on the material before him. The question for the determination of the [AAT] is whether that decision was the correct or preferable one on the material before the [AAT]. As Kirby J said in Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31 (Shi) (at [41]): “When making a decision, administrative decision-makers are generally obliged to have regard to the best and most current information available”. Kirby J went on to observe: “This rule of practice is no more than a feature of good public administration”. As Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 (Peko-Wallsend) observed (at 45):It would be a strange result indeed to hold that the [decision-maker] is entitled to ignore material of which [the decision-maker] has actual or constructive knowledge and which may have a direct bearing on the justice of making the [decision], and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading.

Decision

Reasons for decision

This question has been identified as being of general importance to the AAT as there has been a divergence of views evidenced by various decisions of the AAT.The AAT decision The AAT recognised that there have been two lines of authority which have arisen within the AAT regarding the scope of the jurisdiction when reviewing a care percentage decision the subject of the application under ss 49 and 50 of the Child Support (Assessment) Act1989 (Cth) (Assessment Act). The AAT identified that the question related to the percentage of care for the child on the basis of the pattern of care each parent “has had, or is likely to have” in the relevant care period. The AAT described the two competing interpretations “with respect to a temporal limitation in the legislation guiding care percentage decisions” as follows:a)A point-in-time approach, where the phrase “has had, or is likely to have” incorporates a temporal element to the making of a care percentage decision such that the decision maker, whether at first instance or on review, is limited to considering: one, the pattern of care that the parents have had in the past care period up to the date of notification of the change, and two, the pattern of care that the parents are likely to have in the care period after the date of notification; andb)A competing interpretation whereby there is no temporal limitation such that it is open to the decision maker to consider the pattern of care the parents have had or were likely to have in the care period; and accordingly given the passage of time, the [AAT] is in a position to determine the [pattern] of care parents have actually had in the care period because of the passage of time which has passed (i.e. in effect the [AAT] can perform an audit of actual care each parent has had).(italics in original) The AAT noted that the Registrar contended that it was open to the AAT to consider the pattern of care “the parents actually had in the care period, given the care period is retrospective” (emphasis in original). The AAT noted there was undisputed evidence as to that issue. The AAT referred (at [34] of its decision in BKCZ and Child Support Registrar (Child support second review) [2022] AATA 725) to a decision in F v LP (Child Support) [2015] AATA 321 (unreported) (F v LP) where the Senior Member said (at [57]):Care decisions are generally predictive in nature, given the period to which they apply at the time they are made. However, where, as is the case here, evidence of the “actual care” provided by the parents of the child in the relevant care period is available (i.e. because the relevant care period has already passed), the [AAT] should have regard to the “actual care” that was provided during the period under review: see Shi v Migration Agent Review Authority [2008] HCA 31. In Shi, the High Court held that it was open to the [AAT] to take into account conduct and events that occurred after the original decision was made, and that the [AAT] was not confined to the evidence that was before the original decision-maker, unless the legislative scheme requires the decision to be made by the [AAT] with reference to a particular point in time.

Ratio Decidendi

Legal Principle Established

Generally, the intention of the Parliament must be discerned by the language used in the statute and, in terms of the language used, the words should be given their natural and ordinary meaning (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 (per Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ)).The operation of the Child Support (Assessment) Act 1989 (Cth) The relevant referring legislation is the Assessment Act. The Assessment Act aims to ensure that children receive a proper level of financial support from their parents. Part 4 provides for applications to be made to a Registrar for administrative assessment of child support. The Registrar must, amongst other things, assess the annual rate of child support payable by a parent for the child in question (s 31). Sections 49 and 50 fall within Subdivision B (which deals with “Determination of percentage care”), which is within Division 4 (dealing with “Percentage of care”) of Part 5 (which deals broadly with “Administrative assessment of child support”). The Registrar is obliged to identify a pattern of care for the child during the care period. Section 49 applies where the Registrar is satisfied that a responsible person for the child “has had, or is likely to have” no pattern of care and s 50 applies where the Registrar is satisfied that the responsible person has had, or is likely to have a pattern of care. In each case, the Registrar must determine the responsible person’s percentage of care for the child during the care period (subs (2) in each case). Where the Registrar determines, and is satisfied, that the responsible person for the child “has had, or is likely to have” no pattern of care for the child during the care period, the percentage of care determined “must be 0%” (s 49(1)(3)). Where the Registrar determines, and is satisfied, that the responsible person “has had, or is likely to have” a pattern of care for the child during the care period, the percentage of care determined by the Registrar under s 50(3) “must be a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person has had, or is likely to have, during the care period”.The opposing interpretations As I have said earlier (at [24]), the AAT identified two different interpretations: one described as a “point-in-time approach”, based on the assumption that the legislation incorporates a temporal element as to the making of a care percentage decision, and a competing interpretation, which is based upon there being no temporal limitation. As to the “point-in-time approach”, the Deputy President in Chadwick and Cummins (Child Support) [2016] AATA 2009 (Chadwick) concluded that:4.… Both [ss 49 and 50] reflect the idea that the [Department of Human Services - Child Support (the Department)] makes point-in-time care decisions on the basis of what has happened up until the change in care is considered and what is likely to happen thereafter. Of course, what is likely to happen may not eventuate and when such a divergence occurs, a parent can notify the Department and a new care determination can be made. However, the legislative test at first instance and on review remains the same: what had happened until the date of the notification and what was likely to happen thereafter?…9.… However, given the scheme of the [AAT] Act (existing care percentages generally apply until a change is notified and a new decision with mostly prospective effect is made), the real test is to consider the actual or likely pattern of care when (the applicant) notified the Department … This involves an assessment of past care to notification … and likely future care (the extent of past and future assessment depending on the care period identified as appropriate to use). It is not the [AAT’s] task here to assess care in retrospect, taking account of actual care to the date of hearing.(emphasis in original)