FEDERAL COURT OF AUSTRALIA
Child Support Registrar v DQFY [2023] FCA 601
Appeal from: DQFY and Child Support Registrar (Child support second review) [2020] AATA 2174 File number: VID 518 of 2020 Judgment of: FARRELL J Date of judgment: 7 June 2023 Catchwords: ADMINISTRATIVE LAW – appeal from second review decision of the Administrative Appeals Tribunal (Tribunal) – where Tribunal revoked determination of percentage of care decision and made two care percentage determinations – whether Tribunal misconstrued ss 50 and 54F of the Child Support (Assessment) Act 1989 (Cth) – whether first care percentage determination was illogical or was based on no evidence – whether second care percentage determination exceeded Tribunal’s jurisdiction or powers – appeal dismissed Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 30, 41, 43, 44
Child Support (Assessment) Act 1989 (Cth) ss 5, 35A, 49, 50, 54A, 54F, 54G, 54H, 55C; Part 5
Child Support (Registration and Collection) Act 1988 (Cth) ss 79E, 85, 87, 87A, 89, 95D, 96A, 97A, 97B; Parts VII, VIIA
Family Assistance and Child Support Legislation Amendment (Protecting Children) Act 2018 (Cth) s 2; Sch 1, items 22-39
Cases cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Child Support Registrar v MQMV [2019] FCA 1171
Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
VAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 98 Date of last submission: 6 April 2021 (applicant) Date of hearing: 23 March 2021 Counsel for the applicant: Mr B Kaplan Solicitor for the applicant: Sparke Helmore Lawyers Counsel for the first respondent: The first respondent appeared in person Counsel for the second respondent: The second respondent appeared in person ORDERS
VID 518 of 2020 BETWEEN: CHILD SUPPORT REGISTRAR
Applicant
AND: DQFY
First Respondent
JCDG
Second Respondent
ORDER MADE BY:
FARRELL J
DATE OF ORDER:
7 JUNE 2023
THE COURT ORDERS THAT:
1.The appeal on questions of law is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
FARRELL J:
INTRODUCTION
This is an appeal on questions of law brought under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act)) by the Child Support Registrar from decisions made by the General Division by the Administrative Appeals Tribunal (or AAT) on 6 July 2020: see [47] below.
The respondents, DQFY (father) and JCDG (mother) are the parents of two children. They live in separate households and they share care of their two children.
The Registrar was represented by counsel at the hearing and…
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- Case
- [2023] FCA 601
- Decision Date
CaseChat Overview and Summary
Orders
Orders of the court
1. The appeal on questions of law is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The second relevant law is the Child Support (Registration and Collection) Act 1988 (Cth) (Registration and Collection Act). Part VII of the Registration and Collection Act contains provisions which deal with internal reviews of the Registrar’s decisions. The object of Part VII is “to provide for internal reconsideration of decisions of the Registrar before the decisions may be reviewed by the AAT”: s 79E; Div 1 of Part VII. Division 2 of Part VII of the Registration and Collection Act deals with decisions against which objections may be lodged. Section 80A falls in that Division. It provides that either a carer entitled to child support or the liable parent may lodge with the Registrar, or the Secretary, an objection to a “care percentage decision”. In this case, the determination to which objection was taken was the July 2018 determination (see [32] below). Section 87, which falls in Div 5 of Part VII, relevantly provides (in s 87(1)) that the Registrar must, within 60 days after an objection was lodged, either disallow the objection or allow it in whole or in part. For ease of reference, I will refer to this Registrar’s decision as the “objection decision”. In this case, the objection decision was made on 5 September 2018 (see [34] below). Part VIIA of the Registration and Collection Act deals with review by the AAT of decisions made by the Registrar in response to objections. As explained in s 87A:Certain decisions made by the Registrar on reconsideration under Part VII are reviewable by the AAT. A person may apply to the AAT for review of such a decision (an “AAT first review”).The person may apply to the AAT for a further review (an “AAT second review”) if the person is dissatisfied with any of the following decisions of the AAT:(a)a decision to refuse an extension of time for a person to make an application for AAT first review;(b)a decision on AAT first review of a care percentage decision;(c)a decision in relation to the date of effect of a decision on AAT first review of a care percentage decision.The rules relating to reviews by the AAT are mainly in the AAT Act, but the operation of that Act is modified in some ways by this Part.The AAT Act allows a person to appeal to a court on a question of law from a decision of the AAT. Division 2 of Part VIIA deals with applications for AAT first reviews. Section 89 allows either:(a)The person who raised the objection the subject of the objection decision made under s 87; or (b)The person who was entitled to be served a copy of the objections and accompanying documents under s 85,to make an application to the AAT for review of the objection decision made under s 87. Division 3 of Part VIIA deals with other matters relating to the AAT first review. Relevantly, s 95D of the Registration and Collection Act provides that the parties to an AAT first review of a decision “include, in addition to the parties referred to in subsection 30(1) of the AAT Act, any other person who, under section 89 of this Act, is a person who may apply for review of the decision”. Section 30(1)(b) of the AAT Act provides that “the person who made the decision” is a party to a proceeding before the Tribunal. Relevantly to these proceedings, the person who made the decision under review in the AAT first review is the Registrar.