Child Support Registrar v DQFY

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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

VXQB v Child Support Registrar [2021] FCA 48
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

  1. 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.

  2. 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.

  3. The Registrar was represented by counsel at the hearing and…

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Details
Case
[2023] FCA 601
Decision Date

CaseChat Overview and Summary

The appellant Child Support Registrar sought to appeal from the second review decision of the Administrative Appeals Tribunal (Tribunal). The Registrar had revoked a determination of the percentage of care and made two new care percentage determinations. The Registrar submitted that the Tribunal misconstrued sections 50 and 54F of the Child Support (Assessment) Act 1989 (Cth) and that the first care percentage determination was illogical or based on no evidence. The Registrar also submitted that the second care percentage determination exceeded the Tribunal’s jurisdiction or powers. The Tribunal dismissed the appeal. The Registrar’s submissions as to the correct application of sections 50 and 54F of the Assessment Act were considered by the Court. The Court found that the Tribunal did not misconstrue the relevant statutory provisions and that the first care percentage determination was not illogical or based on no evidence. The Court also found that the second care percentage determination was within the Tribunal’s jurisdiction and powers. The appeal was dismissed.

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

The Registrar correctly observed that this Court has jurisdiction in this appeal because the notice of appeal raises questions of law as to the application of ss 50 and 54F of the Assessment Act and the respondents do not suggest otherwise. Further, s 44(1) of the AAT Act is not displaced by s 44(1A) because the decision appealed to this Court was made in the General Division of the Tribunal, not the Social Services and Child Support Division.BACKGROUND This background is taken largely taken from the Registrar’s written submissions. On 11 April 2017, the Registrar made a determination that, from 7 March 2017, the “percentage of care” was 27% (father) and 73% (mother) (April 2017 determination). On 6 July 2018, the father notified the Registrar of a change in the actual care of the children. He claimed that he had the children for three nights per week (or 42% the time) from 1 April 2017. Also on 6 July 2018, a delegate of the Registrar:(a)Made a decision (under s 54F of the Assessment Act) to revoke the April 2017 determination; and (b)Made a new determination (under s 50(2) of the Assessment Act) reflecting a change to the percentage of care of the children by each of the father (42%) and the mother (58%) from 1 April 2017 (July 2018 determination). The July 2018 determination therefore had the effect of reducing the child support payable by the father in respect of the children. The July 2018 determination took effect from 6 July 2018, as the father had notified the Registrar that the care of the children that was actually taking place did not correspond with his “existing percentage of care” for them under the April 2017 determination more than 28 days after that change had occurred (ie, from 1 April 2017): see s 54F(1)(c) and (2)(c). On 14 July 2018, the mother objected to the delegate’s decision pursuant to s 80A of the Registration and Collection Act. On 5 September 2018, another delegate of the Registrar (referred to in oral submissions as the “objections officer”):(a)Made a decision to allow the mother’s application pursuant to s 87(1)(b)(ii) of the Registration and Collection Act (objection decision);(b)Revoked the July 2018 determination under s 54H of the Assessment Act; and(c)Made a determination under s 50(2) of the Assessment Act reflecting a change to the percentage of care of each of the father and the mother to 28% and 72% respectively from 1 April 2017.The objection decision took effect from 6 July 2018. The Registrar contends, and the respondents do not dispute, that the “change of care” day was 1 April 2017. The Details of Objection Decision which accompanied the notification of the objection decision included the following:WE CONSIDERED THE FOLLOWING EVIDENCE IN THE DECISIONOn 6 July 2018 [the father] advised he had been having 3 nights per week. [The father] advised that he could not remember exactly when this commenced, but it would have been in April 2017. The date of event was keyed as 1 April 2017. [The father] advised this was an agreement between them and that they were working through mediation.On the same day it is documented [the mother] called and agreed to the change in care as advised by [the father].On the same day the decision was made to accept the change in care as advised by [the father].On 14 July 2018 an objection was received from [the mother] in writing.On 23 July 2018 in response to the objection lodged by [the mother], [the father] advised:I disagree with the objection from [the mother] and I will follow up with evidencePrior to 6 July 2017, they would have been in my care for 2 nights per week until I moved into my own place.There was a period of about 2.5 weeks where I was in between accommodation, I was staying with a friend until my place became available so at that time I didn’t have them for which I will send in evidenceFrom 6 7.17 was when the 3 nights per week started when I moved into my own place.REASONS FOR THE DECISIONIn order to make a decision to change the record of care for a child we must be satisfied that there has been a change to the ongoing pattern of care (section 49 and 50 of the Child Support (Assessment) Act 1989).The pre-existing pattern of care for [the two children] reflected [the mother] having 265 nights per year or 763 [scil 73] per cent and [the father] having 100 nights per year or 27 per cent from 7 March 2017.During the original decision [the father] advised he had been having 3 nights care per week and that this commenced sometime in April 2017. On speaking with [the mother] it is documented that she agreed with the change in care as advised by [the father].During the objection process [the mother] advised she agreed to adjust the percentage of care for [the father] to have 2 nights care per week. On speaking with [the father] he advised [that] prior to 6 July 2017, he was having 2 nights care per week until he moved into his own place. [The father] advised there was a period of about 2.5 weeks where he was in between accommodation when he didn’t have care and that from 6 July 2017 was when the 3 nights care per week started. Despite a commitment to provide evidence to support his claims of care at the time of writing this report nothing has been received.When reviewing this information, there is agreement to a point in that [the mother] advised [the father’s] care is 2 nights per week and [the father] advised from April 2017 to 5 July 2017 his care was 2 nights per week. [The father] advised from 6 July 2017 his care has increased to 3 nights per week. In the absence of evidence from [the father] to support this we have made the decision to reflect the care of [the two children] as [the mother] having 261 nights per year or 72 per cent and [the father] having 104 nights per year or 28 per cent which is based on minimum point of agreement.Before a new care determination can be made, the previous determination must be revoked.Considering the legislation regarding when a care determination can be revoked, we are satisfied that the previous care of [the mother] having 265 nights per year or 763 [scil 73] per cent and [the father] having 100 nights per year or 27 per cent should be revoked from 1 April 2017 under Section 54H of the Assessment Act 1989, as the new level of care will affect the care percentage (but not the cost percentage).The objection is allowed.I understand that the objection officer’s decision that there was no change in the “cost percentage” to be because, prior to the July 2018 determination, the father’s percentage of care had been 27% and the objection decision had the effect of increasing it by 1% with effect from 6 July 2018, which results in no change to the cost percentage: see [15] above.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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. Division 4 of Part VIIA deals with applications for AAT second reviews. Section 96A(b) permits an application to be made for an AAT second review of a decision under s 43(1) of the AAT Act on AAT first review of a care percentage decision. Division 5 of Part VIIA deals with other matters relating to AAT second reviews. Section 97A(2) provides that the AAT Act applies in relation to an application under s 96A(b) (that is, an AAT first review of a care percentage decision) as if the reference in s 30(1)(b) of the AAT Act to who made the decision were a reference to each person who was a party to the relevant AAT first review, other than the applicant for the AAT second review. For reasons set out at [22] above, the Registrar was a party to the AAT first review.

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.