Colbert and Colbert and Anor
[2016] FCCA 3236
•15 December 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| COLBERT & COLBERT & ANOR | [2016] FCCA 3236 |
| Catchwords: CHILD SUPPORT – Appeal (Child Support) from the AAT – procedural fairness grounds dismissed – failure to take into account relevant consideration ground dismissed. |
| Legislation: Administrative Appeals Tribunal Act 1975, p. IV, s.44AAA Child Support (Assessment) Act 1989, p. 6A., ss.117(2)(b)(ib), 117(2)(b)(ii), 117(2)(c)(ia) Child Support (Registration and Collection) Act 1988, p.VIIA |
| Cases cited: Abebe v The Commonwealth [1999] HCA 14 Carlson & Acuff & Anor (SSAT Appeal) [2010] FMCAfam 677 Child Support Registrar & Crabbe and Anor [2014] FamCAFC 10 Child Support Registrar & Crowley and Anor [2015] FamCAFC 76 Child Support Registrar & Scullin and Anor (SSAT Appeal) [2015] FamCAFC 200 Haritos v Commission of Taxation [2015] FCAFC Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 |
| Applicant: | MR COLBERT |
| First Respondent: | MS COLBERT |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | BRG 587 of 2016 |
| Judgment of: | Judge Cassidy |
| Hearing date: | 7 October 2016 |
| Date of Last Submission: | 7 October 2016 |
| Delivered at: | Brisbane |
| Delivered on: | 15 December 2016 |
REPRESENTATION
| The Applicant appeared in person |
| The First Respondent appeared in person by telephone |
| Solicitors for the Second Respondent: | Mr C Bishop of Department of Human Services |
ORDERS
That the Amended Notice of Appeal (Child Support) filed on 13 September 2016 be dismissed.
That there be no order as to costs.
IT IS NOTED that publication of this judgment under the pseudonym Colbert & Colbert & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 587 of 2016
| MR COLBERT |
Applicant
And
| MS COLBERT |
First Respondent
| CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed on 13 September 2016 by Mr Colbert and it is a Notice of Appeal (Child Support). The appeal seeks to review a decision of the Administrative Appeals Tribunal (‘the AAT’) dated 22 April 2016.
The appeal must be brought on a question of law pursuant to s.44AAA of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’).
The AAT decision under review decided to set the applicant’s adjusted taxable income at $78,000 for the period of 23 April 2014 to 30 June 2016. In addition, the AAT increased the annual rate of child support by $978 for the period of 1 January 2015 to 31 December 2015.
The applicant sets out three questions of law and provides five grounds of appeal in the Notice of Appeal that he filed on 13 September 2016.
The Material
The material relied on by the applicant:
a)The Notice of Appeal filed on 13 September 2016 (‘the Amended Notice of Appeal);
b)The applicant’s Affidavit filed on 13 September 2016; and
c)With leave, parts of an Affidavit filed by the applicant on 29 June 2016 ruled admissible at the hearing.
The Child Support Registrar relied upon the following material:
a)The Written Submissions filed on 28 September 2016; and
b)With leave the Affidavit of Ms D filed on 28 September 2016.
The Court also considered the Administrative Appeals Tribunal Decision and Reasons for Decision dated 22 April 2016.
Background Facts
The applicant and the first respondent are the parents of two young children X, who was born on (omitted) 2009 and is presently 7 years old and Y, who was born on (omitted) 2010 and is presently 6 years old. These two children are the subject of a Child Support Assessment.
On 24 July 2015 the first respondent applied to the Child Support Registrar (‘the Registrar’) for a departure of the administrative assessment under Part 6A of the Child Support (Assessment) Act 1989 (‘the Assessment Act’). The basis for the application was the high cost of privately educating the children, the high cost of childcare and the income, assets and financial resources of the applicant pursuant to ss.117(2)(b)(ii), 117(2)(b)(ib) and 117(2)(c)(ia) of the Assessment Act.
On 17 November 2015 a senior case officer determined that all three grounds of the departure were established and made a departure determination.
The applicant objected to that decision and on 15 January 2016 that objection was partly allowed.
On 4 February 2016 the applicant lodged an application for review of the objection decision with the AAT.
The AAT decision on 22 April 2016 set aside the decision under review and substituted the following decision:
a)From 23 April 2014 to 30 June 2016 the adjusted taxable income of the applicant is varied to $78,000; and
b)From 1 January 2015 to 31 December 2015 the annual rate of child support payable by the applicant is increased by an amount of $978.
I consider that the submissions of the Registrar filed on 28 September 2016 adequately summarise the reasons for decision provided by the AAT in paragraphs 19-28 and I record those reasons here as a summary of the decision:
“[19] In its reasons for decision (RD) the AAT set out the legislative framework and, it is submitted, correctly summarised the issues it had to determine as (RD [6]):
[19.1] whether one or more of the grounds for departure referred to in subsection 117(2) of the Assessment Act exist; and, if so
[19.2] whether it would be just and equitable as regards the child, the First Respondent and the Applicant to make a particular determination; and
[19.3] whether it would be otherwise be proper to make a particular determination.
[20] The AAT addressed the first issue by considering whether special circumstances existed because of the income, property and financial resources or the earning capacity of either parent pursuant to subsections 117(2)(c)(ia) and (ib) of the Assessment Act. Relevantly, the AAT states it took into account the documentary evidence provided by the Registrar (some 1158 pages) in addition to the oral and documentary evidence of the parties (RD [5]).
[21] In considering this evidence regarding the income, property and financial resources of the Applicant, the AAT made the following findings of fact:
[21.1] From 24 April 2014 the administrative assessment was based on the Applicant’s estimated income of nil and from 1 July 2014 a reconciled estimate of $21,600 resulting in child support liability of $390 per annum payable by the Applicant (RD [30]);
[21.2] From 24 January 2015 the First Respondent became liable to pay child support to the Applicant (RD [30]);
[21.3] From April 2014 the Applicant has access to the $110,000 resulting from the sale of the business and he regained employment in August 2014 (RD [31]);
[21.4] The Applicant elected to pay the sum of $60,000 to his parents, who also provided him with rent-free accommodation for a period in excess of 12 months and he retained $40,000 for his own use (RD [32]-[33]).
[21.5] In addition, during the period 1 July 2014 to 7 August 2015 the Applicant received or earned a further $33,965 (RD [37]).
[22] In relation to the Applicant’s earning capacity, the AAT referred to the following evidence:
[22.1] The Applicant commenced employment with (employer omitted) on (omitted) 2014 as (occupation omitted) earning approximately $3,000 per fortnight (RD [45]);
[22.2] The Applicant stated he was not prepared to travel to Brisbane as often as required by his employer and that he was required to attend numerous court proceedings during this time (RD [12]);
[22.3] The Applicant however acknowledged that he travelled regularly to Brisbane during this period to visit his girlfriend (RD [49]);
[22.4] The Applicant stated his marital issues meant he could not give his full attention to the job and his resignation, at the end of his probation period, was mutually agreed with his employer (RD [12]);
[22.5] The Applicant was unable to recall the name of his (sic) the person or his superior at (employer omitted) that he spoke to with respect to his performance prior to his resignation (RD [40]);
[22.6] The Applicant contacted the department on 6 August 2014, eight days prior to commencing employment with (employer omitted), to ensure the continuation of his nil estimate, at which point he informed that he was studying full-time and being financially support(sic) by his parents (RD [46]);
[22.7] The Applicant was informed by letter that he was required to notify the department of any change in his circumstances however following commencing employment with (employer omitted) on 14 August 2014 he took no steps to inform the department or update his estimated income (RD [46]);
[22.8] Almost immediately after his resignation, the Applicant completed a two week course on the (omitted) over a five week period, during each week block the Applicant stayed in Brisbane with his girlfriend (RD [49]);
[22.9] The Applicant was declared bankrupt in September 2015 following acceptance of his debtor’s petition discharging the debt owed to the First Respondent’s parents, who claim the Applicant owed them $60,921 (RD [19]-[20]);
[22.10] The Applicant claimed he had little chance of obtaining employment in the banking sector following his bankruptcy.
[23] On account of his evidence the AAT found that the test under subsection 117(7B) of the Assessment Act was satisfied, making the following findings of fact:
[23.1] The Applicant, having resigned his employment in November 2014, was not working despite ample opportunity to do so (RD [39]);
[23.2] The decision to not work and/or change his working pattern was not justified on the basis of his caring responsibilities or state of health (RD [41]); and
[23.3] The Applicant has not demonstrated that the decision to resign his employment was not motivated by desire, either wholly or substantially, to avoid his child support obligations (RD [44]).
[24] In respect of the Applicant’s motivation the AAT relied on his failure to notify the department of his change in circumstances following obtaining employment on (omitted) 2014, the likelihood that he knew of the job offer at the time when he lodged the nil estimate on 6 August 2014 and even if that were not the case, his failure to advise of his new income and update his estimate (RD [47]).
[25] The AAT found the Applicant had an earning capacity in the vicinity of $78,000 per annum, being the income he was earning from (employer omitted) prior to his resignation (RD [50]).
[26] The AAT subsequently found this case gives rise to special circumstances and the administrative assessments based on the Applicant’s nil estimate and his amended estimate of $21,600 resulted in an unjust and inequitable determination of child support. This finding was made in respect of both the financial resources available to the Applicant and his earning capacity meaning that two grounds of departure were established (RD [51]).
[27] The AAT addressed the second issue being what particular determination would be just and equitable with regard to matters in subsection 117(4) of the Assessment Act: RD [52]-[74]. After considering the relevant matters as noted, the AAT found that from all of the Applicant’s financial resources and earning capacity that it was just and equitable for him to have continued to meet his child support assessment (RD [67]).
[28] The third issue addressed whether it was otherwise proper to make the particular determination and the AAT found that the Frist Respondent was in receipt of family tax benefit, based on her income and the child support she received. On this basis the AAT was satisfied the particular determination was otherwise proper (RD [76]).”
Appeals on Question of Law
An appeal brought under s.44AAA of the AAT Act is limited to an appeal on a question of law.
A particular question of law which is set to arise from a decision of a tribunal should be stated with sufficient precision (Haritos v Commission of Taxation [2015] FCAFC at [97]).
I accept in Child Support Registrar & Crowley and Anor [2015] FamCAFC 76 the Full Court of the Family Court stated at paragraph 22-24:
“[22] … Appeals from the Tribunal to, relevantly, the FCCA lie only on a question of law (s 110B of the Registration Act).
…
[24] A consequence of the confined nature of appeals from the Tribunal to the FCCA is a requirement that the grounds of appeal to that court be drawn with particular precision and with a precision which bears that restriction firmly in mind.”
I accept that the principles that emerge from the authorities in relation to child support appeals have been considered in Child Support Registrar & Crabbe and Anor [2014] FamCAFC 10 and provide for the following (as summarised in the submissions of the Registrar filed on 28 September 2016 at paragraph 32):
“- The question of whether there is evidence to support a finding of fact or an inference drawn from findings of fact is a question of law (Al-Miahi).
- The making of a finding of fact or the drawing of an inference in the absence of evidence is an error of law (Al-Miahi).
- A wrong finding of fact is not an error of law (Al-Miahi).
- A finding of fact based on reasoning that is “demonstrably unsound” or on an “illogical course” or a “faulty process” of reasoning is not an error of law (Al-Miahi).
- Judicial review is not to be over-zealous in seeking to find inadequacy of reasoning by an administrative decision maker; the review of the reasons of an administrative decision maker must not be turned into a reconsideration of the merits of the decision (Wu Shan Liang).
- Section103X(3)(b) of the Collection Act (by analogy with s430 of the Migration Act) requires the SSAT to do no more than set out the findings which it did make on facts which it considered material to the decision which it made (Yusuf).”
Procedural Fairness
The first two “questions of law” set out in the Amended Notice of Appeal filed on 13 September 2016 are:
“1. The tribunal member failed to provide procedural fairness in the proceedings by not requesting further information or allowing the applicant an opportunity to provide additional information around the cessation of employment and bankruptcy.
2. The absence of full transparency, equal communication and fairness in allocation of resources used to resolve the dispute created an imbalance in the proceedings which favoured one party over the other.”
The obligation that the AAT has to accord procedural fairness has been considered in Child Support Registrar & Scullin and Anor (SSAT Appeal) [2015] FamCAFC 200 and the Full Court of the Family Court states that ultimately the concern of the Court is to avoid “practical injustice”.
I accept that the context of procedural fairness must be viewed from within its particular statutory framework as set out in Part IV of the AAT Act and Part VIIA of the Child Support (Registration and Collection) Act 1988 (‘the Collection Act’).
I note in Minister for Immigration & Citizenship v SZGUR [2011] HCA 1:
“[9] … Procedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power. The decision-maker must also advise of any adverse conclusion which would not obviously be open on the known material. However, a decision-maker is not otherwise required to expose his or her thought processes or provisional views for comment before making the decision.”
Grounds one and two of the applicant’s amended appeal assert that the applicant was not provided procedural fairness because the AAT did not request further information or allow the applicant an opportunity to provide additional information around his cessation of employment and bankruptcy.
On 23 March 2016 the AAT issued directions requiring the parties to make full and frank disclosure of their financial circumstances, specifically requiring the applicant to provide a copy of any Notice of Bankruptcy and permitting the parties to provide any other evidence together with any written submissions by 8 April 2016.
I therefore am satisfied that the applicant was afforded an opportunity to place whatever evidence he wished before the AAT. I accept that while the proceedings before the AAT are inquisitorial, the AAT does not assume the role of a contradictor and is not under any duty to make further enquiries (Abebe v The Commonwealth [1999] HCA 14 at [187]).
The applicant asserts there was an error and the applicant was denied procedural fairness because he was not appealing the issue of his cessation of employment and he was not specifically requested to provide evidence on this point.
I accept that the applicant was seeking a full merits review by the AAT and his earning capacity and his cessation of employment were clearly issues before the AAT. For that reason any assertion to the contrary misconceives that nature of the merits review.
I am therefore satisfied that that ground of the appeal must fail in relation to the applicant’s cessation of employment and bankruptcy.
The second “question of law” was:
“2. The absence of full transparency, equal communication and fairness in allocation of resources used to resolve the dispute created an imbalance in the proceedings which favoured one party over the other.”
I do not accept the claim by the applicant that he was taken by surprise in relation to the issues, as they were live before the AAT. I therefore accept that there is no error disclosed for the reasons I have just outlined in the first ground.
I also accept the submission of the Registrar that if the applicant did feel surprised in relation to these issues it was open to him to seek an adjournment or alternatively to lodge further documents following the hearing. I accept that the transcript discloses that the applicant did neither.
The second assertion of error seems to be an assertion that the applicant was denied procedural fairness because the AAT found that he failed to provide relevant information. I accept, as was set out in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs[2006] HCA 63:
“[48] … Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.”
I am satisfied that that ground must fail.
Ground four of the applicant’s amended appeal asserts that the applicant was denied procedural fairness on account of his decision to not engage legal representation. The fact is that majority of the individuals before the AAT appear in person and that was something that the decision-maker told the applicant. I accept that neither the applicant nor the first respondent were represented before the AAT. The applicant’s subsequent perception once advised of this information does not equate to a denial of procedural fairness. I note that the applicant acknowledged that he was afforded the opportunity to engage legal representation and elected not to do so.
I accept the Registrars submission that this ground must fail.
The applicant’s fifth ground asserts that a combination of his various complaints resulted in an unfair hearing and created a power imbalance such that he was denied procedural fairness.
I accept the Registrars submission at paragraphs 60, 61 and 62 of his written submissions filed on 28 September 2016 and therefore this ground must fail.
Failure to take into Account a Relevant Consideration
The applicant asserts in his third “question of law” and supporting ground of appeal that the AAT failed to take into account the consideration of the mental health of the applicant. The failure to take into account a relevant consideration can only be made out if the decision-maker fails to take into account a consideration which he is bound to take into account in making that decision (Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 at [15]).
I note that the AAT found that the applicant’s decision not to work was not justified on the basis of the state of health and the applicant did not demonstrate that the effect on his child support assessment was not a major purpose for his decision to stop work with (employer omitted).
The decision of the AAT quoted Carlson & Acuff & Anor (SSAT Appeal) [2010] FMCAfam 677 where Reithmuller J stated in relation to the onus placed on a parent:
“[68] The very technical and convoluted wording of the section hides its practical meaning. The section can be seen in a simplified or practical form as requiring consideration of the question of whether the person has proved that their major purposes(sic) did not include a desire to simply affect child support. That is, to reframe the consideration into loose colloquial language: was the person’s action motivated (wholly or significantly) by a desire to shirk their child support obligations. If the Tribunal is not satisfied one way or the other, the person with the onus fails. …”
The applicant provided various submissions to the AAT about his decision to resign from (employer omitted) and I accept that at no stage did the applicant assert that his decision to resign was precipitated by a health condition. There is only one mention of it in the transcript.
At page 14 of the transcript Mr Colbert’s evidence is that:
“It was a mutual decision that I resign”
There was no mention of health in relation to the answer to that question.
At page 15 of the transcript it is recorded:
“MS WILLIAMS: So your decision to resign, did it have anything to do with the fact that… the Department was looking to what you were earning and looking at increasing your child support assessment?
To this question Mr Colbert replied “no” and went on to say that there was:
“MR COLBERT: … ongoing psychological impact of having the children… away from me…”
At page 34 of the transcript the applicant said:
“Head office was in (omitted) and that’s where they wanted us but my major concern and the stress that I was under… my attendance had slipped …”
This was the only other mention of stress.
At page 35 the transcript records:
“that would be an ideal job. … and go down there and have a relationship so… on my completion(sic) other than self-preservation, like, of my mental health”
That was the only mention of issues of mental health before the tribunal and there was no independent evidence to support a contention that the applicant’s decision to resign was precipitated by a health condition.
I accept on the transcript that the applicant denied that his decision was motivated by an impact on his child support assessment. The AAT considered, amongst other things, the travel associated with Mr Colbert’s new relationship and his study. This saw the applicant traveling to Brisbane regularly, despite his reason for resigning being that it was difficult for him to travel to Brisbane.
The AAT also noted that the applicant failed to notify the department that he was earning $76,000 despite the fact that only eight days prior to taking up this employment he asserted that he was studying and living with his parents. Therefore, he failed to inform the department of that change.
I am persuaded on the face of the AAT decision that the decision-maker considered the evidence in relation to the applicant’s resignation and made the necessary findings under the Assessment Act. These findings were ones of fact and were open on the evidence.
I therefore accept the submission of the Registrar that the ground of appeal must fail.
Conclusion
I am not satisfied that the AAT failed to afford the applicant procedural fairness in relation to the grounds of appeal that relates to that assertion made by the applicant.
I am also not satisfied that the AAT failed to consider a relevant consideration in relation to the applicant’s mental health.
I accept the submissions of the Registrar that the appeal must fail.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Cassidy
Date: 14 December 2016
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