Conlan v Conlan
[2019] FCCA 514
•5 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CONLAN v CONLAN & ANOR | [2019] FCCA 514 |
| Catchwords: CHILD SUPPORT – Appeals – review of a decision of the Administrative Appeals Tribunal – no error of law – application dismissed. |
| Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s.44AAA |
| Cases cited: Maple & Niu & Anor(No.2) [2018] FCCA 26 Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 |
| Applicant: | MR CONLAN |
| First Respondent: | MS CONLAN |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | BRG 488 of 2018 |
| Judgment of: | Judge Cassidy |
| Hearing date: | 3 December 2018 |
| Date of Last Submission: | 3 December 2018 |
| Delivered at: | Brisbane |
| Delivered on: | 5 March 2019 |
REPRESENTATION
| For the Applicant: | Self-represented |
| For the First Respondent: | Self-represented |
| Solicitors for the Second Respondent: | Mills Oakley Lawyers |
ORDERS
That the Notice of Appeal (Child Support) filed by the Applicant on 17 May 2018, be dismissed.
That the Applicant pay the Second Respondent’s costs, fixed in the sum of $7,200.00, within sixty (60) days.
IT IS NOTED that publication of this judgment under the pseudonym Conlan v Conlan & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 488 of 2018
| MR CONLAN |
Applicant
And
| MS CONLAN |
First Respondent
| CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant lodged a Notice of Appeal (Child Support) on 1 May 2018. The Notice was filed on 17 May 2018. This is an appeal pursuant to section 44AAA of the Administrative Appeals Tribunal Act 1975 (Cth) (“the Act”). The Administrative Appeals Tribunal (“AAT”), reviewed a child support decision on 19 March 2018 and it is this decision that the Applicant appeals.
Background
The parties are the parents of [X] (“the child”). The child is seven years old. The child’s date of birth is … 2012. The father is an Australian citizen who is resident in Country A. The mother is also an Australian citizen.
The mother applied for an administrative assessment of child support on 10 January 2017. The application was accepted on 6 March 2017 and took effect from 10 January 2017. The father lodged an objection to the decision. The father’s objection was that the mother had filed an application in the Country A Courts for maintenance of the child. This objection was disallowed on 4 September 2017.
It was from this decision the father lodged an application for review in the AAT. On 19 March 2018, the AAT affirmed the decision. It is that decision of the AAT that is the basis of this appeal. As I have said, the appeal was lodged on 1 May 2018 and filed 17 May 2018.
The law
The Child Support Registrar (“the Registrar”), has accurately set out the law that applies to this appeal at paragraphs [15]-[19] of the Outline of Submissions filed 26 November 2018:
“A question of law
15. Consistent with the previous appeal regime under section 110B of the Child Support (Registration & Collection) Act 1988 (Collection Act), an appeal under s44(1) and s44AAA of the AAT Act is limited to an appeal “on a question of law”. In other words, this Court’s jurisdiction is only enlivened by a question of law properly raised on the appeal.
16. A particular question of law, which is said to arise from a decision of a Tribunal, should be stated with sufficient precision.[1] While the Second Respondent acknowledges the statutory requirement placed on this Court to proceed with undue formality (sic), in Child Support Registrar & Crowley and Anor [2015] FamCAFC 76, the Full Court of the Family Court stated at [22] and [24]:
[1] Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 at [62].
Appeals from the Tribunal to, relevantly, the FCCA lie only on a question of law (s110B of the [Collection] Act).
…
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 which bears that restriction firmly in mind.
17. Compliance with this prerequisite ensures the merits of a case are dealt with, not by the Court, but by the Tribunal, a “distribution of function [which] is critical to the correct operation of the administrative review process.”[2]
[2] Repatriation Commission v Owens (1996) 70 ALJR 904 at 904.
18. As to the principles that emerge from the authorities in relation to child support appeals, the Full Court of the Family Court in Child Support Registrar & Crabbe and Anor [2014] FamCAFC 10 provided the following relevant summary at [54]:
The question of whether there is evidence to support a finding of fact or an inference drawn from finding 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).
Section 103X(3)(b) of the Registration and Collection Act (by analogy with s 430 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).
19. A question of law should be stated with precision because it is the question that enlivens the Court’s jurisdiction.[3] A mere assertion that the AAT “erred at law” in making a particular finding does not raise a question of law.[4]”
[3] Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 at [97].
[4] Penman & Child Support Registrar & Anor [2013] FCCA 492 at [112]-[122].
The father’s appeal
The Notice of Appeal (Child Support) filed 17 May 2018, provides:
“Question of law
1. COUNTRY A FAMILY COURT ORDER FOR CHILD MAINTENANCE
2. ABUSE OF PROCESS
3. DOUBLE JEOPARDY
4. RES JUDICATA
Grounds of appeal
1. COUNTRY A FAMILY COURT ORDER FOR CHILD MAINTENANCE
2. ABUSE OF PROCESS
3. DOUBLE JEOPARDY
4. RES JUDICATA
5. REGISTRABLE OVERSEAS MAINTENANCE LIABILITY
6. AFFIDAVIT OF MR CONLAN SUBMITTED”
The Registrar submits that these purported questions of law are not questions at all, and that the grounds of appeal fail to provide any particulars to make the appeal meaningful. The Registrar submits in the absence of particulars, the father is unable to make out any error in the AAT decision and his appeal must fail: Penman & Child Support Registrar & Anor [2013] FCCA 492 at [111]-[113].
I note that the father was given an opportunity to file an Amended Notice of Appeal by 1 November 2018. He did not do this. On the hearing date, the father sought to file this Amended Notice of Appeal. Leave was not granted to file that document on the morning of the hearing.
The question of paternity and DNA testing
The father’s Affidavit sets out that he should not be assessed to pay child support under the Child Support (Assessment) Act 1989, because he is not a parent for the purpose of child support. I accept the submissions of the Registrar in relation to this point, set out a paragraphs [27]-[32]:
“Annexure B – Paternity and DNA testing
27. Annexure B to the affidavit appears to seek a declaration pursuant to s 107 of the Assessment Act that the Applicant should not be assessed in respect of the costs of the child. The Applicant vaguely suggests that he may not be the parent of the child because he was “busy with work and used to travel” at the time the First Respondent became pregnant. He further states that having the child was against his wishes and seeks an order be made for DNA testing as he cannot be satisfied merely on the basis of a birth certificate.
28. The Applicant’s complaints are misconceived for a number of reasons.
29. One, the AAT was satisfied that the Applicant was a parent of the child and made that finding ([1], [9] and [10]).
30, Two, the question of whether a person is a parent of a child for the purposes of the child support legislation is determined under s 29(2) of the Assessment Act. A person is deemed a parent of a child if, amongst other things, a person is or was a party to a marriage and the child was born during the marriage. On his own material, the Applicant and First Respondent were married on … 2009 and he filed a petition for divorce in or around February 2014. The child was born on … 2012 and is therefore a child of the marriage.
31. Three, the relief sought by the Applicant by way of orders of DNA testing and a declaration under s 107 of the Assessment Act cannot be sought in appeal under s 44AAA of the AAT Act. If the Applicant truly seeks such orders, the Second Respondent submits they must be brought by way of a separate application because it is a different cause of action with different parties and a different avenue of appeal: Manchester & Manchester and Ors (SSAT Appeal) [2011] FMCAfam 1215 at [11]-[13].
32. The Second Respondent submits these complaints fail to expose any error in the AAT decision.”
The appeal must fail on this point.
The question of s 29A(2) (CSAA) and reasonableness
Section 29A(2) requires the AAT to be satisfied child support is “reasonably likely to be payable by the parent.” At paragraphs [14]-[15] of the AAT decision the Member records:
“14. Subsection 29A(2) of the Act states that “the Registrar must determine whether child support is reasonably likely to be payable by the parent.” The Tribunal notes the interim maintenance order states that Mr Conlan is an “professional and has good educational qualification”. The Department has asked Mr Conlan to provide details of his overseas income, however no response was received and his child support liability has been assessed on default annual income of $48,308.
15. Mr Conlan has stated he is “not ready or willing to pay child support”. The test in subsection 29A(2) of the Act is whether child support is reasonably likely to be payable, not whether it is likely to be paid. The Tribunal is satisfied that child support is reasonably likely to be payable and so subsection 29A(2) of the Act is satisfied.”
I do not consider there is any error of law demonstrated by the Member in coming to the decision he did.
Res Judicata, abuse of process and natural justice
The father’s argument as set out in ‘Annexure C’ to his Affidavit is that the AAT has “failed to appreciate that the Principles of Natural Justice as well as Res Judicata SHALL apply in the present case.”
This argument assumes that the mother is seeking the same relief from the Country A Family Court and the Child Support Agency. The mother’s application for child support in Australia is not a judicial application to a court. The eligibility is determined in accordance with the provisions of the Child Support (Assessment) Act 1989. The interim Order in Country A in relation to child maintenance is not relevant to the application.
Furthermore, I accept the submission of the Registrar at paragraph [38]:
“38. Further, even if that were not the case the Second Respondent submits the principles of res judicata would not apply in any event, as proceedings before the Country A Family Court had not been finally determined. The intent of the principle is to prevent a party from raising in subsequent litigation an issue or cause of action already determined or an issue or cause of action that could or should have been raised in prior litigation. Critically, the decision must have been final and on the merits.”[5]
[5] See for example: Kemeny and Kemeny [1998] FamCA 34.
The questions raised by the father about the application before the Country A Family Court, in my view, are not relevant to the decision before the AAT, which was whether the mother’s application was properly made and should be accepted.
Terminating event
In this case, neither parent registered the Country A Court interim maintenance Order. There is no terminating event pursuant to s 12(1)(g) of the Child Support (Assessment) Act 1989. The operation of s 30AA of the Child Support (Registration and Collection) Act 1988, creates a rule against dual registered maintenance liabilities. The rule did not apply in this case.
Failure to consider
The father asserts the AAT failed to consider any “legal facts, points submitted by [the Applicant]”. The AAT decision sets out the facts relied on by the father at paragraph [13]:
“13. Mr P has submitted that the application should not have been accepted because:
· Divorce proceedings had been filed in Country A;
· An interim order was made by the Family Court in Country A in March 2016 that Mr Conlan is required to pay maintenance to [X] and Ms Conlan;
· Ms Conlan should challenge that decision if she is dissatisfied by the maintenance awarded rather than filing an application with the Department and her application is vexatious and frivolous;
· Ms Conlan left Country A with her daughter without Mr Conlan’s consent or knowledge;
· The Department did not determine whether child support was reasonably likely to be payable by Mr Conlan.”
This complaint fails to demonstrate an error of law.
Conclusion
The father’s appeal must fail as it does not disclose an error of law.
Costs
I accept the Registrar’s submissions in relation to costs at paragraphs [44]-[45]:
“Costs
44. As this proceeding arises under the AAT Act, costs follow the event: Maple & Niu & Anor [2018] FCCA 26 at [9] and [16] (sic).
45. The Second Respondent seeks that the Applicant pay his costs fixed in the amount of $7,467.00 [later corrected to $7,200.00], in accordance with Division 2 of Schedule 1 to the Federal Circuit Court Rules 2001.”
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Cassidy
Date: 5 March 2019
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