Cromer v Caswell

[2020] FCCA 1037

FEDERAL CIRCUIT COURT OF AUSTRALIA

CROMER v CASWELL & ANOR [2020] FCCA 1037

Catchwords:
CHILD SUPPORT – Application for judicial review of decision of Administrative Appeals Tribunal – departure application – parties agreed to orders regarding assessment of child support in 2012 – both parties have brought applications seeking to depart from those orders – AAT decision to depart from previous orders and raise the amount of child support to be paid by the applicant – applicant contends that the AAT committed jurisdictional error in failing to adequately consider an omitted annotation to the agreed 2012 order that prevented departure applications being brought – no jurisdictional error established – application dismissed.

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth), ss.3, 43AA, 44AAA

Child Support (Assessment) Act 1989 (Cth), ss.4, 25, 43, 98B, 98C, 98J, 98S,

117

Child Support (Registration & Collection) Act 1988 (Cth), ss.103T, 103W,

105

Family Law Act 1975 (Cth), s.117

Cases cited:

Applicant WAEE v Minister for Immigration & Multicultural & Indigenous

Affairs (2004) 75 ALD 630

Apthorpe v Repatriation Commission (1987) 13 ALD 656

Child Support Registrar & Crabbe and Anor [2014] FamCAFC 10

Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprise Pty

Ltd (1993) 43 FCR 280

Gyselman & Gyselman [1991] FamCA 93

Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244

LDME & JMA [2007] FMCAfam 712

Minister for Aboriginal AffairsvPeko- Wallsend Ltd (1986) 162 CLR 24

Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437

Minister for Immigration & Ethnic Affairs v Wu Shan Ling [1996] 185 CLR 259

Minister for Immigration & Multicultural Affairs v Al Miahi (2001) 65 ALD 141

Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR

597

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323

Tisdall v Webber (2013) 193 FCR 260

VAAD v Minister for Immigration & Multicultural Affairs & Indigenous Affairs

[2005] FCAFC 117

Applicant: MR CROMER

First Respondent: MS CASWELL

Second Respondent: CHILD SUPPORT REGISTRAR

File Number: ADG 184 of 2019

Judgment of: Judge Brown

Hearing date: 3 December 2019

Date of Last Submission: 3 December 2019

Delivered at: Adelaide

Delivered on: 6 May 2020

REPRESENTATION

Counsel for the Applicant: Mr d'Assumpcao

Solicitors for the Applicant: Mellor Olsson

Counsel for the First Respondent: Ms Wundke

Solicitors for the First Respondent: Legal Services Commission

Counsel for the Second Respondent: Mr Bishop

Solicitors for the Second Respondent: Mills Oakley

ORDERS

1. The amended notice of appeal filed 9 July 2019, as amended by counsel for the Applicant at the hearing of the appeal, be dismissed.

2. The Applicant pay costs calculated in the sum of $3,500.00 to each of the Respondents concerned.

IT IS NOTED that publication of this judgment under the pseudonym Cromer v Caswell & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 184 of 2019

MR CROMER

Applicant

And

MS CASWELL

First Respondent

CHILD SUPPORT REGISTRAR

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an appeal from decisions of the Administrative Appeals Tribunal,[1] in respect of a child support assessment and subsequent administrative reviews.  It concerns primarily two inter-related decisions of the Tribunal made on 19 December 2018 and 2 April 2019 respectively.  However, the relevant decision making history is complex. 

   [1]  Hereinafter referred to as either “the AAT” or “the Tribunal”

2. Mr Cromer is the father of two children, who are relevant to these proceedings.  They are R born in 2001 and H born in 2004. Ms Caswell is the mother of the two children, who live primarily with her.[2] 

   [2]  Obviously, these are pseudonyms.  The parties concerned have each been anonymised pursuant to the provisions of section 66 of the Administrative Appeals Act 1975 (Cth).  I will refer to Mr Cromer, who is the applicant in these proceedings as either “the applicant” or “the father”.  I will refer to Ms Caswell as either “the first respondent” or “the mother”.

3. The mother and father have been separated for many years.  As a consequence, the mother has an entitlement to apply for an administrative assessment of child support payable to her by the father, pursuant to the provisions of the Child Support (Assessment) Act 1989.[3] 

   [3]  Hereinafter referred to as “the Assessment Act”

4. In the first decision, which was characterised as being a decision on a preliminary matter, the AAT declined to amend the terms of an earlier decision of the Social Security Appeal Tribunal,[4] made on 19 October 2012 and directed that the subsequent review before it would proceed on the basis that the parties concerned were no longer bound by the terms of that decision. 

   [4]  Hereinafter referred to as “the SSAT”

5. In the second decision, the Tribunal set aside previous decisions relating to child support and, in substitution, fixed the father’s adjustable child income in an amount of $185,000.00 per annum, from 14 February 2017 until a terminating event occurred in respect of H. 

6. In general terms, a terminating event arises when a child, who is subject to a maintenance liability arising under the child support assessment scheme attains the age of 18 years. 

The nature of the proceedings before this court

1. The father is aggrieved at the outcome of the proceedings before the AAT and seeks, on appeal to this court, that the relevant decisions be set aside and returned to the AAT for re-hearing. 

2. Essentially, it is his position that the AAT had no proper factual or evidentiary basis on which to conclude that the first decision was beyond the power of the SSAT and thereafter it did not acquit the jurisdiction conferred upon to by failing to consider a central aspect of the applicant’s claim regarding the justice, equity and propriety of his application for departure.

3. Pursuant to the provisions of section 44AAA of the Administrative Appeals Tribunal Act 1975 (Cth)[5] a party to the proceedings before the AAT, which can be characterised as a child support first review,[6] may appeal to this court in respect of a decision made by the AAT, in a child support matter.  However, the only ground on which such an appeal can be based is “on a question of law”. 

   [5]  Hereinafter referred to as the “AAT Act”

   [6] Defined by section 3 of the AAT Act as meaning a proceeding that is an application in the social services and child support division of the AAT for first review as provided by Part VIIIA of the Child Support (Registration & Collection) Act 1988 (Cth)

4. The substantive decision in this case can be characterised as being such a child support first review, as such an appeal is open to this court in respect of errors or issues relating to questions surrounding the application of the law.

5. In Collector of Customs v Pressure Tanker Pty LtdandPazzolanic Enterprises Pty Ltd,[7] the Full Court of the Federal Court, in respect of the Administrative Appeals Tribunal, characterised the nature of an appeal, restricted to a question of law, from a fact finding and decision making tribunal as follows:

   “… the nature of the task of this court is clear.  It is to leave to the tribunal of fact decisions as to the facts and to interfere only when the identified error is one of law.”

   [7]  Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprise Pty Ltd [1993] 43 FCR 280

6. An administrative tribunal exceeds its powers and thus commits a jurisdictional error, which is correctable on appeal in respect of a question of law, if it:

   ·fails to construe properly the legislative provisions applicable;

   ·identifies the wrong issues or asks itself the wrong questions;

   ·ignores relevant material or relies on irrelevant material;

   ·fails to accord procedural fairness to the party before it or otherwise breaches principles of natural justice;

   ·makes an erroneous finding of such a magnitude that it goes to the very jurisdiction which it purports to exercise rendering its decision perverse or unreasonable or otherwise offending logic.[8]

   [8]  See Apthorpe v Repatriation Commission (1987) 13 ALD 656 at 666

7. The classical definition of jurisdictional error was provided by the High Court in Minister for Immigration & Multicultural Affairs v Yusuf.[9] It described an error, which leads to the vitiation of the jurisdiction of an administrative body, in the following terms:

   “What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”

   [9]  Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323

8. Accordingly, it is the function of this court to determine whether the decision of the AAT was within its legal powers.  That is what is meant by a question of law.  It is not the function of this court to examine the merits of that decision, if the decision was made within the parameters of its jurisdiction.  Essentially, it is not the function of this court to reappraise the evidence led before the AAT and re-determine the case, according to the conclusions it draws from the evidence available to the Tribunal.

9. As such, I should be cautious to approach the decision of the AAT with “an eye [which is] too keenly attuned to perception of error [or to read it] over-finely”. [10]Rather I should take a common sense approach to what the AAT was saying in its decision and the reasons provided by it as to why it said what it said.  The function of the AAT is not to produce reasons of “jurisprudential excellence”.[11]  It is to provide an informal and expedient level of independent review.

   [10]  See Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at 258

   [11]  See LDME & JMA [2007] FMCAfam 712

10. In Child Support Registrar & Crabbe and Anor[12] the Full Court of the Family Court provided a summary of principles (and applicable authorities), which is relevant to the review of administrative decisions in the child support area, particularly what matters can constitute an error of law and those which did not necessarily do so.  I have attempted to encapsulate them as follows:

    ·The question of whether there is evidence to support a finding of fact or an inference drawn from a finding of fact is a question of law;

    ·The making of a finding of fact or the drawing of an inference, in the absence of evidence, is an error of law;

    ·However, a wrong finding of fact is not necessarily an error of law, if it was based on evidence available to the decision maker;

    ·As a consequence, a finding of fact based on a faulty process of reasoning is not an error of law;[13]

    ·Judicial review is not to be over zealous in seeking to find inadequacy or reasoning and so inadvertently turn judicial review of an administrative decision maker into a reconsideration of the merits of the relevant decision;[14]

    ·An administrative tribunal is required to do no more than set out the findings which it did make on facts which it considered material to the decision made.[15]

    [12]  Child Support Registrar & Crabbe and Anor [2014] FamCAFC 10 at [54]

    [13]  See Minister for Immigration & Multicultural Affairs v Al Miahi (2001) 65 ALD 141 at [34]

    [14]  See Minister for Immigration & Ethnic Affairs v Wu Shan Ling [1996] 185 CLR 259 at [271]

    [15]  See Yusuf (supra)

Background

1. In 2012, the father and mother disagreed about the appropriate level of child support to be paid in respect of their children.  At that time, a person who was aggrieved by a child support determination made by the Registrar of the Child Support Agency[16] was entitled to appeal such a determination to the SSAT, pursuant to the provisions of the Child Support (Registration & Collection) Act 1988 (Cth).[17]  In 2012, the father was the applicant in such an appeal to the SSAT. 

   [16]  Hereinafter referred to as “the Child Support Registrar” or “the Registrar”

   [17]  Hereinafter referred to as “the Registration & Collection Act”

2. At the time of these proceedings, section 103W of the Registration & Collection Act enabled parents to agree terms in respect of child support review proceedings coming before the SSAT.  The section has now been repealed.  The section read as follows:

   “103W Powers of SSAT if parties reach agreement

   (1)    If, at any stage of a proceeding for a review (including at a pre-hearing conference under section 103):

   (a)    the parties (other than the Registrar) agree to the terms of a decision of the SSAT:

   (i)   in the proceeding; or

   (ii)  in relation to a part of the proceeding, or a matter arising out of the proceeding;

   that would be acceptable to the parties; and

   (b)    the terms of the agreement are:

   (i)   put in writing; and

   (ii)  signed by or on behalf of the parties; and

   (iii) lodged with the SSAT; and

   (c)     the SSAT is satisfied that a decision in those terms, or consistent with those terms, would be within the powers of the SSAT;

   the SSAT may, if it appears to it to be appropriate to do so, act in accordance with whichever of subsection (2) or (3) is relevant in the particular case.

   (2)    If the agreement reached is an agreement as to the terms of a decision of the SSAT in the proceeding, the SSAT may make a decision in accordance with those terms:

   (a)    without holding a hearing of the proceeding; or

   (b)    if a hearing has commenced-without completing the hearing.

   (3)    If the agreement relates to a part of the proceeding, or a matter arising out of the proceeding, the SSAT may in its decision in the proceeding give effect to the terms of the agreement without dealing at the hearing of the proceeding with the part or matter to which the agreement relates.

   (4)    The SSAT must not make a decision by consent under subsection (2) or (3) in relation to a departure from administrative assessment of child support in accordance with Part 6A of the Act unless it is satisfied that it is just and equitable and otherwise proper to do so, having regard to the matters set out in subsections 117(4) and (5).”

3. Accordingly, the section recognised the entitlement of parents to reach agreement, in respect of child support matters arising between them, which led to administrative review.  However, that entitlement was not unfettered.  Rather, it was subject to the approval of the Registrar, who was required to be satisfied of the appropriateness of such agreement, which had to be reduced to writing.

4. Significantly, in my view, the SSAT was prohibited from making a consent order, in review proceedings before it, unless it was satisfied that it was both just and equitable and otherwise proper to do so, having regard to the matters contained in subsections 117(4) & (5) of the Assessment Act. 

5. In this context, it is necessary to examine the administrative mechanisms, which applied to the calculation of child support and the review entitlements pertaining to parents, both those providing care for children and those liable to provide financial support. 

6. At the outset, it is important to note that the involvement of courts, such as this one, in the assessment of child support is closely circumscribed.  Fundamentally, the calculation of child support is an administrative matter and has been since 1 October 1989, when the child support regime inaugurated by the Assessment Act and the Registration & Collection Act came into being. 

7. These complex pieces of legislation are supported by other legislation, relating to social welfare payments, taxation matters, and the like.  In broad terms, the child support regime provides a mechanism for the financial support, to be provided by parents for their children, to be calculated administratively, through the application of legislatively prescribed formulae.

8. The relevant formulae are based on a number of elements, primarily related to the respective incomes of the parents themselves and the extent of care, which each provides to any child concerned. 

9. The principle object of the Assessment Act is to ensure that children receive a proper level of financial support from their parents.[18] This object is supported by the following particular objects set out in section 4(2) as follows:

   a)“that the level of financial support to be provided by parents for their children is determined according to their capacity to provide financial support and, in particular, that parents with a like capacity to provide financial support for their children should provide like amounts of financial support; and

   b)that the level of financial support to be provided by parents for their children should be determined in accordance with the costs of the children; and

   c)that persons who provide ongoing daily care for children should be able to have the level of financial support to be provided for the children readily determined without the need to resort to court proceedings; and

   d)that children share in changes in the standard of living of both their parents, whether or not they are living with both or either of them; and

   e)that Australia is in a position to give effect to its obligations under international agreements or arrangements relating to maintenance obligations arising from family relationship, parentage or marriage.”

   [18]  See Assessment Act at s. 4(1)

10. The objective that the level of child support, payable by parents for their children, should be readily determined is, at least in part, achieved by the application of the child support formula to the circumstances of the parents concerned. 

11. The formula itself is informed by regular statistical research, undertaken by agencies of the Australian Government, relating to the actual costs of providing for children, within the context of wages paid to average salary earners within Australia.

12. The intention of the legislature is that the formula should be transparent and provide fairly for the financial support of children, based on an objective assessment of their needs.  The formula is also intended to be responsive to the care provided, by separated parents, for their children.

13. Pursuant to section 25 of the Assessment Act, separated parents, of a child living in Australia, may apply to the Registrar of the Child Support Agency for an administrative assessment to be made in respect of the child concerned.

14. The basis which is used to calculate how much child support a parent should pay is a concept known as child support income, which is essentially based on that person’s adjustable taxable income, which is defined by section 43(1) of the Assessment Act.  In basic terms, it is the parent’s taxable income for the last relevant year of income in relation to the child support period.

15. In spite of the good intentions of the Australian Government, the application of the child support formula remains controversial, particularly amongst separated parents.  In addition, the potential for human circumstances to throw up situations not readily anticipated by the various child support formulae, created by the legislation, remains infinite.

16. As a consequence of the prospect of anomalies arising from the application of the formula, with a concomitant potential for the creation of injustice and unfairness, either to a liable parent or a carer parent, the legislative provisions contain mechanisms for review of administrative assessments of child support.  In the jargon of the legislation, these are known as departure applications. 

1. There are two main avenues, through which any person aggrieved by a child support assessment may apply to change or depart from such an assessment – firstly, an administrative approach and secondly, one based on an application to an appropriate court.

2. In the present matter, at some time in 2012, the father applied to the Registrar to depart from the administrative assessment of child support pertaining to him.  He did so pursuant to the provisions contained in Part 6A of the Assessment Act.

3. Section 98C both in 2012 and currently provides three basic criteria, which must be satisfied, before the Registrar might decide to depart from an administrative assessment of child support. It is convenient to characterise the process as involving three steps or considerations, each of which must be satisfied.

4. In the first instance, the Registrar had to be satisfied that one of a number of stipulated grounds for departure was satisfied.  Amongst other things, these grounds included the income, property and financial resources and the earning capacity of either of the parents concerned in the relevant assessment, on the basis that those matters were not properly reflected in the relevant Child Support Assessment [see section 117(2) of the Assessment Act].

5. Secondly, the Registrar must be satisfied that it is both just and equitable, as regards the child, the carer of the child and the parent liable to pay child support, to depart from the applicable administrative assessment and thirdly, it is otherwise proper to do so.

6. In addition, at the relevant time in 2012, there was a further right of review.  Pursuant to provisions contained in the Registration & Collection Act, a person could lodge an objection, with the Registrar of the Child Support Agency, to any decision arising from the departure process, created by Part 6A of the Assessment Act.

7. Thereafter, any person who still remained aggrieved, following this objection process, could appeal to the SSAT pursuant to the then provisions of section 110B of the Registration & Collection Act.  It is apparent that the applicant father did so in 2012. 

8. Pursuant to the now repealed section 88 of the Registration & Collection Act, the SSAT was directed to provide a mechanism of review, in respect of child support decisions, which was fair, just, economical, informal and quick. 

9. No doubt, it was in that context, that the legislature provided the mechanism contained in section 103W of the Registration & Collection Act to enable liable parents and those providing care for children to reach their own agreements in respect of child support matters to reflect their own idiosyncratic circumstances.

10. However, it is clear from the provisions of section 103W that that entitlement was not one which enabled parents to escape the overall ethos of the child support system, particularly in respect of the overall objectives of the scheme itself.

11. In particular, the Registrar was required to be satisfied, before making any consent order under the section, which represented a departure from any applicable administrative assessment of child support, that it was both just and equitable and otherwise proper to make such an order. 

12. In determining whether the consent order satisfied such considerations, the Registrar was required to have regard to subsections (4) & (5) of the Assessment Act, which re-state the essential framework of the administrative system relating to the assessment of child support. 

13. In particular, section 117(4) reads as follows:

    “In determining whether it would be just and equitable as regards the child, the carer entitled to child support and the liable parent to make a particular order under this Division, the court must have regard to:

    (a)the nature of the duty of a parent to maintain a child (as stated in section 3); and

    (b)    the proper needs of the child; and

    (c)the income, earning capacity, property and financial resources of the child; and

    (d)the income, property and financial resources of each parent who is a party to the proceeding; and

    (da)the earning capacity of each parent who is a party to the proceeding; and

    (e)the commitments of each parent who is a party to the proceeding that are necessary to enable the parent to support:

    (i)     himself or herself; or

    (ii)any other child or another person that the person has a duty to maintain; and

    (f)the direct and indirect costs incurred by the carer entitled to child support in providing care for the child; and

    (g)    any hardship that would be caused:

    (i)     to:

    (A)    the child; or

    (B)    the carer entitled to child support;

    by the making of, or the refusal to make, the order; and

    (ii)    to:

    (A)    the liable parent; or

    (B)    any other child or another person that the liable parent has a duty to support;

    by the making of, or the refusal to make, the order; and

    (iii)to any resident child of the parent (see subsection (10)) by the making of, or the refusal to make, the order.”

14. Accordingly, the SSAT’s then authority to make consent orders, pursuant to the now repealed section 103W, was closely curtailed by the legislature’s desire that issues relating to the financial support, to be provided by their parents, for their children, should be referrable to the administrative procedures contained within the Act.

15. No record is available as to what was said to the SSAT, in October 2012, prior to the making of the relevant decision.  What is clear is that the parents themselves did reach an agreement and it was put into writing, after having been signed by each of them and lodged with the SSAT. 

16. I have been provided with a copy of the agreement in question, which was hand written and subject to a brief annotation, which subsequently has become highly germane to the current proceedings.  The annotation appears in the margin of the handwritten document and where it is intended to be read in the document is marked by an asterisk.  The annotation is in the square brackets hereunder:

    “[*(always excluding any income determination by departure application by the Child Support Registrar or the said applicant wife)]”

    In the subsequent completed order of the SSAT, this annotation is not included.  Where it should have appeared, by reference to the handwritten document, in the order which subsequently issued is marked with an asterisk, as above.

17. The actual decision of the SSAT is brief.  It reads as follows: 

    “[The applicant father] and [the respondent mother] having reached agreement and having signed terms and the Tribunal being satisfied that a decision consistent with those terms is within the powers of the Tribunal and would be just and equitable and otherwise proper having regard to the matters set out in subsections 117(4) and 117(5) of the Child Support (Assessment) Act 1989, pursuant to section 103W of the Child Support (Registration & Collection) Act 1988 the Tribunal decided to vary the decision under review, being a decision of an objections officer of the Child Support Agency made on 12 August 2011, to the extent that:

    1.  For the period 1 March 2011 to 30 September 2012 [the applicant father's] adjusted taxable income is set at $80,000 per annum;

    2.  From 1 October 2012 the adjusted taxable income of [the applicant father] will be the greater of:

    (a)    The sum of $85,000 per annum, such sum to be varied annually by the movement in the Consumer Price Index over the previous 12 months, the first such variation to occur on 1 July 2013; or

    (b) As otherwise determined by the Child Support Registrar (pursuant to the Child Support (Assessment) Act 1989)* where [the applicant father's] adjusted taxable income exceeds the sum determined pursuant to paragraph 2(a);

    to the intent that the adjusted taxable income of [the applicant father] shall, in any child support period, not be less than the sum determined pursuant to paragraph 2(a).

    3.  From 1 October 2012 any child support assessment by departure determination made by the Child Support Registrar in respect of the respondent mother's adjusted taxable income is to be included in the child support assessment for the relevant child support period.

    4.  Arrears of child support payable by the [applicant father] shall be paid by [the applicant father] from his share of the proceeds from the sale of the former matrimonial home pursuant to paragraph 1(I) of orders made in the Federal Magistrates Court of Australia in Proceedings No (P)ADC3722 of 2010 on 14 June 2012 such arrears to include those (if any) incurred to the date of settlement of the sale of the former matrimonial home.

    5.  [The applicant father] and [the respondent mother] intend that these arrangements shall apply until the youngest child ceases to be an eligible child for the purposes of the Child Support (Assessment) Act 1989.

    6.  [The applicant father] and [the respondent mother] do not intend to bring any further application for departure from any child support assessment save and except in circumstances where a party or family member experiences a serious failure in health or insolvency or potential insolvency or cessation of [the applicant father's] accountancy practice.”

18. In this context, it is to be noted that the decision does not provide any reasoning or evidence as to why the departure in question reflects the earning capacity and/or financial resources of either of the parents concerned or any of the other matters specifically delineated in section 117(4) of the Act.

19. In addition, when the order was actually formulated by the SSAT, it failed to include the annotation referred to above.  When the order issued, it appears to be the case that neither the parties concerned nor the Registrar noted this omission.  Thereafter, this order provided a central component of the assessment of child support to be paid by the father as it stipulated his income for child support purposes. 

20. In addition, although the order stipulated that neither parent intended to bring any further application for departure, other than in circumstances of extreme financial emergency, this did not prove to be the case. 

The current round of proceedings

1. On 28 November 2016, the father applied to the Registrar for an administrative departure from the relevant child support assessment.  As indicated above, for the applicant to change an administrative assessment such a person must demonstrate that one of a number of stipulated special circumstances has been satisfied. 

2. In the current matter, the father indicated that he wished to rely on the ground relating to the income as reported by the mother.  It being his case that her child support income had been based on a sum of $42,000.00 when in reality her income was $60,000.00 per annum. 

3. In response to this application, the wife cross-applied, on the same ground, asserting that the father’s income was greater than $91,925.00,[19] as he had access to the rental income generated by a number of real properties, as well as the income generated by his accountancy practice.

   [19]  This being the income as varied by CPI increases reflected in the October 2012 consent order.

4. On 5 April 2017, a delegate of the Registrar dismissed the father’s application for departure but upheld the mother’s application.  The delegate was satisfied that the evidence available indicated that the father’s total income and financial resources were significantly higher than the adjusted taxable income as set by the SSAT pursuant to the consent order of October 2012.

5. In lieu thereof, the delegate fixed the father’s adjustable taxable income at an amount of $200,000.00 for the period from 14 February 2017 to 1 May 2019.  As was his entitlement, the father objected to this decision, which was referred to an objections officer, within the Agency.  On 28 October 2017, the objections officer disallowed the objection.  This set the context for the current proceedings. 

6. Since 2012, the external appeals regime, in respect of child support matters, has been significantly modified.  Pursuant to Part VIIA of the Registration & Collection Act, a person aggrieved by a decision on reconsideration, made by the Registrar, may seek a review of the decision in the AAT.  This is categorised as an AAT First Review pursuant to the applicable legislation. 

7. On 21 November 2017, the father lodged an application for such a first review to the Social Services & Child Support Division of the AAT.  As a preliminary issue, the father argued that the October 2012 consent order should be amended, by the AAT, so that it included the portion of the hand written minute, which had been omitted from the formalised order of the SSAT.

8. The father contended that the effect of this would be that the 2012 order, when so amended, would preclude the mother and/or the Registrar from bringing a departure application based on any child support income for him other than one of $85,000.00 plus CPI increases from 1 July 2013 onwards because this was the level of income set by the SSAT in that order.  

9. In these circumstances, the determination of April 2017, which had fixed the father’s child support income in an amount of $200,000.00, was inconsistent with the agreement between the father and mother, as memorialised in the earlier order of the SSAT, and therefore it was beyond the Registrar’s powers to substitute any other level of income.  As a consequence, the AAT should set aside the determination of April 2017.

10. The father submitted that the AAT had the authority to amend the SSAT order because the omission of the portion of the handwritten consent minute was an obvious slip or error pursuant to the provisions contained in section 43AA of the Administrative Appeals Tribunal Act 1975.

11. The mother and the Registrar submitted that there was no power, available to the SSAT, pursuant to any provision arising under the Assessment Act, which would enable the SSAT to make a determination having the effect of precluding the Registrar from initiating or accepting a subsequent departure application in the future or making any determination setting a liable parent’s adjusted taxable income.

12. In particular, emphasis was placed on section 98J(1) of the Assessment Act which provides as follows:

    “(1)  A person who has made an application for a determination under this Part in respect of an administrative assessment of child support is not, for that reason, precluded from subsequently making another application in respect of that assessment if, because of circumstances existing at the time when the subsequent application is made, there are grounds for departing from the administrative assessment.”

13. In addition, pursuant to section 98S of the Assessment Act, which also falls within Part 6A of the Act, which details the provisions for administrative departure from child support assessments, the Registrar is specifically empowered to make a determination varying a parent’s child support income.

14. In this context and in the context of the overall objectives and purposes of the applicable legislation, the Registrar contended that the SSAT had never had the power to include the additional phrase in its October 2012 order because of its effect of precluding a subsequent departure application.

15. In addition, even if the SSAT order had included the phrase in question, it could not prevent the AAT from making an appropriate departure order, if the applicable statutory criteria for the making of such an order had been satisfied.  In effect, it was submitted the SSAT had no power to bind the hand of any subsequent decision maker in respect of a departure application or preclude the making of such an application.

16. On 19 December 2018, under the heading Decision on Preliminary Matter the AAT held as follows:

    “The applicant’s request for orders or directions amending the terms of the decision of the SSAT of 19 October 2012 and directing that the review will proceed on the basis that the parties are bound by the terms of that decision is refused.”

17. In reaching this conclusion, the AAT determined as follows:

    ·It was not satisfied that there was an obvious error in the decision and order of October 2012;

    ·The request to amend the October 2012 order was beyond its power;

    ·The Registrar did not rely on any ambiguity present in the text of the order to make the decision currently under review;

    ·Section 98J of the Assessment Act empowered both the Registrar and the AAT to make a departure determination regardless of the content of any earlier decision made by the SSAT.[20]

    [20]  See AAT Reasons for Decision dated 19 December 2018 at [14]

18. Following this preliminary determination, the AAT went on to consider the father’s review application in respect of the decision to fix his child support income at an amount of $200,000.00 for the period between 14 February 2017 and 1 May 2019.  It published its decision, in this regard, on 2 April 2019 and held as follows:

    “The Tribunal sets aside the decision under review and, in substitution, decides that the objection is allowed so as to vary [the father’s] adjusted taxable income to $185,000.00 per annum from 14 February 2017 until a terminating event in respect of the youngest child of the assessment.”

19. In its decision, the AAT conducted an examination of the father’s financial circumstances, which included income, property and financial resources which were held and distributed through the mechanism of a family trust and trustee company controlled by the father.  The AAT characterised the activities of this trust and another trust, which controlled a number of real properties as being not straight forward.

20. Following this analysis and concurrent quantification of the financial resources available to the father, the AAT concluded that his child support income so calculated would result in a three-fold increase in the assessment of child support when compared to that based on the 2012 SSAT order.  In this context, the AAT concluded as follows:

    “I have considered whether an assessment based on terms agreed by the parents in 2012 remains just and equitable notwithstanding the findings I have reached in quantifying [the father’s] financial resources in 2016, because it was so agreed. Having regard to the objects of the child support scheme, I am of the view that the discrepancy between the annual rate of child support calculated by reference to the 2012 SSAT decision and my findings as to [the father’s] financial resources is so great that the administrative assessment based on the 2012 SSAT decision is unjust and inequitable regardless of the fact that it was arrived at as a result of the parents' agreement. I do not know what financial information the SSAT considered in deciding that the arrangement was just, equitable and otherwise proper at the time that decision was made, but I am satisfied that the terms of that agreement are unjust and inequitable having regard to [the father’s] financial resources at the time of the subsequent change of assessment application.”[21]

    [21]  See AAT Reasons for Decision dated 2 April 2019 at [59]

21. It was in the context of this finding that the AAT fixed the father’s child support income at $185,000.00 on the basis that it was satisfied that grounds for departure had been established pursuant to the three step procedure provided by section 117(4) of the Assessment Act.

22. The father commenced the current proceedings, in this court, on 23 April 2019.  He prepared his own notice of appeal, which was superseded by an amended notice prepared by his current solicitor on 9 July 2019.

23. The father sought that the decision on the preliminary matter, made on 19 December 2018, be set aside and further that pursuant to section 43AA(4) of the Administrative Appeals Tribunal Act 1975 the 19 October 2012 order of the SSAT be amended to include the phrase contained in the parties’ original hand written agreement. 

24. In this context, the father further sought that the subsequent decision of 2 April 2018 be set aside and returned for rehearing by the AAT presumably on the basis that the 2012 SSAT order had the consequence of preventing any subsequent departure applications.

1. This application was supported by numerous grounds of appeal, which is unnecessary to detail, given the approach adopted by the father at the hearing of his appeal on 3 December 2019.

The grounds of appeal

1. At the hearing before me, counsel for the father, Mr d’Assumpcao, indicated that his client now sought to rely on two grounds of appeal as follows:

   ·In reaching the ultimate decision, the AAT relied on an earlier finding of fact which was not based on probative evidence;

   ·The AAT failed to have regard to relevant material in considering whether it would be just and equitable as regards the child, the liable parent, and the carer entitled to child support and otherwise proper for purposes of section 98C(2)(b)(ii)(A) & (B) of the Child Support (Assessment) Act 1989.

The applicant’s submissions

1. In respect of the first ground of appeal, the thrust of Mr d’Assumpcao’s argument rests on his assertion that the AAT has fallen into error by engaging in conjecture regarding the absence of the handwritten annotation from the completed October 2012 order of the SSAT.

2. The annotation is central to the father’s case.  From his perspective it goes to his state of mind and that of the mother, as at October 2012, namely that each had mutually agreed with the other that neither would initiate any further departure application. 

3. It is clear from the AAT’s reasons, that it was aware of what was the father’s position in regards to the annotation, when it summarised his case in the following terms:

   “[The father] states in his affidavit that the handwritten memorandum provided to the SSAT was intended to finalise for all time the ability of [the mother] to make further applications to the Department seeking review of child support obligations based on income levels.  The text of the additional phrase would be to purport to specifically exclude any additional amount of income assessed under a departure determination.”[22]

   [22]  See AAT Reasons for Decision dated 19 December 2018 at [20]

4. As such, the AAT was required to consider the effect of this annotation to the 2012 order, when it came to consider the overall justice and equity of any possible departure order and whether it was otherwise proper to make such a departure.

5. As it did not do so, as I understand the applicant’s submissions, the AAT failed to acquit the jurisdiction conferred upon it and, in particular, failed to follow the statutorily mandated three stepped process entailed in each departure application.

6. In lieu of this process, it is contended that the AAT made unfounded assumptions as to why the SSAT did not include the annotation in its completed order, which has no evidentiary foundation. 

7. In so doing, it is Mr d’Assumpcao’s submission that the AAT fell into error by engaging in conjecture as to possible reasons why the completed order was as it was, which included that the SSAT, of its own initiative had concluded it had no power to include in its order the annotation in question and had omitted it without reference to either of the parties concerned. 

8. This forms the basis for his submission that the AAT reached a central conclusion, on which its decision was based, without any evidentiary basis and thus fell into legal error.

9. The basis for this submission comes from various passages in the preliminary issues hearing, of the AAT, held in December 2018 and in particular the following, which appear under the heading The alleged error in the decision of the SSAT:

   “I accept that the text in the SSAT published order is ambiguous on the question of whether a variation to adjusted taxable income made under section 98S of the Assessment Act would constitute ‘an amount otherwise determined by Registrar pursuant to the Child Support (Assessment) Act 1989’, and I understand that without the additional text expressly removing that ambiguity, the purpose [the applicant] states was intended by the parties in entering into the proposed terms might not be fulfilled.

   As to whether the omission is the product of error however, 1 take into account my conclusions set out below regarding the omitted term being beyond power.  Although I cannot know for sure in the absence of comprehensive reasons from the SSAT, it is possible that the term was omitted because the SSAT recognised it was beyond power, and therefore not omitted in error.”[23]

   [23]  Ibid at [21] – [22]

10. The relevant conclusions, referred to in the above extract, subsequently appear in the decision under the heading Correction under section 43AA of the Administrative Appeals Tribunal Act. Mr d’Assumpcao places significant emphasis on the AAT’s finding that it had no power to amend the October 2012 order, pursuant to section 43AA of the Administrative Appeals Tribunal Act, as neither it nor the SSAT would have had the authority to make the order in the first place.

11. In this context, Mr d’Assumpcao submits that a reading of the AAT’s decision unequivocally indicates that it again fell into an unacceptable form of conjecture regarding why the annotation was not included in the original perfected form of the order, when it said as follows:

    “It would be beyond power for me to purport to amend, by way of a slip rule, the decision of the SSAT to introduce such a provision, even if I had authority to make a slip rule amendment or retained some form of jurisdiction over the matter that was before the SSAT.  As mentioned above, perhaps this was why the provision was not included in the orders made by the SSAT.”[24]

    [24]  Ibid at [36]

12. It is these two passages which form the basis of Mr d’Assumpcao’s submission that the SSAT’s determination that it had no jurisdiction to amend the earlier order was based on an unwarranted assumption, namely that when some unspecified person, in the SSAT had issued the perfected order, he or she had deleted the notation because he/she had concluded that the SSAT had no jurisdiction to make such an order.  It is Mr d’Assumpcao’s submission that the AAT could not possibly have known why the extract was omitted and it was improper of it to have conjectured about it.

13. In this context, Mr d’Assumpcao submits that it was incorrect for the AAT to proceed on the basis that the issue regarding the amendment of the 2012 order could be determined in isolation from the father’s substantive application regarding whether there should have been an administrative departure from his previously set level of child support income.  In his submission the two are irrevocably linked.

14. In addition, Mr d’Assumpcao submits that the unwarranted assumptions about why the relevant annotation was omitted is not supported by other aspects of the perfected order, which was actually made by the SSAT, namely that in order 5 of the orders of 19 October 2012, it was memorialised as follows:

    “[The parties] intend that these arrangements shall apply until the youngest child ceases to be an eligible child for the purposes of the Child Support (Assessment) Act 1989.”

15. In all these circumstances, it is Mr d’Assumpcao’s submission that the evidence available to the AAT in fact points in the direction of a conclusion that the relevant annotation was omitted from the correct order by mistake, given the other terms of the consent order point to the fact that it was the father and mother themselves, who had reached agreement about the terms of any future child support assessments and other aspects of the consent order indicate unequivocally their intention not to bring further departure applications.  They did this via the mechanism of the handwritten minute.

16. The normal course of events, including under the then section 103W, is that a court or decision making body receives a proposed consent order and, if it has concerns about such an order, including jurisdictional ones, it raises those concerns with the parties concerned so that any appropriate amendments can be made openly or if the basis for the earlier consensus is undermined, the case can be re-activated.

17. As the record is clear that none of these events occurred the only logical conclusion, which should have been made by the AAT was that the annotation was omitted in error not because of any jurisdictional concerns.  In this context, Mr d’Assumpcao makes the following submission:

    “The next step was for the SSAT to make the orders.  There was nothing controversial about the process.  Yet the AAT erroneously imported a state of mind, thereby eviscerating the terms of agreement of its content, when there was no justification on the evidence to do so.”[25]

    [25]  See Applicant’s written submissions at page 8 [51]

18. In support of this submission, Mr d’Assumpcao relies on Tisdall v Webber[26] in which the Full Court indicated the decisive test in respect of whether there was an error in logic or reasoning was the absence of any foundation for the conclusion reached.  In this case, Mr d’Assumpcao submits that it is axiomatic that there was no basis whatsoever for the AAT to conclude that the SSAT had rejected the relevant portion of the handwritten minute on the basis of any consideration of jurisdiction.

    [26]  Tisdall v Webber (2013) 193 FCR 260 at 296 [126]

19. As such, its inferential processes are compromised and any subsequent conclusions on which that process rests are equally flawed.  In this context, Mr d’Assumpcao relies on the following passage from Tisdall:

    “It is important to bear in mind also that the inferential process is not one where speculation, guesswork or mere assumption is accommodated.  So far as the work of courts is concerned, where the application of a judicial method is expected, the process of drawing an inference from available facts is not to be equated with conjecture, surmise or guesswork.  The arbitrary selection of one possibility over others from an available number of possibilities by such a method is not merely lacking in logic; it fails to conform to the necessity that inferences be drawn as matters of legitimate deduction, based on probative values.”[27]

    [27] Ibid at 297 [128]

20. In all these circumstances, it is submitted that the AAT has fallen into a clear error of fact, which has infected the manner in which it conducted the remainder of its review task arising under section 98B of the Assessment Act.  This is the subtlety of the applicant’s argument and leads to the second ground of review.

21. It is submitted that although strictly speaking the AAT did not have to consider the issue of why the annotation had been omitted, as it was not relevant to the jurisdictional issue, the fact of the completed order, on which the applicant father relied in his departure application, was relevant to its jurisdictional task arising under section 98C(1)(b), particularly whether it was both just and equitable and otherwise proper to make any departure application.

22. In this context, it is submitted that it is conceivably possible that, if the AAT had accepted that the parties had themselves reached a consensus that they would, in effect, oust the Registrar’s jurisdiction to make a subsequent departure application by fixing the upper limit of the father’s child support income, these factors were relevant to the assessment of the justice and equity and propriety of any subsequent departure application.

23. Essentially, in order to acquit its jurisdiction legally, the AAT was required to consider all the evidence available before it and not arbitrarily dismiss an essential component of it through the determination of the preliminary issue.  In so doing, it did not conduct the evaluative task of all the evidence, which was required of it.

24. This line of argument is summarised in the following passage from the father’s written submissions:

    “Metaphorically speaking, what happened was the AAT placed the SSAT decision, and the terms of agreement, into a compartment labelled ‘irrelevant material’.  It was not entitled to do so.  That approach was impermissible and plainly results in a legal error.  Had it considered the document, and the Applicant’s submissions bearing upon it, it is possible that consideration of these matters could have affected the outcome.”[28]

    [28]  See Applicant’s written submissions at page 9 [54]

25. This is the gravamen of the applicant’s complaint.  It is his position that he and the mother reached a concluded agreement that changes in his income would not result in a change in assessment other than if he became seriously ill or insolvent such that he had to cease his accountancy practice.[29]  By necessary implications, each such factor would have decreased rather than increased his income.

    [29]  See SSAT order of 17 October 2012 at order 6

26. This was relevant to whether it was both just and equitable and proper to make a subsequent departure which was based on an increase in his income.  It is not said that this factor did not achieve proper or appropriate weight.  Rather the submission is that in the April 2019 decision it has not received any consideration at all and this is an obvious legal error.

27. Mr d’Assumpcao submits that the fact that the AAT concluded that it was not bound by the 19 October 2012 order did not absolve it of the requirement to consider the possible legal ramifications of that order vis-à-vis any subsequent departure application. 

28. In this context, he points to the fact that, in the 2 April 2019 determination, there is only one reference to the October 2012 agreement, which is as follows:

    “[The applicant] asked that I take into account the nature of the agreement he believed that he had reached with [the mother] that is incorporated into the 2012 SSAT decision.”[30]

    [30]  See AAT decision dated 2 April 2019 at page 10 [59]

29. Mr d’Assumpcao characterises this as a mischaracterisation of the applicant’s case, which is unduly narrow.  From his perspective, he wanted the handwritten document of October 2012 taken into account, by the AAT, regardless of any attribution by it, to him, of his state of belief and whether it was or was not fallacious.  That it did not do so amounts to a species of legal unfairness.

30. As an extension of this submission, Mr d’Assumpcao submits that the AAT has fallen into the type of procedural unfairness in the second sense envisaged by the Full Court of the Federal Court in Minister for Immigration & Border Protection v Singh namely the outcome of the proceedings is coloured by some species of caprice or arbitrariness, which renders the decision legally unreasonable, although the applicable jurisdictional questions have been addressed by the decision-maker in question.  This area has been characterised as being outcome focussed.[31]

    [31]  Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44]

31. In Singh the Full Court indicated that the resolution of any controversy, regarding legal unreasonableness, would inevitably be fact dependent.  In this context, it is Mr d’Assumpcao’s submission that the inclusion of the entire handwritten minute may have conceivably influenced the outcome of the concluded AAT application and because this document was not considered, in its entirety, there has been legal unfairness accorded to his client.

32. In support of his submission that the AAT failed to consider, in any way whatsoever, the handwritten minute, Mr d’Assumpcao relies on another migration decision, VAAD v Minister for Immigration & Multicultural Affairs & Indigenous Affairs[32] where it was said as follows:

    “…whether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document.  In this case the Tribunal failed to consider a document, the UNP Letter, which was not only particular to the first appellant but arguably of critical importance to the claims of all the appellants.  This is not a situation of the kind to which Mason J referred in Minister for Aboriginal AffairsvPeko- Wallsend Ltd[33]…where the factor was so ‘insignificant that failure to take it into account could not have materially affected the decision’.  The failure to do so led the Tribunal into error and that error had an adverse effect on the Tribunal’s assessment of the first appellant’s credibility.”

    [32]  VAAD v Minister for Immigration & Multicultural Affairs & Indigenous Affairs [2005] FCAFC 117 at [77]

33. In this case, Mr d’Assumpcao argues that the handwritten minute was the central aspect of the applicant’s case before the AAT and so the failure of the AAT, in its April 2018 decision, to allude to it directly was an error of critical importance to his case, which renders the decision legally unreasonable, regardless of any potential analysis of the jurisdictional implications of the now repealed section 103W.

The first respondent’s submissions

1. The mother substantially adopts the submissions made by the Registrar. She relies on a strict interpretation of section 103W, which she contends limited the power of the SSAT to make any consent order presented to it only if the terms of such an order were within the powers of the SSAT.

2. The mother’s counsel, Ms Smith submits that, pursuant to the legislation applicable in October of 2012, the SSAT did not have the power to make an order which had the effect of ousting the jurisdiction of the Registrar to make a subsequent departure application if, at a later stage, grounds arise to support such a departure order being made. This is implicit from section 98J of the Assessment Act, which explicitly authorises subsequent applications.

3. In addition she relies on the then existing provisions of section 103T of the Collection Act which conferred the same powers on the SSAT as were held by the Registrar, with the same limitations thereon.  In particular, section 103T(2) read as follows:

   “(2) To avoid doubt, any limitation on the exercise of a power or discretion by the Registrar also limits the exercise of that power or discretion by the SSAT under this Part.”

4. The mother is legally aided in the proceedings.  She seeks payment of her legal aid costs fixed in an amount of $7,981.10.

The Registrar’s submissions

1. Counsel for the Registrar, Ms Wong submits that the contents of the October 2012 SSAT decision are largely irrelevant to the jurisdictional task which fell to the AAT to discharge.  The issue for the AAT was whether there existed special circumstances, as at 29 November 2016, to depart from that decision in accordance with the three step path delineated in section 117(2) of the Assessment Act.

2. As such, it did not have to consider the legality or otherwise of the October 2012 order, merely whether there existed grounds to depart from it.  In the submission of Ms Wong, the AAT correctly specified its jurisdictional task and then legally acquitted it. 

3. In this context, the Registrar (as does the mother) points to the fact that it was the applicant, in fact, who initiated the departure process, which the Registrar was then required to deal with and thereafter so was the AAT, which stood in the shoes of the Registrar.

4. As I understand the submission, the only relevance of the 2012 decision was that it created a child support assessment, which fixed a rate of child support payable by the father to the mother.  It was not necessary for the AAT to have any other regard for the order other than it was this from which administrative departure was sought.

5. Given that a departure application had been made, as at 29 November 2016, which was the date on which the father applied to depart from the 2012 order of the SSAT, the Registrar and subsequently the AAT were jurisdictionally obliged to consider whether grounds existed to depart from that order.

6. In these circumstances, it is Ms Wong’s submission that the AAT correctly delineated its jurisdictional task in the relevant portions of the 2 April 2019 decision as follows:

   “The question for me now therefore is whether the application is grounded by circumstances existing at the time the (subsequent) application was made.  That point in time was 29 November 2016 when [the applicant] applied for the change of assessment that has led to these proceedings.  I must decide whether a ground is established at 29 November 2016, by reference to the administrative assessment then in force.

   If the ground is established by reference to the time the subsequent application was made I will then have the usual unfettered obligation and discretion to take into account all the matters provided for in subsection 117(2) of the Assessment Act, including the discretion to apply any new determinations retrospectively up to 18 months prior to the date of the subsequent application and indefinitely into the future. Before I can consider this however, I must first be satisfied that a ground is established.

   The remaining issues for me to determine in this review are therefore:

   Whether one or more of the grounds for departure referred to in subsection 117(2) of the Assessment Act exists (by reference to the  time of the subsequent application for a change of assessment); and, if so

   Whether it would be just and equitable as regards the child, the liable parent and the carer entitled to child support, and otherwise proper, to make a particular determination to depart from the administrative assessment of child support.”[34]

   [34]  See AAT decision dated 2 April 2019 at page 2 [10] – [12]

1. In all these circumstances, it is Ms Wong’s submission that “what the SSAT did or didn’t do in relation to the asterisked handwritten notes is therefore completely irrelevant”.  By necessary implication, the only relevance of the October 2012 order was that it created a child support assessment.

2. In respect of the second ground of appeal, Ms Wong contends that a fair reading of the 2 April 2019 decision does indicate that the AAT considered the justice and equity implications of the fact that the father and mother had reached a consensual decision in respect of future child support arrangements for R and H.

3. In this context, the AAT concluded that it would be unjust to allow the 2012 assessment to stand given its factual findings in respect of the disparity in the financial resources of the parents concerned.  In addition, it is submitted that it is apparent that the AAT was aware that the parties had earlier reached a consensual agreement regarding the mechanism by which child support would be calculated but concluded that the gross discrepancy in income rendered such an agreement inequitable.

4. Accordingly, the Registrar contends that the 2012 consent order did receive a degree of consideration which was appropriate given the circumstances of the case.  In support of this submission Ms Wong relies on what was said by the Full Court of the Family Court in Gyselman & Gyselman[35] where it was pointed out that it was not necessary, in a departure application, for a decision maker to go through every paragraph of the applicable legislation with a level of slavish detail. 

   [35]  Gyselman & Gyselman [1991] FamCA 93 at [125]

5. Rather, it was submitted that all that was required was for the AAT to turn its mind to whether it was both just and equitable and otherwise proper to depart from the 2012 assessment, which it did.

6. It is the Registrar’s position that, in the event it is successful in its application, costs should follow the event, which it assesses pursuant to the applicable scale in an amount of $7,200.00

Conclusions

1. The father contends that the court’s focus should be on the first determination of December 2018, which he maintains is legally erroneous, as the purported findings about why the order was not reproduced in full to correspond with the handwritten minute are based on unacceptable speculation.  In these circumstances, it is submitted that the AAT could not go on to conclude the appeal, in a legally reasonable manner, without considering the completed document because it might conceivably have influenced the outcome of the subsequent proceedings.

2. On the other hand, the Registrar contends that the two decisions are distinct and are not inter-dependent on one another.  The fact that the AAT declined to amend the earlier order, to the form advocated by the father, did not subsequently act as an impediment to it dealing with the departure applications advanced by each of the father and the mother.  

3. The 2012 order was germane only because it created an administrative assessment of child support, which the parties themselves and indeed the Registrar were entitled to apply to depart from, if special circumstances were established.

4. In my view, the Registrar’s analysis is the correct one.  I can understand why the father would be aggrieved that what he asserts was the concluded agreement between him and the mother did not appear in the perfected order of October 2012, with its purported intention of preventing the Registrar and the mother from initiating any departure application.

5. That the SSAT did not have the jurisdiction to make such an order appears to me to be incontrovertible, when the provisions of the then section 103W of the Collection Act are considered. The SSAT was specifically prevented from making any order unless it was just and equitable and otherwise proper to do so by reference to the matters contained in section 117(4) of the Assessment Act. 

6. The matters contained in that section include the overall objects of the Child Support scheme itself, which emphasise the duties of parents to support their children, by reference to the income, financial resources and property of each of them, as it changes, from time to time.  This is one of the essential attributes of the scheme – it is intended to be reflective of changes in the financial circumstances of parents and adaptable to such changes in a fair and equitable way.

7. These objectives are not compatible with an order the effect of which is to prevent the Registrar or a parent from being able to rely on any process of departure in order to alleviate unfairness arising in respect of the apportionment of maintenance obligations between parents in circumstances in which there is a discrepancy in the financial resources of those parents.

8. In my view, the conjecture, on the AAT’s behalf about why the annotation was omitted and its legal conclusion regarding its lack of jurisdiction to amend the earlier order are disconnected.  The SSAT either had jurisdiction to make the order and so oust the jurisdiction of the Registrar to make any subsequent departure order or it did not. 

9. For the reasons provided above, I am satisfied that an overall analysis of Part 6A of the Act indicates that the Registrar and the SSAT, which stood in its shoes, did not have the authority to oust the jurisdiction of the Registrar to bring any subsequent departure application or otherwise fix a parent’s child support income indefinitely.  In my view, such an outcome would be anathema to the objects and principles underpinning the child support scheme

10. The AAT considered the extent of the exercise of the powers then conferred on the SSAT, pursuant to the now repealed provisions of section 103W of the Registration & Collection Act, were restricted to any proposed decision...within the powers of the SSAT.

11. In this context, the AAT reached the following legal conclusion, which I regard to be central to the disposition of the matter:

    “Neither does the AAT now, nor did the SSAT then, hold unlimited jurisdiction or power to make decisions about all aspects of the child support scheme, The Tribunal’s role was restricted to the review of specific decisions that had been the subject of an objection decision.

    In this context, therefore, I accept the Registrar’s submission that the power of the SSAT within which it could make a decision under section 103W of the Registration & Collection Act was restricted to the range of determinations that may be made under Part 6A of the Assessment Act, found in section 98S of the Assessment Act.

    None of these determinations envisage or empower the Tribunal, in reviewing an objection to a decision made under Part 6A, to make a determination to oust provisions of the child support law or bind or preclude the Registrar as to the manner or capacity to exercise powers under the Assessment Act at a future date.”[36]

    [36]  See AAT decision dated 19 December 2018 at page 5 [32] – [34]

12. This finding is not dependent on the AAT’s musings as to why the concluded order was at it was.  Its speculations, in this regard, are irrelevant to whether the SSAT did or did not have the authority to make the order, which was reflected in the handwritten minute.  In my view, the AAT’s analysis that, both in 2012 and at the time of the decision, the SSAT (and indeed itself) had no jurisdiction to oust the jurisdiction of the Registrar, in respect of prohibiting a departure by the Registrar, is unimpeachable.

13. The criticisms mounted by the father in respect of the lack evidence to support its speculation in this regard are immaterial to the issue of validity of the order overall.  The issue of why the SSAT did not perfect the order in conformity with the handwritten minute is not dispositive of the issue of whether the SSAT had jurisdictional authority to make the order in question. [37]  As such, any criticisms in respect of the lack or otherwise of evidence available to determine why the order was as it was is irrelevant to a determination of whether the order was within jurisdiction.

    [37]  Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 75 ALD 630 at 641 [47]

14. In Minister for Immigration & Multicultural Affairs v Bhardwaj[38] the High Court (Gaudron and Gummow JJ) said as follows:

    “… a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all.  Once that is accepted, it follows that, if the duty of the decision-maker is to make a decision with respect to a person's rights but, because of jurisdictional error, he or she proceeds to make what is, in law, no decision at all, then, in law, the duty to make a decision remains unperformed.  Thus, not only is there no legal impediment under the general law to a decision-maker making such a decision but, as a matter of strict legal principle, he or she is required to do so.”

    [38]  Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 616 [53]

15. In this context, it seems to me the aspects of the October 2012 order, which potentially had the effect of ousting the Registrar’s jurisdiction are to be regards as void ab initio or in the terminology of the High Court no decision at all.  As such, in my view, the speculations of the AAT, as peripherally expressed in the December 2018 decision as to why the SSAT posted the order as it did, had no relevance to its view that the order itself lacked jurisdictional integrity and so cannot found any procedural or legal unfairness to the applicant.

16. Thereafter, I accept the Registrar’s analysis that the AAT’s jurisdictional obligation was to determine whether a ground for departure from the 2012 order was established and whether it would be both just and equitable, for the parents and children concerned and otherwise proper to make any departure.  That process did not depend on whether the 2012 order was or was not corrected. 

17. It depended on there being an administrative assessment of child support for the children concerned and then there being an application for departure.  The relevant assessment was based on a taxable income of around $91,000.00 for the father; and around $47,500.00 for the mother; resulting in a payment of child support by the father to the mother, as a consequence of the care arrangements and number of children concerned of around $4,700.00 per annum.

18. In this particular case, there were two such applications for departure, ironically as matters have progressed, the initial one of them initiated by the father, but both relying on the income, property and financial resources of each parent.  As such the fundamental jurisdictional task of the AAT turned on it examining and making findings of fact, about the financial circumstances of each of the parties concerned.

19. In my view, a fair reading of the AAT’s decision of 2 April 2019 indicates that it followed the jurisdictional path required of it.  In my view, it conducted a thorough analysis of the income and property of each of the parties.  As previously indicated, it considered the father’s financial affairs to be complex in nature.

20. This analysis indicated a significant disparity between the father’s situation and that of the mother – the father’s income, based on a quantification of his financial resources was found to be above $185,000.00 per annum or roughly double the income referrable in the assessment under review; the mother’s income was found to be in the order of $46,800.00 per annum. 

21. The mother was further found to be a PAYG taxpayer, who had entered into a salary sacrifice arrangement with her employer, which resulted in her later receiving a fringe benefit tax assessment.  As a consequence, her child support income was based on estimates, which were later subject to reconciliation, by the Agency, when she completed her tax returns.  In this context, the AAT accepted the mode of calculation of the mother’s income, for child support purposes, had not resulted in any disadvantage to the father. 

22. It was this discrepancy that led the AAT to make its central finding in the case as follows:

    “In my view, the discrepancy is of sufficient significance to demonstrate that the administrative assessment in place at the time of the subsequent application for a change of assessment was unjust and inequitable having regard to the [father’s] financial resources.”[39]

    [39]  See AAT decision dated 2 April 2019 at page 10 [58]

23. It was this gross disparity of financial resources which led the AAT to conclude that the existing administrative assessment was unjust and inequitable.  It was required to make this finding in the context of the situation as prevailing in 2016, not at the time of the earlier order. 

24. In this sense the 2012 order had only peripheral relevance as the assessment from which departure was sought.  The AAT was not entitled to enquire as to the justice and equity of this earlier order.  It was asked to amend it but declined to do so.  The outcome of this application did not alter the status of the 2012 order.  The AAT was required to apply its jurisdiction as to the situation prevailing in 2016, not 2012.

25. It is Mr d’Assumpcao’s submission that the AAT was required to consider the earlier order.  In my view, it did consider the order in the sense that it was required to do so.  Thereafter, it had limited significance and then only in the sense that previously, ostensibly at least, the parties had reached their own arrangements in respect of financial arrangements for their children – an outcome the legislation encourages, provided the relevant authorities are satisfied that such an outcome falls within the overall ethos of the applicable legislation.

26. It was in this context that the AAT did actually consider the justice and equity of the earlier order.  In this setting, the AAT said as previously quoted:

    “I am of the view that the discrepancy between the annual rate of child support calculated by reference to the 2012 SSAT decision and my findings as to [the father’s] financial resources is so great that the administrative assessment based on the 2012 SSAT decision is unjust and inequitable regardless of the fact that it was arrived at as a result of the parents' agreement.”

27. Again, in my view, it is of no significance that, as the AAT conceded, it did not know how closely, if at all, the SSAT considered the parties’ income situation, when it made the earlier consent order, what mattered was the situation as at 2016, when the AAT considered the discrepancy so great as to be inequitable to justify the maintenance of the 2012 order.

28. In this context, in my view, the fact of an earlier consent order, representing previous parental agreement, was of peripheral relevance at best and in this sense did receive a sufficient level of consideration from the AAT.  As such, it cannot be regarded as a decisive factor or one which could have conceivably affected the outcome.  The factor which led to the decision in question was the gross discrepancy of income in 2016, which was anathema to the overall ethos and application of the child support scheme.

29. Essentially, it is the father’s position that the AAT ignored the fact that the parties had earlier reached a consent position and this fact may have proved influential in determining the overall equity of any subsequent departure order.  Care must be taken by a reviewing court, such as this one, to too readily draw a conclusion that an issue has been overlooked by the primary decision maker.

30. As the Full Court said in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs:

    “The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons.  But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point.  It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected.  Where however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”[40]

    [40]  Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 75 ALD 630 at 641 [47]

31. The decision of the AAT is, in my view, comprehensive.  It was well aware of the earlier consent order and the controversy surrounding the omission of the relevant annotation.  It analysed the potential effect of the annotation in its December 2018 determination.  It determined it was incompatible with the overall legislative intent of the child support scheme.  The dispositive factor in the outcome of the review was the inequality in the income and financial resources of each of the parents concerned.

32. In all these circumstances, I have come to the conclusion that the amended notice of appeal, as amended by counsel for the father at the hearing of the appeal, must be dismissed.

Costs

1. Costs in relation to these proceedings are governed by the Family Law Act1975.[41]  The general rule is that each party bears their own costs.[42]  However, the court may make an order for costs if it is satisfied there are circumstances that justify it doing so.[43] In making that determination, the Court is required to consider the matters set out in section 117(2A) of the Act.

   [41] Section 105, Child Support (Registration and Collection) Act1988

   [42] Section 117(1), Family Law Act 1975

   [43] Section 117(2), Family Law Act 1975

2. The considerations contained in the section include the financial circumstances of the parties concerned; the conduct of the parties to the proceedings; and whether one of the parties concerned has been wholly unsuccessful.  The court is also authorised to consider any other matter which it considers relevant.

3. The Registrar is a Commonwealth funded instrumentality charged with overseeing the integrity of the child support scheme and ensuring the relevant administrative decisions are appropriately made according to law.  Axiomatically, it has ample resources to fund proceedings such as these.

4. The mother is a salary earner who receives an income which I regard as being modest, certainly when compared to the applicant, who is an accountant with other business interests.  The mother is also in receipt of legal aid.

5. The father has been unsuccessful in his application.  The central factual issue, giving rise to the proceedings, was the very significant disparity in the income, property and financial resources of each of the parents concerned.  One of the ironies of the case is that it was the father, a person found to be of significant worth, who had created a financial matrix of trusts and other entities to control a mixed portfolio of assets, the affairs of which were described as complex, who chose to challenge the earlier assessment on the basis of an understatement of the mother’s income, when she axiomatically earned far less than him.

6. This aspect of the case was found to have no merit and was not pursued in the proceedings before me.  Nor was any serious attempt made to argue that there was not the significant disparity in the incomes of each of the parents concerned.  Rather the focus, in the case, was on asserted procedural irregularities in the decision making process.

7. In composite, in my view, these various factors render it proper that an order for costs be made against the applicant.  It would not be just that there be two awards, in an amount of $7,000.00 for each respondent, given the very significant overlap in the manner in which they approached the case.

8. In these circumstances, I will direct that the applicant pay costs calculated in the sum of $3,500.00 to each of the respondents concerned.

1. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and sixty eight (168) paragraphs are a true copy of the reasons for judgment of Judge Brown.

Date: 6 May 2020

[33]Minister for Aboriginal AffairsvPeko- Wallsend Ltd (1986) 162 CLR 24 at 40