Cte22 v Child Support Registrar

[2023] FedCFamC2G 998

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

CTE22 v Child Support Registrar [2023] FedCFamC2G 998

File number(s):

PEG 153 of 2022

Judgment of:

JUDGE LUCEV

Date of judgment:

3 November 2023

Catchwords:

ADMINISTRATIVE LAW – Child support – appeal from decision of the Administrative Appeals Tribunal – whether Tribunal failed to afford applicant the opportunity to provide further information – whether Tribunal failed to afford applicant procedural fairness – whether appeal raises a question of law – cross-appeal – whether cross-appeal raises a question of law

PRACTICE AND PROCEDURE – Extension of time – application to extend time to file appeal – factors for consideration – length of and explanation for delay – prejudice – whether sufficient merit in proposed appeal

WORDS AND PHRASES – “question of law”

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) ss 3, 44, 44AAA, 46

Child Support Assessment Act 1989 (Cth) ss 98C, 111, 112, 117

Child Support (Registration and Collection) Act 1988 (Cth) ss 89, 113A

Evidence Act 1995 (Cth), s 161

Cases cited:

Brar v Minister for Immigration and Border Protection (No 2) [2017] FCCA 1538; (2017) 322 FLR 81

BVG17 v BVH17 [2019] FCAFC 17; (2019) 268 FCR 448

Carrell v Mayne [2021] FedCFamC2G 162

CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496; (2016) 70 AAR 413

Davis v Insolvency and Trustee Service Australia [2010] FCAFC 141

Dixon v Child Support Registrar [2017] FCCA 1540

Djokovic vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; (2022) 397 ALR 1; [2022] FCAFC 3

Hamden v Secretary, Department of Human Services [2013] FCA 3; (2013) 59 AAR 108

Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92

HGMZ v Secretary, Department of Social Services [2021] FCA 280

Humphries & Berry (SSAT Appeal) [2008] FMCAfam 409

Hunter & Child Support Registrar (2017) 326 FLR 318; [2017] FamCAFC 259

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315; [1984] FCA 186

Luton v Lessels [2002] HCA 13; (2002) 210 CLR 333; (2002) 76 ALJR 635; (2002) 187 ALR 529; (2002) 49 ATR 471

Manchester & Manchester and Ors (SSAT Appeal) [2011] FMCAfam 1215

Minister for Immigration & Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 36 ALD 547

Minister for Immigration and Border Protection & Anor v SZSSJ & Anor [2016] HCA 29; (2016) 259 CLR 180; (2016) 90 ALJR 901; (2016) 334 ALR 653

Minister for Immigration and Border Protection vPandey [2014] FCA 640; (2014) 143 ALD 640

Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367; (2010) 84 ALJR 369; (2010) 115 ALD 248

Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99; (2013) 302 ALR 572; (2013) 136 ALD 41

Morse & Potts(SSAT Appeal) [2010] FMCAfam 1305

MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203

MZZUG v Minister for Immigration and Border Protection [2015] FCA 1151

NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241

P v Child Support Registrar [2014] FCAFC 98; (2014) 225 FCR 378; (2014) 64 AAR 247

Re Minister for Immigration and Multicultural Affairs and Indigenous Affairs; Ex Parte Lam [2003] HCA 6; (2003) 214 CLR 1; (2003) 77 ALJR 699; (2003) 195 ALR 502

Repatriation Commission v Owens (1996) 70 ALJR 904

S & D [2005] FMCAfam 446

Somer & Child Support Registrar & Anor [2016] FCCA 49

Sullivan v Department of Transport (1978) 20 ALR 323; (1978) 1 ALD 383

SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1; (2012) 289 ALR 463; (2012) 127 ALD 1

SZVHC v Minister for Immigration and Border Protection [2016] FCA 1324

Thomas & Harry (SSAT Appeal) [2010] FMCAfam 310

Tu’utaKatoa v Minister for Immigration, Citizenship, Migrant Services and Multicutural Affairs [2022] HCA 28; (2022) 96 ALJR 819; (2022) 403 ALR 604; (2022) 178 ALD 573

Division:

Division 2 General Federal Law

Number of paragraphs:

102

Date of last submission/s:

29 March 2023

Date of hearing:

29 March 2023

Place:

Perth

Appellant and Second Cross-Respondent:

In person

Counsel for the First Respondent and First Cross-Respondent:

Ms R Horsley

Solicitor for the First Respondent and First Cross-Respondent:

Mills Oakley Lawyers

Second Respondent and Cross-Appellant:

In person

Third Cross-Respondent:

No appearance

ORDERS

PEG 153 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CTE22

Appellant and Second Cross-Respondent

AND:

CHILD SUPPORT REGISTRAR

First Respondent and First Cross-Respondent

CTF22

Second Respondent and Cross-Appellant

ADMINISTRATIVE APPEALS TRIBUNAL

Third Cross-Respondent

ORDER MADE BY:	JUDGE LUCEV
DATE OF ORDER:	3 NOVEMBER 2023

THE COURT ORDERS THAT:

1.The Appellant’s application for an extension of time in which to file a Notice of Appeal under s 44AAA of the Administrative Appeals Tribunal Act 1975 (Cth) filed 9 August 2022 be dismissed.

2.The Notice of Cross-Appeal filed 1 September 2022 be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

Section 110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in child support review proceedings.

IT IS NOTED that publication of this judgment under a pseudonym is approved pursuant to s 110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).

REASONS FOR JUDGMENT

JUDGE LUCEV

INTRODUCTION

1. The applicant, CTE22 and the second respondent, CTF22, are the parents of a child born in 2003 (“Child”). CTE22 and CTF22 are not married to one another.

2. Before the Court is an originating application styled as a Notice of Appeal and an application for an extension of time in which to file the Notice of Appeal (“Proposed Appeal” and “Extension of Time Application” respectively). The Proposed Appeal seeks review pursuant to s 44AAA of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) of a child support assessment review decision made by the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) on 23 June 2022.

3. CTE22 filed the Proposed Appeal and the Extension of Time Application on 9 August 2022 against the first respondent, the Child Support Registrar (“Registrar”), and CTF22. On 1 September 2022 CTF22 filed a Notice of Cross-Appeal (“Cross-Appeal”) with the Registrar as Cross-Respondent, CTE22 as the Second Cross-Respondent and the Tribunal as the Third Cross-Respondent.

4. The Tribunal Decision concerned whether there should be a departure from the administrative assessment of child support: Tribunal Decision at [1]. The Tribunal Decision is annexed to CTE22’s Proposed Appeal and Extension of Time Application.

   TRIBUNAL DECISION

5. In the Tribunal Decision the Tribunal:

   (a)set out the background, noting that there has been a child support assessment in place since early 2006 with CTE22 being the liable parent under the assessment: Tribunal Decision at [1]-[2];

   (b)noted that the following administrative assessments of child support were under consideration:

   (i)for the period from 1 April 2020 to 10 February 2021 CTE22 was assessed to pay an annual rate of child support of $4,803 based on a 2018-19 provisional adjusted taxable income of $54,1811 for CTE22 and a 2018-19 adjusted taxable income for CTF22 of $16,998;

   (ii)for the period from 11 February 2021 to 30 June 2021 CTE22 was assessed to pay an annual rate of $1,558 based on a 2018-19 adjusted taxable income of $34,855 for CTE22 and a 2018-19 adjusted taxable income for CTF22 of $16,998; and

   (iii)for the period from 1 July 2021 to 26 November 2021 CTE22 was assessed to pay an annual rate of $4,405 based on an amount derived from Male Total Average Weekly Earnings of $52,638 for both parents: Tribunal Decision at [3];

   (c)set out the relevant child support review history between the parties prior to the Tribunal Decision which is as follows:

   (i)on 22 April 2021 CTF22 applied to the Child Support Agency (“CSA”) for a change to the assessment on the basis of a parent’s income, property, financial resources and earning capacity: Tribunal Decision at [4];

   (ii)on 16 July 2021 the CSA decided to change the assessment so that from 1 May 2021 to 26 November 2021 the adjusted taxable income of CTE22 was set at $120,629: Tribunal Decision at [5];

   (iii)on 31 July 2021 CTF22 objected to this and on 3 October 2021 the CSA allowed the objection in part and decided to change the assessment so that from 1 May 2021 until a terminating event for the Child, the adjusted taxable income of CTE22 was set at $120,631 (“October 2021 CSA Decision”): Tribunal Decision at [6]; and

   (iv)on 20 October 2021 CTF22 applied to the Tribunal for administrative review of the October 2021 CSA Decision: Tribunal Decision at [7];

   (d)noted that it held a directions hearing on 1 February 2022 (“Tribunal Directions Hearing”) with CTF22 and CTE22 both attending by telephone: Tribunal Decision at [8];

   (e)noted that it held a hearing on 12 May 2022 (“Tribunal Hearing”) with CTF22 and CTE22 giving evidence on affirmation by Microsoft Teams audio: Tribunal Decision at [10]. Documents provided by CTF22 and CTE22 prior to the Tribunal Hearing were distributed to the parties. During the Tribunal Hearing the Tribunal agreed to allow CTE22 to provide additional financial information which was received later on 12 May 2022. A copy of this additional financial information was sent to CTF22 with the Tribunal receiving no further written correspondence in response: Tribunal Decision at [10];

   (f)noted that at the Tribunal Directions Hearing, the Tribunal sought clarification from CTF22 and CTE22 as to the reasons for their concerns. CTF22 stated that the CSA had calculated the income of CTE22 based on out of date information and wanted a more current assessment by the Tribunal. CTF22 further stated that she was seeking to have any decision by the Tribunal backdated by 18 months. CTE22 stated that the CSA had determined his income based on inaccurate information and arrived at an incorrect amount. CTE22 further claimed that the proportion of income from his business had been unfairly split between him and his current wife (“Wife”) and should have been shared equally: Tribunal Decision at [11];

   (g)set out the relevant law to be considered: Tribunal Decision at [12]-[20];

   (h)noted that in circumstances where multiple grounds for departure from an assessment are put forward, the Tribunal needs only be satisfied that one ground is established before going on to determine whether or not a particular determination is just and equitable and otherwise proper: Tribunal Decision at [21];

   (i)identified that a ground for departure exists where, in the special circumstances of the case, an application of the administrative assessment of child support would result in an unjust and inequitable determination of child support to be provided by the liable parent in respect of a child because of the income, property and financial resources of either parent, citing the Child Support Assessment Act 1989 (Cth) (“CS Assessment Act”), s 117(2)(c)(ia): Tribunal Decision at [22];

   (j)had regard to CTF22’s income, financial circumstances and relevant documents including copies of her ATO pre-filing report for 2019-2020 and draft accounts for 2020-2021: Tribunal Decision at [23]-[27];

   (k)had regard to CTE22’s income, financial circumstances and relevant documents including individual tax returns filed with the ATO in 2018-2019: Tribunal Decision at [30], [35]-[36];

   (l)considered CTE22’s evidence in which he stated that:

   (i)he was self-employed and has run a business called B Company in Perth since around late 2016, and that he was also involved with a second business known as C Company in City D: Tribunal Decision at [31];

   (ii)B Company operated under a trust structure through the “E” Family Trust (“E Family Trust”), the corporate trustee of which was “F” Pty Ltd (“F Pty Ltd”). CTE22 stated that he was a director and 50% shareholder of F Pty Ltd and his Wife was the other 50% shareholder, noting that CTE22 said his Wife played a vital role in the business: Tribunal Decision at [32]; and

   (iii)C Company also operated under a trust structure through the “E” Unit Trust (“E Unit Trust”), the corporate trustee of which was “G” Pty Ltd (“G Pty Ltd”). CTE22 stated that he was a director of G Pty Ltd and that F Pty Ltd was a 50% shareholder in G Pty Ltd, and that the other 50% was owned by his Wife’s parents who had provided all the capital to establish the business: Tribunal Decision at [33]-[34];

   (m)in relation to CTE22’s income:

   (i)noted that CTE22 told the Tribunal he did not receive a wage from B Company but was paid through weekly drawings, and that this income was reflected in the accounts of the E Family Trust and in CTE22’s individual tax return, and that he did not receive income from any other source: Tribunal Decision at [35];

   (ii)that CTE22 said he was unable to provide the Tribunal with his 2019-2020 and 2020-2021 individual tax returns in accordance with directions given by the Tribunal, as neither had been filed with the ATO: Tribunal Decision at [36];

   (iii)noted that in evidence from the CSA was a copy of CTE22’s 2018-2019 individual tax return which showed an adjusted taxable income of $34,855 derived from a trust, and that CTE22 now said he did not expect his income in 2019-2020 or 2020-2021 to be much different (presumably from his 2018-2019 income): Tribunal Decision at [36];

   (iv)that CTE22 said that B Company had been running for about three years and had only just started making money, and that an average business like B Company would make a profit of around 15% of gross sales but in 2018-2019 B Company’s profit was only around 8%, which was not surprising as B Company was still paying off equipment and expenses as the business was still in its infancy: Tribunal Decision at [38];

   (v)at the start of the Tribunal Hearing CTE22 said he was unable to provide the tax returns for the E Family Trust or the accounts for B Company for 2019-2020 and 2020-2021 and said that he had recently swapped accountants, and that the tax returns “were still being completed”: Tribunal Decision at [39];

   (vi)CTE22 said that C Company had only been operating since 1 July 2020 and that he did not have financial information available for it: Tribunal Decision at [39];

   (vii)noted that in evidence from the CSA was a copy of the E Family Trust tax return for 2018-2019 which showed net income of $69,711 derived from total business income of $892,482 less total expenses of $839,893, and that in this respect profit as a proportion of gross sales was 7.8% with a cost of sales total of $461,278 plus other major expenses which were set out: Tribunal Decision at [40];

   (viii)noted that CTE22 explained that the 2018-2019 income of $892,482 was generated in the course of his business and that sales were $461,278 : Tribunal Decision at [41];

   (ix)noted that CTE22 said that sales revenue for B Company fell in the first half of 2019-2020 due to the COVID-19 pandemic but then bounced back strongly and that sales in 2020-2021 were up from 2019-2020: Tribunal Decision at [42];

   (x)noted that CTE22 said that C Company generated sales revenue of approximately $1.2m in 2020-2021 but was running at a loss, and that neither CTE22 nor his Wife had received any drawings from C Company and that up until the start of 2022 had not received a salary, and that C Company’s business losses were being funded by his Wife’s parents: Tribunal Decision at [42];

   (xi)noted that following the Tribunal Hearing CTE22 provided the Tribunal with draft profit and loss statements for B Company for 2019-2020 and 2020-2021, according to which B Company returned a net profit of $143,917 in 2019-2020 based on total income of $935,257 and total expenses of $791,340, with profit as a proportion of gross sales being 15.3%: Tribunal Decision at [43];

   (xii)noted that in the 2020-2021 profit and loss statement for B Company a loss of $4,076 based on total income of $1,122,993 and total expenses of $1,127,069 was shown: Tribunal Decision at [43];

   (xiii)no balance sheets, depreciation schedules or any other relevant financial information was provided in conjunction with the draft profit and loss statements for B Company for 2019-2020 and 2020-2021: Tribunal Decision at [43];

   (xiv)noted that in 2020-2021 an amount of $70,342 for administration wages was listed, that being a role which CTE22’s Wife was performing in addition to  marketing activities: Tribunal Decision at [44]; and

   (xv)noted that an amount of $20,726 as an expense for C Company was listed in the 2020-2021 profit and loss statement which suggested some expenses for C Company were being run through B Company: Tribunal Decision at [44];

   (n)was not satisfied that CTE22 had provided full disclosure of his financial circumstances: Tribunal Decision at [45];

   (o)referred to the difficulty in determining a parent’s income for the purposes of child support in such circumstances, a difficulty which had been judicially considered on a number of occasions, citing Humphries & Berry (SSAT Appeal) [2008] FMCAfam 409 (“Humphries”) and Morse & Potts(SSAT Appeal) [2010] FMCAfam 1305 (“Morse”): Tribunal Decision at [46];

   (p)based on B Company’s annual revenue of $1,122,193 in 2020-2021, and CTE22’s evidence of profits made by businesses, was satisfied that CTE22 had a net income available to him from the operation of B Company of approximately $168,449: Tribunal Decision at [46]-[47], noting that CTE22 told the Tribunal that up until the start of 2022 he was not receiving a salary or other benefits from C Company but provided no evidence to support this contention: Tribunal Decision at [47];

   (q)noted that CTE22 had said that he and his Wife were equal shareholders in B Company, but the Tribunal determined that it was the skills of CTE22 upon which the business is based. In light of the role performed by the Wife the Tribunal considered her share of business income to be more appropriately fixed at 30%: Tribunal Decision at [48];

   (r)referred to further evidence of CTE22’s financial circumstances: Tribunal Decision at [49]-[51] including that:

   (i)CTE22 had provided the Tribunal with a statement of financial circumstances on 17 December 2021 showing an average weekly income of $732 being income and benefits derived from CTE22’s business (presumably only B Company), and total weekly household expenditure of $802 including CTE22’s share of the home mortgage being $313, with no motor vehicle expenses and total personal expenditure of $1,198 which includes $1,153 for child support, which the Tribunal observed was obviously not a weekly amount based on the administrative assessment: Tribunal Decision at [49];

   (ii)CTE22 had total assets valued at approximately $256,016 which included his half share of the family home being $180,000, a motor vehicle valued at $16,000, household contents of $40,000 and personal items, and declared total liabilities of approximately $180,000 being his half share of the family home mortgage: Tribunal Decision at [49];

   (iii)the Tribunal was not satisfied that CTE22’s income and financial resources for the purposes of child support were accurately reflected by his taxable income alone, and determined that CTE22 had access to income from his business of approximately $118,000 and that after allowing reasonable deductions found that he had income, property and financial resources equivalent to a person with an adjustable taxable income of approximately $116,000 in 2020-2021 and going forward: Tribunal Decision at [50];

   (iv)as CTE22 and CTF22 were receiving additional benefits through their respective businesses in the form of motor vehicle and telephone expenses the Tribunal had treated those equally and not considered those benefits in its determination: Tribunal Decision at [51]; and

   (s)when using the income, property and financial resources available to the parents as calculated by the Tribunal the annual rate of child support would be approximately $14,092: Tribunal Decision at [52], and found this to be “significantly more” than CTE22’s liability under the administrative assessment, and was therefore satisfied that special circumstances existed and that the application of the administrative assessment would result in an unjust and inequitable determination of child support to be provided by CTE22, and on this basis found that there was a ground for departure from the administrative assessment: Tribunal Decisional at [53];

   (t)in accordance with s 98C(1)(b)(ii)(A) of the CS Assessment Act considered whether it is just and equitable as regards the Child, the liable parent, and the carer entitled to child support to make a particular determination, which it said required it to consider the matters referred to in s 117(4) of the CS Assessment Act: Tribunal Decision at [54], namely:

   (i)the nature of the duty of a parent to maintain a child, in relation to which the Tribunal had regard to the fact that CTE22 had four dependent children and CTF22 had one other “liable child”: Tribunal Decision at [55]-[56];

   (ii)the proper needs of the Child, in relation to which the Tribunal observed that CTE22 and CTF22 had not made the Tribunal aware of any particular expectations in relation to the Child: Tribunal Decision at [57]-[58];

   (iii)the income, earning capacity, property and financial resources of the Child, in relation to which the Tribunal was satisfied that the Child had no income, earning capacity, property and financial resources: Tribunal Decision at [59]; and

   (iv)the income, property, financial resources and earning capacity of each parent, which was a matter the Tribunal observed it had already considered, and in relation to which otherwise the criteria for rendering the assessment unfair under s 117(7B) of the CS Assessment Act were not met: Tribunal Decision at [60]-[63];

   (v)any hardship that would be caused: Tribunal Decision at [64]-[73], in relation to which the Tribunal considered:

   (A)the respective incomes of the parties, noting that CTF22 was “on a low income”: Tribunal Decision at [64];

   (B)that CTF22 was struggling to meet expenses and was currently not receiving child support from CTE22: Tribunal Decision at [65];

   (C)that CTE22 had access to income, earning capacity, property and financial resources of approximately $116,000 per annum for child support purposes, declared estimated household expenditure of $41,704 per annum and “minimum personal expenditure”: Tribunal Decision at [66];

   (D)that CTF22 had not fulfilled the onus with respect to any backdating of the assessment, and it was therefore just and equitable to commence any new determination from 22 April 2021: Tribunal Decision at [70];

   (u)having considered the interests of both parents, proposed to make the following determination:

   (i)for the period from 22 April 2021 until a terminating event for the Child the adjusted taxable income of CTF22 be varied to $50,000; and

   (ii)for the period from 22 April 2021 until a terminating event for the Child the adjusted taxable income of CTE22 be varied to $116,000: Tribunal Decision at [71] and p 12,

   which it found would not cause hardship to CTE22, CTF22 or the Child, and which was otherwise just and equitable: Tribunal Decision at [73];

   (v)calculated the annual rate of child support payable by CTE22 as being approximately $14,092: Tribunal Decision at [72];

   (w)as to whether it is otherwise proper to make a particular departure determination, found that an increase in child support entitlements may decrease the extent to which the community had to support CTF22 (through family assistance), and that it was satisfied that the increase in child support entitlements would result in an appropriate apportionment of financial responsibility between the parents and the taxpayer: Tribunal Decision at [74]-[75]; and

   (x)set aside the October 2021 CSA Decision and in substitution therefore decided that:

   (i)for the period from 22 April 2021 until a terminating event for the Child the adjusted taxable income of CTF22 be varied to $50,000; and

   (ii)for the period from 22 April 2021 until a terminating event for the Child the adjusted taxable income of CTE22 be varied to $116,000: Tribunal Decision, p 13.

   EXTENSION OF TIME APPLICATION

1. The Extension of Time Application was made on the following basis:

   Some slightly misguided information received from the courts made lodgement difficult and delayed . Time was waisted with an elodgement services application to the wrong court followed by the wrong forms due to information on incorrect elodgement site. Forms were printed and filled out for submission to find out we can’t submit at our court hear in [City D]. Then had to apply for elodgement and that was delayed as I was given the wrong web address for the court required.

   PROPOSED APPEAL

2. CTE22’s Proposed Appeal:

   (a)contained the following grounds of appeal:

   1.Even though it was brought to the attention of the AAT that business financials were not up to date and a new accountant had been appointed time was not given to produce relevant financials.

   2.Administrative wages shown on the profit and loss was assumed to be for … [CTE22’s] wife adding to total income , they are in fact for admin employees

   3.No consideration or attempt to consider the work load split between … [CTE22] and his wife, How they came to start the business or the roles within the business. it was just assumed that … [CTE22] was the driver behind the business as he is a [tradesperson]. 

   (b)said that the questions of law were:

   1.        How can a fair and just decision be made on assumptions of income?

   2.With evidence of income available in the near future why wasn’t time give to produce the relevant documentation?

   (c)sought the following orders:

   1.        The decision of the AAT be set aside

   2.        Financials from accountants for both parties be reviewed

   3.        Income split for … [F Pty Ltd] be revised to 50/50

   4.        An extension of time be granted for appeal

   CROSS-APPEAL

3. CTF22’s Cross-Appeal:

   (a)contained the following grounds of cross-appeal:

   1. … [CTE22] was given the same time frame as me to submit all required paperwork to AAT. It was within the recommended timeframe.

   2.… [CTE22] has not been compliant or organised with this and is wasting courts time. It is evident that … [CTE22] would rather pay fees to the Federal court than pay his Child support arears.

   (b)said that the questions of law were:

   1.The AAT findings be backdated 18 months (section98s(3B) (a) as per paragraph 67, 68, 69

   2.… [CTE22] was aware of the AAT Hearing dates and what was required to submit, the process with AAT started in December of 2021 and was not finalised till June 2022.

   3.All annexed academic records of … [CTF22] be dismissed as they are irrelevant to child support between … [CTE22] and … [CTF22].

   (c)requested that the Court made findings of fact as follows:

   1.Running 2 Businesses under trusts that … [CTE22] is Director of both as per Paragraph 32, 33, and 34 of AAT decision.

   2.… [CTE22] has not lodged any tax returns for himself with the ATO to get an accurate figure of earnings.

   3.Paragraph 44 of the AAT findings found and additional [Tradesperson] Wages for $257,366 this had been a new wage added in in 20-21, the current average wage for this job description is $76K.

   4.… [CTE22] has refused to pay his sons Child support for the past 15 years even when the assessments were at a low rate.

   5.Child Support have exhausted all avenues to collect from … [CTE22], currently has a Departure Prohibition order on him and I believe a caveat on the sale of his house in … [suburb name deleted]

   (d)sought the following orders:

   1.   That the Applicants Appeal dated 28/7/22 be dismissed.

   2. Section 111 for leave to have Child Support backdated 7 years

   3.   Registered Child Support Court Order sort for the payment enforcement of the outstanding debt paid with a date.

   ORDERS MADE AT DIRECTIONS HEARING

4. At a directions hearing on 9 September 2022 the Court made the following orders (“September 2022 Orders”):

   1. The Application for an Extension of Time, the Notice of Appeal (Child Support) and the Notice of Cross-Appeal be set down for hearing on 29 March 2023 at 10.00am in the Federal Circuit and Family Court of Australia at Perth.

   2. The Applicant file and serve any affidavit in support of the Application for an Extension of Time no later than 21 November 2022.

   3. The Applicant have liberty to amend the Notice of Appeal to plead the question or questions of law provided that such amendment has been filed and served no later than 4:00pm on 21 November 2022.

   4. The Applicant have liberty to file an Affidavit in support of the Amended Notice of Appeal with the question of leave to accept any additional Affidavit evidence in support of the grounds for appeal be determined at the hearing listed pursuant to order 1.

   5. If applicable, the Applicant file and serve an affidavit exhibiting any additional documentation that was before the AAT but has not been supplied pursuant to s 46(1)(a) of the Administrative Appeals Tribunal Act 1975 by no later than 4:00 pm on 21 November 2022.

   6. The Second Respondent have liberty to amend the Notice of Cross-Appeal to plead the question or questions of law provided that such amendment has been filed and served no later than 4:00pm on 21 November 2022.

   7. If applicable, the Second Respondent file and serve an affidavit exhibiting any additional documentation that was before the AAT but has not been supplied pursuant to s 46(1)(a) of the Administrative Appeals Tribunal Act 1975 by no later than 4:00 pm on 21 November 2022.

   8. In the event the Applicant and/or the Second Respondent intend to rely on the transcript (or part thereof) the grounds of appeal, the Applicant and/or the Second Respondent shall obtain (and to that end pay the costs of the preparation of the transcript) and then file and serve an affidavit annexing the transcript no later than 4:00pm on 21 November 2022.

   9. For the Appeal and the Cross-Appeal the following documents shall be relied upon:

   9.1 The Notice of Appeal or any amended Notice of Appeal filed pursuant to Order 3 above;

   9.2 The Notice of Cross-Appeal or any amended Notice of Cross-Appeal filed pursuant to Order 5 above;

   9.3      A copy of the decision of the AAT;

   9.4      The statement of reasons for that decision;

   9.5 The documents that were before the AAT in relation to the proceedings to which the Appeal relates and provided to the Court in accordance with s 46(1)(a) of the Administrative Appeals Tribunal Act 1975;

   9.6      Any affidavit filed pursuant to Orders 4, 5 and 7 above;

   9.7 The transcript of the AAT proceedings if filed pursuant to Order 7 above;

   9.8 Any such other document(s) for which leave of the Court has been granted.

   10. The parties must obtain leave of the Court to rely upon any other document or to receive further evidence.

   11. The parties shall have leave to inspect and copy the s.46(1)(a) documents.

   12.      The Applicant file and serve written submissions by 15 February 2023.

   13.      The Second Respondent file and serve written submissions by 1 March 2023.

   14. The Child Support Registrar file and serve written submissions by 15 March 2023.

   15. The Applicant and Second Respondent file and serve any written submissions in reply by 22 March 2023.

   16. Each party have liberty to apply for any further directions on the giving of two (2) days’ notice in writing to the other.

   17. Costs be reserved.

5. In relation to the September 2022 Orders it is pertinent to observe that:

   (a)CTE22 did not file an amended Proposed Appeal to plead a question of law or questions of law, and consequently no affidavit in support thereof, pursuant to Orders 3 and 4;

   (b)CTF22 did not file an amended Cross-Appeal to plead a question of law or questions of law, pursuant to Order 6;

   (c)neither CTE22 nor CTF22 filed:

   (i)the transcript of the Tribunal Hearing, pursuant to Order 8;

   (ii)any additional documents that were before the Tribunal but not included in the documents forwarded to the Court by the Tribunal pursuant to s 46(1)(a) of the AAT Act, pursuant to Orders 5 and 7; and

   (iii)written submissions, pursuant to Orders 12 and 13; and

   (d)CTE22 did not file any submissions in reply, pursuant to Order 15.

6. Pursuant to the September 2022 Orders the following documents were filed:

   (a)on 21 November 2022, CTE22 filed an affidavit affirmed on 21 November 2022 (“CTE22’s Affidavit”) which affirmed no facts, but to which seven annexures were attached, being;

   (i)a letter dated 21 November 2022 from Mr H, Director of H Company directed to “whom it may concern” (“Mr H Letter”);

   (ii)an undated letter from Mr J, Business Development Manager employed with K Company directed to “whom it may concern” (“Mr J Letter”);

   (iii)individual tax return documentation for CTE22 (2019-2020);

   (iv)individual tax return documentation for CTE22 (2020-2021);

   (v)individual tax return documentation for the Wife (2019-2020);

   (vi)individual tax return documentation for the Wife (2020-2021); and

   (vii)financial statements for the E Unit Trust and the E Family Trust (for 2019-2020 and 2020-2021),

   and at the hearing CTE22’s Affidavit was admitted into evidence generally (over objection)  on the basis that it went to a question of law with respect to possible procedural fairness or legal unreasonableness in relation to the issues surrounding the Tribunal Decision and its timing and whether or not an opportunity ought to have been given to CTE22 to provide further information to the Tribunal, and whether the Tribunal ought to have waited for that information before making the Tribunal Decision;

   (b)on 13 March 2023 the Registrar filed an Outline of Submissions in which the Registrar submitted that:

   (i)in relation to the Extension of Time Application:

   (A)while the delay is short, CTE22 has failed to adequately explain the delay and the Proposed Appeal exposes no error of law in the Tribunal Decision; and

   (B)given the specific and public interest in finality of such decisions, leave to extend time for CTE22 to file the Proposed Appeal should be refused;

   (ii)otherwise, in the event that the Court considers time should be extended for CTE22 to file the Proposed Appeal, the Proposed Appeal should be dismissed as it fails to identify any error of law in the Tribunal Decision;

   (iii)the Cross-Appeal should also be dismissed on the basis that it fails to identify any error of law in the Tribunal Decision, and, under s 111 of the CS Assessment Act, should be dismissed for want of jurisdiction;

   (c)CTF22 filed written submissions in reply to the Registrar’s submissions, which, without alteration, were as follows:

   I am Respondent CTE22 I am the receiving parent of the Child Support in this case. I ask that

   Order 5. The second respondent pay the first respondents costs fixed in the sum of $2926.20 within 30 days.

   Proposed by Child Support Register dated 13 March 2023 , that I CTE22 pay 30% of the court costs incurred in this hearing be dismissed.

   As the Receiving parent and mother of the child in this case I have had to raise our son without any financial assistance received from CTF22. All attempted to retrieve debts by CS has been unsuccessful, a caveat from the commonwealth on his house and a no fly order has also not changed the debt.

   CTF22 has not provided any evidence to support this case as he failed also to provide for CS and AAT when they asked, however has managed to find financials to further purchase another business against his house in [Suburb L] Perth WA. . As Per title search recently obtained.

   Even though AAT come up with a lesser amount than CS and I did not get a backdated payment of the 18 months I requested due to CTF22 ongoing underestimated income I was willing to accept this for this all the be over as our son will be 20 and I have been fighting this system since 2006 with no progress.

   The Cross a appeal was lodged in response to CTF22 Application, I did not withdraw this when CS Registrar send me an email Due to the loss of my mother then my Nan, a best friend and another [later in the year].

   This is a hearing that I did not wish to be involved in right from the beginning.

   CTF22 has started this and should be the bearer of the costs. I am the innocent party in this matter that has raised his son with with no financial assistance from CTF22. I wish nothing more than to move forward with my life with or without The child Support paid in full what is legally owed.

   (The Court notes that in the above submissions, and as CTF22 explained at hearing: Transcript, p 8, CTF22 has transposed the pseudonyms, referring to herself as CTE22 and to CTE22 as CTF22.)

   ORAL SUBMISSIONS AT HEARING

   CTE22

7. At hearing CTE22 submitted in relation to:

   (a)the Extension of Time Application that:

   So when I’ve gone to submit the paperwork – I initially rocked up to the local courthouse to find out how to do it, and they’ve told me that I had to do it through eLodgement. So I rang the courthouse in Perth and was told I had to create an eLodgement portal and lodge the paperwork. I lodged it, to find out that they had actually given me the wrong portal used. So then it actually got rejected because it was with the wrong court, and then when I did submit it for – it was on the wrong form, and by the time we got it all lodged, after speaking to the court several times, it had been almost two weeks.

   (Transcript, p 9)

   (b)the merits of the Proposed Appeal:

   (i)the Tribunal must afford procedural fairness to the parties and must not act in a legally unreasonable way;

   (ii)because his former accountant “fell short”: Transcript, p 9, in the provision of his tax and accounting information, CTE22 had to obtain a new accountant which caused a delay in the provision of up-to-date accounting and tax information to the Tribunal, and that was not the fault of CTE22;

   (iii)the reason for delay in the provision of up-to-date accounting and tax information was made apparent to the Tribunal;

   (iv)no time frame for the provision of up-to-date accounting and tax information was provided to the Tribunal at the time of the Tribunal Hearing;

   (v)he had represented his income as being around $50,000 per annum, but the Tribunal “came up with a decision that’s almost three times that”, and that it was procedurally unfair not “to look at the evidence that would have been available, given the time”: Transcript, p 5, see also p 9.

   CTF22

8. CTF22’s limited oral submissions went no further than her written submissions in reply set out at [11(c)] above, save that, with respect to the Extension of Time Application she observed that she had had “the same timeframe to submit all the paperwork”: Transcript, p 4.

   Registrar

9. The Registrar’s oral submissions adopted the written Outline of Submissions filed on 13 March 2022, but also submitted that:

   (a)the Tribunal Hearing took place on 12 May 2022, but the Mr H Letter was dated 21 November 2022, a significant number of months post-hearing; and

   (b)the Tribunal Decision at [39] indicated that, at most, CTE22 had told the Tribunal that he had recently swapped accountants and that the “financials were still being completed”: Transcript, p 4, and there was no evidence that there was  additional or other evidence before the Tribunal about the timeframe in which further tax and accounting information might be submitted by CTE22.

   CONSIDERATION - EXTENSION OF TIME APPLICATION

   Legislation and case law

10. CTE22 seeks an extension of time in which to appeal the Tribunal Decision pursuant to s 44AAA of the AAT Act, which provides for an appeal to be made to this Court from a child support first review (which the Tribunal Decision is: see AAT Act, s 3(1), definition of “child support first review”, and the Child Support (Registration and Collection) Act 1988 (Cth) (“CS Collection Act”), s 89) by a non-Presidential member of the Tribunal.

11. Section 44 of the AAT Act, which relevantly applies by reason of s 44(2), (3) and (4) thereof, provides that:

    (a)a party may appeal “on a question of law, from any decision of the Tribunal”: AAT Act, s 44(1); and

    (b)an appeal must be instituted, under s 44(2A)(a) of the AAT Act:

    not later than the twenty-eighth day after the day on which a document setting out the terms of the decision of the Tribunal is given to the person or within such further time as the … [Court] (whether before or after the expiration of that day) allows …

12. Whether or not to grant an extension of time to appeal is a discretionary decision for the Court. Relevant considerations as to whether to extend time on appeals from, or reviews of, administrative decisions are generally well established and include:

    (a)the length of the delay;

    (b)the explanation for the delay;

    (c)whether there is any prejudice to the parties;

    (d)the nature of the decision and in that context, the relevant public interest considerations including the need for finality in litigation; and

    (e)the merits of the proposed action.

    See Tu’utaKatoa v Minister for Immigration, Citizenship, Migrant Services and Multicutural Affairs [2022] HCA 28; (2022) 96 ALJR 819; (2022) 403 ALR 604; (2022) 178 ALD 573 (“Katoa”) at [12] per Kiefel CJ, Gageler, Keane and Gleeson J; Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315 (“Hunter Valley Developments”); FCR at 348-349 per Wilcox J; Hamden v Secretary, Department of Human Services [2013] FCA 3; (2013) 59 AAR 108 (“Hamden”) at [35] per Besanko J; Somer & Child Support Registrar & Anor [2016] FCCA 49 (“Somer”) at [8] per Judge Jarrett.

13. The Court will not grant an extension of time if there is no arguable case for relief: Hunter Valley Developments, FCR at 348-349 per Wilcox J; Hamden at [36] per Besanko J; Somer at [9] and [60] per Judge Jarrett; MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 (“MZZIV”) at [6] per Mortimer J.

    Length of delay

14. A copy of the Tribunal Decision was emailed to CTE22 and CTF22 on 30 June 2022, and is therefore presumed to have been received by them on the day it was sent: Evidence Act 1995 (Cth), s 161, there being no sufficient evidence to displace the presumption.

15. In accordance with s 44AAA(2)(a) of the of the AAT Act CTE22 was therefore required to file any appeal on or before 28 July 2022. The appeal was therefore filed some 12 days out of time. That delay is not significant, and does not weigh against the grant of the Extension of Time Application.

    Explanation for the delay

16. CTE22’s explanation for the delay in filing the Proposed Appeal is set out in the Proposed Appeal (at [6] above), and in almost identical terms in his oral submissions at hearing (at [12(a)] above).

17. CTE22 has not, however, filed any affidavit evidence in support of Extension of Time Application, despite being afforded the opportunity to do so by no later than 21 November 2022) pursuant to Order 2 of the September 2022 Orders. CTE22’s Affidavit does not go, at all, to the circumstances concerning his failure to file the Proposed Appeal within time, but rather, annexes, without explanation, documents which deal with the circumstances concerning the engagement of a new accountant and the availability of tax and financial information for CTE22, his Wife, B Company and C Company. This want of evidence can be contrasted with the circumstances set out in the judgment of the Full Court of the Federal Court in BVG17 v BVH17 [2019] FCAFC 17; (2019) 268 FCR 448 (“BVG17”). BVG17 related to an appeal concerning the costs arising from an assessment of child support. In BVG17 at [35]-[37] per Collier and Rangiah JJ reference was made to affidavit evidence from the applicant that:

    (a)the delay in filing a notice of appeal was due to his mistake in seeking to file the notice of appeal in the Family Court (that is the Family Court of Australia, the immediate predecessor to the Federal Circuit and Family Court of Australia (Division 1)) rather than the Federal Court;

    (b)he had filed a notice of appeal with the Family Court on a date which was within the time limit prescribed for appeals to the Family Court;

    (c)19 days after filing with the Family Court he received a letter from the Appeals Registrar of the Family Court that he had filed in the wrong court; and

    (d)he then promptly filed in the Federal Court. 

1. In BVG17 at [37] per Collier and Rangiah JJ regard was had to:

   (a)the fact that the applicant was self-represented;

   (b)the history of the litigation, which had been in the Family Court;

   (c)the fact that (at that time) relevant authorities and issues were in the family law jurisdiction; and

   (d)the appearance of some confusion on the part of the Registry of the Family Court in Sydney about whether the Family Court had jurisdiction,

   in determining that there was an acceptable reason for the delay: BVG17 at [42] per Collier and Rangiah JJ.

2. In this case CTE22 was self-represented. Being self-represented does not however explain CTE22’s failure to provide affidavit evidence in relation to the explanation for the delay when he was given the opportunity to do so, and in circumstances where he took the opportunity to provide documents, annexed to CTE22’s Affidavit, which deal with the circumstances concerning the engagement of a new accountant (although not when the new accountant was engaged) and the availability of tax and financial information for CTE22, his Wife, B Company and C Company and which are relevant to the merits of the Proposed Appeal.

3. Even taking the explanation for the delay proffered by CTE22 in the Proposed Appeal and in oral submissions at hearing at face value leaves the Court little better informed about matters relevant to the delay, such as:

   (a)what steps were taken to ascertain the correct court in which to file the Proposed Appeal, including where or from whom such information was sought;

   (b)which courts were allegedly approached for information concerning the Proposed Appeal;

   (c)in which court or courts the wrong forms were lodged;

   (d)at which court in City D he could not file;

   (e)when the process of taking steps to file the Proposed Appeal commenced, and whether or not it was commenced before or after the expiry of the appeal period, noting in this regard that the delay is 12 days and that CTE22 asserts that the various steps allegedly taken before the Proposed Appeal was finally filed had taken “almost two weeks”, from which it might be inferred that the process was not commenced until after the expiry of the appeal period, or very close to the expiry thereof;

   (f)when the various steps said to have been taken were taken; and

   (g)the existence of any documents sent to or provided by the courts allegedly approached, including emails, or receipts or rejection notices for documents sought to be lodged, incorrectly lodged, or rejected.

4. CTE22’s explanation is not supported by any evidence, but is rather bare and uninformative assertion, which raises more questions than it answers, and which does not, in the Court’s view, constitute an adequate explanation for the delay in filing the Proposed Appeal.

5. The want of an adequate explanation for the delay weighs against the grant of the Extension of Time Application.

   Prejudice

6. Neither CTE22 nor CTF22 gave evidence of any particular prejudice that they would suffer were the Extension of Time Application to be refused, although it might be inferred that CTE22 would at least assert he would be denied the opportunity to appeal, and with that denial of the opportunity to succeed on the appeal, and, ultimately, to persuade the Tribunal on remitter to alter its assessment. As will become evident from the Court’s consideration of the merits of the Proposed Appeal it has no, or no sufficient, prospect of success, and therefore any such inference in favour of CTE22 ought not to be drawn.

7. The Registrar suffers no prejudice, other than the costs occasioned in responding to the Extension of Time Application and Proposed Appeal, and says that it ought not to be put to the burden and cost of litigation in circumstances where there has been delay and there is a lack of merit in the Proposed Appeal. That submission takes the matter nowhere in circumstances where, by reason of the September 2022 Orders, which were orders proposed by the Registrar, the Extension of Time Application, the Proposed Appeal and the Cross-Appeal were listed for hearing, and heard, together: see Order 1.

8. The Court notes that:

   (a)the mere absence of prejudice is not enough to justify granting the Extension of Time Application: Hunter Valley Developments, FCR at 349 per Wilcox J; and

   (b)if leave is refused, the administrative assessment of child support will continue to be assessed in accordance with the Tribunal Decision for the period 22 April 2021 to the date of a terminating event for the Child.

9. In the above circumstances, the issue of prejudice is neutral in relation to the grant of the Extension of Time Application.

   Public interest in finality of litigation

10. In Luton v Lessels [2002] HCA 13; (2002) 210 CLR 333; (2002) 76 ALJR 635; (2002) 187 ALR 529; (2002) 49 ATR 471 (“Luton”) at [4] per Gleeson CJ (with whom McHugh J agreed at [79]) it was observed (emphasis added) that the principal object of the CS Assessment Act is:

    … to ensure that children receive a proper level of financial support from their parents. To that end, the Act provides for a level of support to be determined in accordance with legislatively fixed standards, and permits carers of children to have the level readily determined without the need to resort to court proceedings.

11. In Davis v Insolvency and Trustee Service Australia [2010] FCAFC 141 (“Davis”) at [2] per Keane CJ, Besanko and Perram JJ the Full Court of the Federal Court said that (emphasis added):

    The laws of the Commonwealth attach significance to the obligation of separated parents of children to provide for their proper financial support. The important features of these laws are a set of provisions by which the liability of parents to pay child support is assessed and another set by which the payments thus assessed to be due are collected…….The Registrar is empowered, on application by a child’s carer, to assess the liability of a parent to pay child support and the process of assessment bears similarities to the way in which income tax is assessed. Once assessed the parent must pay the amount of child support to the child’s carer in accordance with the assessment (s 31 of the Child Support (Assessment) Act 1989 (Cth)).

12. In Hunter & Child Support Registrar (2017) 326 FLR 318; [2017] FamCAFC 259 at [11] per Thackray, Kent and Watts JJ, the Full Court of the then Family Court, having referred to Luton, said that (emphasis added):

    As referenced in the judgments in Luton the principal object of the [Child Support (Assessment) Act 1989 (Cth)] (s 4) is to ensure that children receive a proper level of financial support from their parents. The principal objects of the [Child Support (Registration and Collection) Act 1986 (Cth)] (s 3) include ensuring that children receive from their parents the financial support that the parents are liable to provide; and that periodic amounts payable by parents towards the maintenance of their children are paid on a regular and timely basis.

13. In Dixon v Child Support Registrar [2017] FCCA 1540 (“Dixon”) at [23] per Judge Cassidy the then Federal Circuit Court observed that (emphasis added):

    There can be no area where there is a need for finality that is more obvious than child support. Child support is meant to be paid as maintenance for children and is not something that should be dragged on for years in never-ending litigation. It is in the public interest for parties to have finality in relation to child support given the nature of what the payments are there to do, which is to provide financial support for children.

14. There is a clear and maintainable public interest in there being finality of litigation between parties concerning their respective child support obligations and entitlements. Thus, ordinarily, any delay caused by the grant of an extension of time runs contrary to the principle that that there is a public interest in the finality of litigation, particularly in child support assessment matters. In this case the matter, as with prejudice, the issue goes nowhere, because, by reason of the September 2022 Orders, the Extension of Time Application, the Proposed Appeal and the Cross-Appeal were listed for hearing, and heard, together: see Order 1.

15. In the above circumstances, the issue of public interest in there being finality of litigation is neutral in relation to the grant of the Extension of Time Application.

    Merit of Proposed Appeal

16. This is a case in which, in the Court’s view, it is necessary to examine the question of the merit of the Proposed Appeal at more than an impressionistic level: Katoa at [18] per Kiefel CJ, Gageler, Keane and Gleeson JJ and [47]-[59] per Gordon, Edelman and Steward JJ.

    Question of law

17. An appeal under ss 44AAA of the AAT Act, read with s 44(1) thereof, is limited to an appeal “on a question of law”. The Court’s jurisdiction is only enlivened by a question of law properly raised on an appeal (or in this case, the Proposed Appeal).

18. The term “question of law” was explained in P v Child Support Registrar [2014] FCAFC 98; (2014) 225 FCR 378; (2014) 64 AAR 247 at [27]-[28] per Perram, Perry and Gleeson JJ, as follows:

    27. It is important to emphasise at the outset that the appeal, being instituted under s 44(1) of the AAT Act, is confined to a “question of law”. This does not, of course, mean that the reach of s 44 is limited to questions of law divorced from the need to look at facts: Collins v Administrative Appeals Tribunal [2007] FCAFC 111; (2007) 163 FCR 35 at 49 [55] Allsop J (with whose reasons Lindgren and Emmett JJ agreed). However, the question or questions of law which found the Court’s authority to review an administrative decision under s 44 of the AAT Act should be properly and precisely framed in the notice of appeal in line with the requirements of r 33.12(2)(b) of the Federal Court Rules 2011 (Cth) (“FCA Rules”): Comcare v Etheridge [2006] FCAFC 27; (2006) 149 FCR 522 (Etheridge) at 527 [14] (Branson J); Collins at 49 [55]. So understood, s 44(1) can be seen to respect the proper boundaries of judicial review, being concerned with the legality of administrative decision-making, as opposed to a review of the merits of such decisions.

    28. Thus while, as Mansfield J said in Kowalski v Chief Executive Officer of Medicare Australia [2010] FCA 413; (2010) 185 FCR 42 at 51 [38], some allowance may be given to an unrepresented litigant, this cannot detract from the fact that the jurisdiction of the Court to entertain an appeal under s 44 of the AAT Act is engaged only where a question of law is raised for determination.

19. In considering whether purported questions of law are in fact questions of law, the principles in Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 (“Haritos”) at [62] per Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ, provide guidance. Those principles provide as follows:

    (1) The subject matter of the Court’s jurisdiction under s 44 of the AAT Act is confined to a question or questions of law. The ambit of the appeal is confined to a question or questions of law.

    (2) The statement of the question of law with sufficient precision is a matter of great importance to the efficient and effective hearing and determination of appeals from the Tribunal.

    (3) The Court has jurisdiction to decide whether or not an appeal from the Tribunal is on a question of law. It also has power to grant a party leave to amend a notice of appeal from the Tribunal under s 44.

    (4) Any requirements of drafting precision concerning the form of the question of law do not go to the existence of the jurisdiction conferred on the Court by s 44(3) to hear and determine appeals instituted in the Court in accordance with s 44(1), but to the exercise of that jurisdiction.

    (5) In certain circumstances it may be preferable, as a matter of practice and procedure, to determine whether or not the appeal is on a question of law as part of the hearing of the appeal.

    (6) Whether or not the appeal is on a question of law is to be approached as a matter of substance rather than form.

    (7) A question of law within s 44 is not confined to jurisdictional error but extends to a non-jurisdictional question of law.

    (8) The expression “may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal” in s 44 should not be read as if the words “pure” or “only” qualified “question of law”. Not all so-called “mixed questions of fact and law” stand outside an appeal on a question of law.

    (9)In certain circumstances, a new question of law may be raised on appeal to a Full Court. The exercise of the Court’s discretion will be affected not only by Coulton v Holcombe [1986] HCA 33; 162 CLR 1 considerations, but also by considerations specific to the limited nature of the appeal from the Tribunal on a question of law, for example the consideration referred to by Gummow J in Federal Commissioner of Taxation v Raptis [1989] FCA 557; 89 ATC 4994 that there is difficulty in finding an “error of law” in the failure in the Tribunal to make a finding first urged in this Court.

    (10)Earlier decisions of this Court to the extent to which they hold contrary to these conclusions, especially to conclusions (3), (4), (6) and (8), should not be followed to that extent and are overruled. Those cases include Birdseye v Australian Securities and Investments Commission [2003] FCA 232; 76 ALD 321, Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244, 133 FCR 290, Etheridge, HBF Health Funds and Hussain v Minister for Foreign Affairs [2008] FCAFC 128; 169 FCR 241.

20. More recently, in HGMZ v Secretary, Department of Social Services [2021] FCA 280 at [19]-[20] per Flick J the Federal Court observed as follows:

    [19]Although expressed as an “appeal”, the jurisdiction sought to be invoked by a party appealing from a decision of the Administrative Appeals Tribunal is an application made in the original – and not the appellate – jurisdiction of this Court: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 61-62 per Bowen CJ and Deane J, at 71 per Smithers J; TNT Skypack International (Aus) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178 per Gummow J (“TNT Skypack”).

    [20]And such jurisdiction as is conferred by s 44 of the Administrative Appeals Tribunal Act is a jurisdiction confined to a “question of law”. What constitutes a “question of law” has been canvassed in many decisions of this Court but it is sufficient for present purposes to cite the following summary provided by Dowsett and Gordon JJ (Edmonds J agreeing) in Federal Commissioner of Taxation v Trail Bros Steel & Plastics Pty Ltd [2010] FCAFC 94, (2010) 186 FCR 410 (“Trail Bros Steel”) at 415:

    “[13] … what is “on a question of law” for the purposes of s 44 of the AAT Act has been analysed in many cases and includes:

    1.        Whether the AAT has identified the relevant legal test: …;

    2.        Whether the AAT has applied the correct test: …;

    3.Whether there is any evidence to support a finding of a particular fact: …; and

    4.Whether facts found fall within a statute properly construed: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287.

    That list is by no means exhaustive: …

    Appl’d: Phillips v Inspector-General in Bankruptcy [2013] FCA 552 at [23] per Middleton J. The list of questions identified in Trail Bros Steel, of course, is not an exhaustive list.

21. The two questions of law posed in the Proposed Appeal are questions, but not questions of law. They do, however, raise issues which, when considered with the grounds of the Proposed Appeal, and making due allowance for the fact that CTE22 was self-represented, might give rise to questions of law as discussed below in relation to each of the grounds.

    Ground 1

22. Ground 1 complains that “time was not given to produce relevant financials” even though CTE22 had brought to the attention of the AAT “that business financials were not up to date and a new accountant had been appointed”. Ground 1 can be read in conjunction with the two questions posed as questions of law, but which are not questions of law, which assert, firstly, that a fair and just decision cannot be made on assumptions of income, and, secondly, complains that as “evidence of income” would be “available in the near future why wasn’t time given to produce relevant documentation?”, to give rise to the following questions of law:

    (a)whether CTE22 was denied procedural fairness, alternatively whether the Tribunal acted unreasonably, by the Tribunal not adjourning the review, alternatively not making its decision, until such time as CTE22 provided further financial information?; and

    (b)whether the Tribunal acted upon no evidence, or acted unreasonably, illogically or irrationally upon evidence which it knew was not correct, when making its determination as to CTE22’s 2020-2021 income?

    Procedural fairness

23. In the context of administrative decision-making fairness is not an abstract concept, but one which concerns itself with the avoidance of practical injustice: Re Minister for Immigration and Multicultural Affairs and Indigenous Affairs; Ex Parte Lam [2003] HCA 6; (2003) 214 CLR 1; (2003) 77 ALJR 699; (2003) 195 ALR 502 at [37] per Gleeson CJ. In Minister for Immigration and Border Protection & Anor v SZSSJ & Anor [2016] HCA 29; (2016) 259 CLR 180; (2016) 90 ALJR 901; (2016) 334 ALR 653 at [82]-[83] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ the High Court unanimously observed that (footnotes omitted):

    Second, compliance with an implied condition of procedural fairness requires the repository of a statutory power to adopt a procedure that is reasonable in the circumstances to afford an opportunity to be heard to a person who has an interest apt to be affected by exercise of that power.  The implied condition of procedural fairness is breached, and jurisdictional error thereby occurs, if the procedure adopted so constrains the opportunity of the person to propound his or her case for a favourable exercise of the power as to amount to a "practical injustice".    

    Ordinarily, affording a reasonable opportunity to be heard in the exercise of a statutory power to conduct an inquiry requires that a person whose interest is apt to be affected be put on notice of:  the nature and purpose of the inquiry; the issues to be considered in conducting the inquiry; and the nature and content of information that the repository of power undertaking the inquiry might take into account as a reason for coming to a conclusion adverse to the person. Ordinarily, there is no requirement that the person be notified of information which is in the possession of, or accessible to, the repository but which the repository has chosen not to take into account at all in the conduct of the inquiry.

24. In Sullivan v Department of Transport (1978) 20 ALR 323; (1978) 1 ALD 383 (“Sullivan”); ALR at 343 per Deane J one member of the Full Court of the Federal Court observed that (emphasis in original):

    … it is important to remember that the relevant duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present his case. Neither the Act nor the common law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled.

25. It is pertinent to begin consideration of ground 1 and the issue of procedural fairness by examining what it was that was in issue before the Tribunal, and whether CTE22 was on notice of what was in issue. To begin with what was in issue before the Tribunal can be ascertained by reference to the Tribunal Documents (“TDocs”) provided to the Court under s 46(1)(a) of the AAT Act, and in particular, the decision under review, namely, the October 2021 CSA Decision, which appears at TDocs 11-17.

1. At issue in the October 2021 CSA Decision was an earlier assessment of the “adjusted taxable income” of CTE22”: TDocs 11. The grounds for the review of the earlier assessment included an assertion by CTF22 that CTE22 had “understated his income for many years”: TDocs 12. In making the October 2021 CSA Decision the reviewer:

   (a)had regard to evidence as to:

   (i)the structure of the business operated by CTE22, including the relevant trust structure: TDocs 12-13;

   (ii)the nature of the businesses operated by CTE22: TDocs 13;

   (iii)CTE22’s evidence that his share of the business income for the year was $43,000, and that this was a 50 percent share, the other 50 percent share going to his Wife: TDocs 13;

   (iv)CTE22’s adjusted taxable income for 2018-2019, obtained from Australian Taxation Office records (the reviewer having observed that child support assessments are “generally calculated using the parents’ most recent taxable income”, and further noting that CTE22 had not declared his 2019-2020 or 2020-2021 taxable income): TDocs 13;

   (v)the E Family Trust’s 2018-2019 tax return, including income, expenses and distributions to beneficiaries, being CTE22 and his Wife, who each received $34,856: TDocs 13; and

   (vi)Business Activity Statements for the E Family Trust for 2018-2019 showing (gross) income of $1,005,260: TDocs 13;

   (b)observed that:

   (i)full and frank disclosure was common in the review process, but despite requests to CTE22 to provide “evidence regarding his financial circumstances”, and, at a minimum requiring CTE22 to provide “a copy of his profit and loss statements and balance sheets for his businesses” the requested additional evidence had not been provided: TDocs 13-14;

   (ii)for self-employed parents their taxable income may not be an accurate reflection of their earning capacity or financial resources, because of their capacity to derive additional benefits, other than wages, from their businesses and to alienate income: TDocs 14;

   (iii)CTE22 had not demonstrated that he was being paid adequately for the work being performed on behalf of the Business, and “[b]ased on the information available…[was] satisfied it is fair to conclude…[CTE22] is alienating income”: TDocs 14; and

   (c)assessed CTE22’s taxable income for child support purposes at $120,631 per annum, being 80 per cent of income available after applying 85 per cent for expenses to the E Family Trust’s declared 2018-2019 business income of $1,005,260 (that is 80 per cent of $150,789), with the remaining 20 per cent being “an appropriate amount to apportion to” the Wife “assuming she acts in an administrative capacity within the business”: TDocs 14-15.

2. At the Tribunal Directions Hearing, held on 1 February 2022, almost four months after the October 2021 CSA Decision, and more than three months before the Tribunal Hearing:

   (a)CTF22 stated that the CSA had calculated the income of CTE22 based on out-of-date information and wanted a more current assessment by the Tribunal; and

   (b)CTE22:

   (i)stated that the CSA had determined his income based on inaccurate information and arrived at an incorrect amount; and

   (ii)claimed that the proportion of income from his business had been unfairly split between him and his Wife and should have been shared equally: Tribunal Decision at [11].

3. At the Tribunal Hearing on 12 May 2022:

   (a)the Tribunal agreed to allow CTE22 to provide additional financial information, which was received later the same day: Tribunal Decision at [10]. That information was profit and loss statements for B Company for 2019-2020 and 2020-2021, probably drafts: Tribunal Decision at [43], the former showing a net profit of $143,917 and the latter a loss of $4,076.39: TDocs B30-33;

   (b)CTE22 said he was unable to provide the Tribunal with his 2019-2020 and 2020-2021 individual tax returns in accordance with directions given by the Tribunal, as neither had been filed with the ATO: Tribunal Decision at [36];

   (c)CTE22 said he was unable to provide the tax returns for the E Family Trust or the accounts for B Company for 2019-2020 and 2020-2021 and said that he had recently swapped accountants, and that the tax returns “were still being completed”: Tribunal Decision at [39]; and

   (d)CTE22 said that C Company had only been operating since mid-2020 and that he did not have financial information available for it: Tribunal Decision at [39].

4. The Court notes that almost six weeks then elapsed between the Tribunal Hearing and the Tribunal Decision being made on 23 June 2022.

5. In circumstances where:

   (a)CTE22 was on notice of the issues by reason of the matters set out in the October 2021 CSA Decision: see [48] above, and in particular that child support assessments were generally based on a party’s most recent taxable income, and therefore of the need to provide the Tribunal with that information;

   (b)the Tribunal Directions Hearing clarified the issue of concerns, and it was clear that CTE22’s income, and that of his Wife, were in issue: Tribunal Decision at [11];

   (c)hundreds of pages of financial information (mainly bank statements) had been provided by CTE22 prior to the Tribunal Hearing: TDocs generally; and

   (d)CTE22 was allowed to, and did, provide further financial information post the Tribunal Hearing: Tribunal Decision at [10];

   (e)a further period of almost six weeks elapsed between the time the Tribunal Hearing and time the Tribunal Decision was made,

   CTE22 plainly had, and was given, the opportunity, in the sense referred to in SZSSJ at [82]-[83] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ, to provide to the Tribunal financial information, including up-to-date information as to his taxable income. It is telling that some seven months elapsed between the October 2021 CSA Decision and the Tribunal Hearing. Apart from the Tribunal’s record of the explanation given to it by CTE22 that he had recently swapped accountants and that tax returns for the E Family Trust and B Company were still being completed: Tribunal Decision at [39], there is no evidence as to why, in May 2022, up-to-date information as to CTE22’s taxable income for the 2019-2020 and 2020-2021 financial years was not available. Nor is there any evidence as to what steps, if any, were taken during this, and subsequent, periods to have up-to-date information as to CTE22’s taxable income for the 2019-2020 and 2020-2021 financial years prepared. Having been given the opportunity referred to it was not for the Tribunal to ensure that CTE22 made best use of that opportunity: Sullivan, ALR at 343 per Deane J.

6. Having regard to the above circumstances CTE22 was given sufficient opportunity to put financial documentation before the Tribunal at any time up to the time of the Tribunal Hearing and prior to the Tribunal Decision being made, and there was accordingly no practical injustice in the process adopted by the Tribunal, and no denial of procedural fairness.

   Unreasonableness, irrationality, illogicality

7. In certain circumstances unreasonableness, and more correctly, legal unreasonableness, may constitute jurisdictional error, which is an error of law: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 (“Li”) at [63]-[76] per Hayne, Kiefel and Bell JJ.

8. Legal unreasonableness is fact dependent, and each case must be examined and determined in light of the individual circumstances and evidence in a proceeding: Djokovic vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; (2022) 397 ALR 1; [2022] FCAFC 3 (“Djokovic”) at [30]-[33] per Allsop CJ, Besanko and O’Callaghan JJ (and cases there cited).

9. The relevant principles in relation to legal unreasonableness were conveniently summarised by the Federal Court in Minister for Immigration and Border Protection vPandey [2014] FCA 640; (2014) 143 ALD 640 at [41] per Wigney J and included the following:

   (a) The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: [Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 ; 139 ALD 181 ; 297 ALR 225 ; [2013] HCA 18 (“Li”)] at [29], [63], [88]; [Minister for Immigration and Border Protection v Singh (2014) 308 ALR 280 ; 139 ALD 50 ; [2014] FCAFC 1 (“Singh”)] at [43].

   (b) Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].

   (c) Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].

   (d) In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].

   (e) Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].

   (f) The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].

   (g)       …

   (h)      …

   (i)        …

   (j) Properly applied, a standard of legal reasonableness does not involve substituting a Court's view as to how a discretion should be exercised for that of a decision-maker: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].

10. Fact-finding can be impugned where the factual determination is illogical, irrational or lacking a basis in a finding or inferences supported on logical grounds: SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1; (2012) 289 ALR 463; (2012) 127 ALD 1 at [52] per McKerracher J. Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367; (2010) 84 ALJR 369; (2010) 115 ALD 248 (“SZMDS”) sets a very high threshold for findings of irrationality or illogicality, and that reasonable minds might differ as to the decision or finding to be made on the basis of the evidence is insufficient to establish irrationality or illogicality: SZMDS at [131] per Crennan and Bell JJ.

11. There can be no doubt that the failure to adjourn a proceeding, or wait for some further evidence to come in, can, in some circumstances, constitute unreasonableness: Li.

12. What it is that might be inferred to be said to be unreasonable in this matter is the Tribunal’s failure to adjourn the Tribunal Hearing, or to wait for further financial information to be provided to the Tribunal by CTE22, before making the Tribunal Decision. In that regard CTE22 asserts that he brought the Tribunal’s attention to the fact that:

    (a)the financial information provided by CTE22 was not up to date; and

    (b)he had appointed a new accountant.

13. CTE22 was given the opportunity in these proceedings to file evidence, and filed the CTE22 Affidavit, which affirms no facts, but merely attaches a series of post-Tribunal Hearing documents. In particular, the Court notes that CTE22 was specifically given the opportunity, by Order 8 of the September 2022 Orders, to file a transcript of the Tribunal Hearing. CTE22 did not do so. There is, therefore, no specific evidence of precisely what was said or done before the Tribunal, save for what the Tribunal itself says in the Tribunal Decision. It is not now open for this Court to speculate as to what occurred before the Tribunal, and the best evidence of what occurred before the Tribunal is what is said in the Tribunal Decision: NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 (“NAOA”) at [24] per Beaumont, Merkel and Hely JJ; SZVHC v Minister for Immigration and Border Protection [2016] FCA 1324 (“SZVHC”) at [56] per Mr J J; Brar v Minister for Immigration and Border Protection (No 2) [2017] FCCA 1538; (2017) 322 FLR 81 (“Brar (No 2)”) at [15] per Judge Lucev. In this regard the Tribunal said at Tribunal Decision at [39] that at the start of the Tribunal Hearing CTE22 said that:

    (a)he was unable to provide the tax returns for the E Family Trust or the accounts for B Company for 2019-2020 and 2020-2021;

    (b)said that he had recently swapped accountants, and

    (c)the tax returns “were still being completed”.

14. The Tribunal did grant additional time to CTE22 to file further financial information and CTE22 did so, on the day of, but after the Tribunal Hearing: Tribunal Decision at [10] and [43], but otherwise failed to file any further financial information prior to the Tribunal Decision being made. The financial information filed on the day of, but after the Tribunal Hearing, was, contrary to what is asserted by CTE22 in ground 1, up-to-date financial information, being profit and loss statements for B Company for 2019-2020 and 2020-2021.

15. CTE22 was on notice by reason of the October 2021 CSA Decision that child support assessments were based on the most recent taxable income information for the parents: see TDocs 11, and had had more than seven months from the time of the October 2021 CSA Decision to the time of the Tribunal Hearing to get the relevant financial information from his accountants. The fact that the B Company profit and loss statements had been prepared and were able to be provided to the Tribunal after the Tribunal Hearing would indicate that someone, whether the old accountants or the new accountants, had done some work in preparing the relevant financial information. Aside, however, from the fact that new accountants had been appointed “recently” (whatever that may mean) it is not evident that there was any evidence or material before the Tribunal as to why the financial information (including tax returns) for 2019-2020 and 2020-2021 were not available in May 2022, or, critically, how long it would be before the relevant financial information would be prepared and available. In respect of the latter issue it is relevant to observe that the Mr H Letter, written by a director of the new accountants, shows that it was at least another six months before the up-to-date financial information was prepared and available: CTE22 Affidavit, Annexure A.

16. The state of the evidence and material before the Tribunal at the time of the Tribunal Hearing was not such as to provide any reasonable basis for adjourning the Tribunal Hearing or waiting until further financial information was provided to make the Tribunal Decision. In any event, as previously observed, the Tribunal did permit the giving of further financial information to the Tribunal post the Tribunal hearing, and CTE22 did provide further information later on the day of the Tribunal Hearing, but nothing further in the almost six weeks between then and the handing down of the Tribunal Decision.

17. The reasonableness of the Tribunal’s decision to make the Tribunal Decision when it did, and in the circumstances in which it did, is reinforced by the nature of the statutory task which it was undertaking, namely, a child support assessment. The law requires finality in this respect, and that children receive a proper level of financial support from their parents, and that assessed child support must be paid, and be paid on a regular and timely basis, and not be dragged out in a never-ending process of litigation: Luton at [4] per Gleeson CJ; Davis at [2] per Keane CJ, Besanko and Perram JJ; Hunter at [11] per Thackray, Kent and Watts JJ; Dixon at [23] per Judge Cassidy. Further, as this Court observed in Carrell v Mayne [2021] FedCFamC2G 162 at [94]-[98] per Judge Brown:

    (a)the individuals best placed to provide evidence regarding their respective financial circumstances are the parties themselves;

    (b)complexity does not abrogate the Tribunal’s obligation to, as best it can, to make the findings it is required to make, and nor does it obviate the parties responsibility to provide comprehensive and understandable information about their financial affairs;

    (c)the onus remains on the challenging party to establish before the Tribunal that the decision from which departure is sought is not reflective of their financial circumstances, and citing  Thomas & Harry (SSAT Appeal) [2010] FMCAfam 310 (“Thomas”) at [26] per Slack FM, that the parties are subject to an immutable obligation to make full disclosure of all relevant documents that can assist the enquiry to make a determination and that includes disclosing documents (subject to a claim in privilege) that may have an adverse impact on their case;

    (d)that in Humphries at [32] per Slack FM the then Federal Magistrates Court was dealing with an appellant in a child support review hearing and had said that the appellant was well aware that in the hearing the essential issue and controversy was his income and earning capacity and that he had ample opportunity over the course of the way the matter was being conducted to produce cogent and concise evidence about his financial circumstances and in particular about his income;

    (e)where it is the case that information and financial records cannot be “reasonably and readily understood and examined”, and where a person’s financial affairs are a “significant subject of enquiry before the Tribunal”: citing Humphries at [27] and [28] respectively per Slack FM, the Tribunal is granted some discretion to make inferences from other sources; and

    (f)the real issue is whether or not there is sufficient evidentiary foundation to draw an inference as to income or earning capacity, and the failure to make full and frank disclosure or provide evidence properly explaining financial affairs allows the Court to accept what evidence there may be with more confidence than would otherwise have been the case, citing: Thomas at [33] per Slack FM citing S & D [2005] FMCAfam 446 at [65] per Riethmuller FM.

18. The Tribunal was dealing here with an assessment period commencing 22 April 2021, that is a period commencing more than 12 months prior to the Tribunal Hearing, and there was an obligation arising from the purpose of the statutory task to proceed with the matter with a reasonable degree of expedition, and not to wait for an indeterminate period of time for CTE222 to put his financial and accounting affairs in order. CTE22 had been on notice for at least seven months prior to the Tribunal Hearing of the necessity to provide further financial information. Thus, it was reasonable (or not unreasonable) for the Tribunal to make the Tribunal Decision when it did, and in the circumstances in which it did.

19. It is also necessary to consider in the context of ground 1, whether the Tribunal acted illogically  or irrationally in not adjourning the Tribunal hearing, or failing to wait to make the Tribunal Decision, until further financial information had been provided by CTE22.

1. If the Tribunal acts in a manner which is legally illogical or irrational that may amount to unreasonableness, and therefore constitute an error of law: SZMDS at [130]-[131] per Crennan and Bell JJ. It is necessary that “extreme” illogicality be demonstrated, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99; (2013) 302 ALR 572; (2013) 136 ALD 41 at [148] per Mr Hon J; SZMDS at [131] and [135] per Crennan and Bell JJ; CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496; (2016) 70 AAR 413 at [60] per McKerracher, Griffiths and Rangiah JJ (“CQG15”). Mere disagreement is not a basis for establishing illogicality or irrationality in a Tribunal decision: CQG15 at [61] per McKerracher, Griffiths and Rangiah JJ.

2. The financial information the Tribunal acted upon was the most current financial information then available to it, some of which (namely, the B Company profit and loss statements) had been provided on the day of the Tribunal Hearing in respect of the most recent completed financial year (2020-2021), whilst other financial information provided by CTE22 was two to three years old. The more recently provided information hardly bears the “not up to date” characterisation referred to in ground 1. Moreover, the Tribunal found, probably correctly in all the circumstances, that CTE22 had not made full and proper disclosure. And, with otherwise vague indeterminate statements from CTE22 about the state of preparedness of further financial information and no further financial information provided to it, it was both logical and rational, given the nature of the Tribunal’s statutory task that, almost six weeks after the Tribunal Hearing and the provision of the B Company profit and loss statements by CTE22, that the Tribunal would make the Tribunal Decision.

3. There is also no doubt, on the authorities cited at [32]-[35] above, that other Tribunals have made decisions in similar circumstances on partial, incomplete, or out-of-date information, where that information was the best information available to the Tribunal in the circumstances. Even if the Tribunal differently constituted might have made a different decision concerning whether to wait for further financial information, or adjourn until further financial information was provided, that is insufficient to demonstrate illogicality or irrationality on the part of the Tribunal in this matter. The Tribunal did not act illogically or irrationally in acting on the evidence and materials it had before it to make the Tribunal Decision when it did: indeed, it appears to have acted in a relatively orthodox manner in the circumstances. Thus, it was not illogical or irrational for the Tribunal to make the Tribunal Decision when it did, and in the circumstances in which it did.

   No evidence

4. Read in conjunction with questions 1 and 2 in the Proposed Appeal, and in particular the references to a decision made based upon assumptions about income and the future availability of evidence about income, ground 1 might be interpreted as asserting an error of law because there was no evidence available on which to assess CTE22’s income for the purposes of a child support assessment.

5. A complete failure to consider relevant evidence may constitute an error of law: Minister for Immigration & Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 36 ALD 547. The identification of even a skerrick of evidence will, however, mean that an allegation premised on a “no evidence” basis will fail: MZZUG v Minister for Immigration and Border Protection [2015] FCA 1151 at [59] per Murphy J (“MZZUG”).

6. There was, however, no such failure in this case. The Tribunal acted on the evidence of financial information before it, which included financial information for the 2018-2019 financial year, CTE22’s statement of financial affairs, and the 2019-2020 and 2020-2021 profit and loss statements for B Company. There was adequate evidence - and certainly more than a skerrick of evidence - upon which the Tribunal could, and did, draw conclusions as to CTE22’s income for the purposes of a child support assessment. It follows that there is no basis on which a no evidence ground could succeed.

   Conclusion – ground 1

7. For the reasons set out above ground 1 has no merit, either because it does not raise a question of law, or if it does raise a question or questions of law, that question or those questions are not to be answered in favour of CTE22.

   Ground 2

8. Ground 2 appears to relate to that part of the Tribunal Decision at [44] where the Tribunal observed as follows:

   …there was an amount of $70,342 for administration wages which is a role [CTE22’s] wife is effectively performing in addition to marketing activities.

9. Ground 2 does not on its face raise a question of law, but rather a question of fact as to the basis for attributing a sum of money shown as administrative wages in the B Company accounts: indeed the ground says as much by asserting that the “[a]dministrative wages” in issue were “in fact for admin employees”. 

10. The distinction between a question of law being dealt with by the Court, and questions of fact relating to the merits of a case being dealt with by the Tribunal is important: [s]uch “distribution of function is critical to the correct operation of the administrative review process”: Repatriation Commission v Owens (1996) 70 ALJR 904 at 904 per Brennan CJ, Gaudron and Gummow JJ. It is not within the jurisdiction of the Court to review the factual merits of the Tribunal Decision, or to determine the child support assessment: as the Full Court of the Federal Court observed in Haritos at [201] per Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ:

    As Brennan J said in Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1 at 36:

    “The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.”

    The merits, in our view, are the zone of discretion to which Gleeson CJ, Gummow, Kirby and Hayne JJ referred in City of Enfield v Development Assessment Commission [2000] HCA 5; 199 CLR 135 at [43]. It may, however, be the case that in exercising its jurisdiction under s 44 of the AAT Act the Court has to consider how the Tribunal has gone about its fact-finding and the choices that it has made in order for the Court to assess, in deciding a question or questions of law, whether the Tribunal has stayed within the zone of discretion. For this purpose the Court does not consider whether the Tribunal should have made a particular finding of fact but whether it may lawfully have done so.

11. On the above basis ground 2 cannot succeed as it does not raise a question of law.

12. If, contrary to the conclusion in the previous paragraph, on a very liberal interpretation of ground 2 read in conjunction with question 1, it might be said to give rise to a question of law because there was no evidence available on which to draw conclusions about the Wife’s income and activities to enable an assessment to be made of CTE22’s income for the purposes of a child support assessment, then the Court considers that issue below.

13. The law as to a no evidence ground is set out at [70]-[71] above.

14. In relation to the Tribunal’s finding that administration wages related to the Wife’s income, and, in effect, that the Wife was performing administrative duties, the evidentiary basis for this finding is in the Tribunal Decision at [32] where the Tribunal set out what CTE22 told it as follows:

    [CTE22] said his wife played an important role in the business…[CTE22] said she undertook all the marketing as that was her background but also performed other tasks including scheduling work, ordering parts, payroll and accounts.

15. It is also, once again, a matter in respect of which there is no specific evidence of precisely what was said to the Tribunal, save for what the Tribunal itself says in the Tribunal Decision. It is not now open for this Court to speculate as to what occurred before the Tribunal, and the best evidence of what occurred before the Tribunal is, once again, what is said in the Tribunal Decision: NAOA at [24] per Beaumont, Merkel and Hely JJ; SZVHC at [56] per Mr J J; Brar (No 2) at [15] per Judge Lucev. The Court also observes that there does not appear to be anything in the TDocs contrary to the Tribunal’s finding at [32] of the Tribunal Decision. There was therefore adequate evidence - and certainly more than a skerrick of evidence - upon which the Tribunal could, and did, draw conclusions as to the nature of the Wife’s duties. It follows that, on the basis of what was before the Tribunal, there is no basis on which a no evidence ground about Tribunal’s finding concerning the Wife’s income and activities to enable it to assess CTE22’s income for the purposes of a child support assessment could succeed.

16. Finally, although the Court’s findings above are sufficient to dispose of ground 2, it is worth observing that the Mr J Letter in CTE22’s Affidavit, provides evidence of the Wife’s administrative duties as follows:

    … [The Wife] is very much running the administrative side of the business. Overseeing all human resource issues, onboarding and offboarding staff, payroll, training new office staff, coordinating all business and financial decisions, coordinating with the accountant  and communicating with the ATO.

    and, therefore, had it been before the Tribunal, it would have been evidence consistent with the Tribunal’s findings.

    Conclusion – ground 2

17. For the reasons set out above ground 2 has no merit, either because it does not raise a question of law, or if it does raise a question of law, that question is not to be answered in favour of CTE22.

    Ground 3

18. Ground 3 takes issue with the Tribunal’s finding as to the workload split between CTE22 and his Wife in the B Company business. The relevant finding in the Tribunal Decision at [48] was as follows:

    …While [CTE22 and the Wife] are equal shareholders in [B Company] it is the skills of…[CTE22] upon which the business is based…[CTE22] is the primary business activity. While…[CTE22’s] wife is important in ensuring the ongoing operations of [B Company] it is appropriate…[CTE22] receives a larger proportion of income generated by the business. In light of the role performed by…[CTE22’s] wife the Tribunal considers her share of business income should more appropriately be 30 per cent.

19. Ground 3 does not on its face raise a question of law, but rather a question of fact as to the basis for determining the share of business income to be attributed to CTE22 and to the Wife, and on that basis ground 3 cannot succeed as it does not raise a question of law.

20. Ground 3 read in conjunction with question 1, might, again on a very liberal interpretation, be said to give rise to a question of law on the basis that there was no consideration of, or a failure to consider, a relevant issue, namely the workload split between CTE22 and his Wife in the B Company business. But, as the Tribunal Decision demonstrates, prior to making the finding at [48] in the Tribunal Decision, and set out at [84] above, the Tribunal considered CTE22’s evidence as to the operation of the business and the roles which he and his Wife undertook within the business. In particular, the Tribunal:

    (a)noted their respective 50 percent shareholdings in F Pty Ltd (the corporate trustee for the E Family Trust): Tribunal Decision at [32];

    (b)noted that CTE22 told the Tribunal that “his [W]ife is a 50 per cent shareholder in B Company…and so is entitled to receive 50 per cent of net business income:”: Tribunal Decision at [48];

    (c)set out CTE22’s evidence as to the “important role in the business” played by his Wife, and, importantly, the nature of the duties she performed including “all the marketing” and “other tasks including scheduling work, ordering parts, payroll and accounts”: Tribunal Decision at [32], and accepted that the Wife’s role was “important in ensuring the ongoing operations of B Company”: Tribunal Decision at [48];

    (d)had regard to the fact that B Company’s primary business activity was sales, that CTE22 was a tradesperson, and it was those skills upon which the business was based, and that it was therefore appropriate that the Wife be attributed a lesser share of the business’ income: Tribunal Decision at [48].

21. Ground 3 fails on the facts because the Tribunal did consider the duties and workload of each of CTE22 and his Wife in relation to the B Company business. Moreover, there does not appear to have been before the Tribunal a claim by CTE22, or evidence from CTE22, about workload split, as opposed to share holdings in the corporate trustee for the family trust which traded as B Company which were equally split at 50 per cent each. Further, in the absence of any specific evidence as to the workload split between CTE22 and his Wife, the Tribunal’s attribution of shares in the business income based on the relevance of skills to the primary business activity was both logical and rational, and therefore not one at which no reasonable decision maker could have arrived. Accordingly, the finding as to the shares of attributed business income was not a finding which could be considered unreasonable, illogical or irrational in an SZMDS or CQG15 sense. 

22. Insofar as the Mr J Letter attached to CTE22’s Affidavit purports to provide evidence that CTE22 and his Wife:

    (a)“work in a very valuable relationship”;

    (b)“both have skills to bring to their business”

    (c)“work together”; and

    (d)“are very much a 50/50 partnership”,

    that particular evidence was not before the Tribunal, but is not, in any event, inconsistent with the evidence that was before the Tribunal set out at [55] above.

23. Ultimately, the Tribunal’s attribution of a share of business income was:

    (a)a factual assessment for the Tribunal to make on the evidence before it, and was therefore not a question of law susceptible to review by this Court: Haritos at [201] per Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ; and

    (b)not, for the reasons set out at [87] above, the subject of any legal error.

    Conclusion – ground 3

24. For the reasons set out above ground 3 has no merit, either because it does not raise a question of law, or if it does raise a question or questions of law, that question is not to be answered in favour of CTE22.

    Conclusion – merit of Proposed Appeal

25. Having regard to the Court’s conclusions in relation to grounds 1, 2 and 3 of the Proposed Appeal the Proposed Appeal has no merit, and no, or no sufficient, prospect of success. This conclusion weighs, significantly, against the granting of the Extension of Time Application.

    Conclusion – Extension of Time Application

26. With respect to the factors considered in relation to the Extension of Time Application the Court has concluded that:

    (a)the length of delay is not significant, and does not weigh against the grant of the Extension of Time Application;

    (b)the want of an adequate explanation for the delay weighs against the grant of the Extension of Time Application;

    (c)the issue of prejudice is neutral in relation to the grant of the Extension of Time Application;

    (d)the issue of public interest in there being finality of litigation is neutral in relation to the grant of the Extension of Time Application; and

    (e)the Proposed Appeal has no merit, and no, or no sufficient, prospect of success, and that weighs, significantly, against the grant of the Extension of Time Application

27. Having regard to the want of an adequate explanation for the delay and the lack of prospects of success of the Proposed Appeal the Court would, on balance, have found that it is not appropriate to grant the Extension of Time Application, but in any event, in circumstances where the Court has concluded, and is therefore satisfied that, the Proposed Appeal has no merit, and no, or no sufficient, prospect of success, it is not appropriate to grant the Extension of Time Application: Hunter Valley Developments, FCR at 348-349 per Wilcox J; Hamden at [36] per Besanko J; Somer at [9] and [60] per Judge Jarrett; MZZIV at [6] per Mortimer J. It follows that there will be an order dismissing the Extension of Time Application.

    CROSS-APPEAL

28. CTF22 filed the Cross-Appeal in relation to the Proposed Appeal. Although the Extension of Time Application has been dismissed, and there is therefore, no appeal proper, it is nevertheless prudent to briefly address the Cross-Appeal.

    Question of law

    Question 1

29. Question 1 concerns the Tribunal Decision at [67]-[70] where the Tribunal decided to limit the period of departure determination so that it commenced from 22 April 2021, being the date of CTF22’s application, rather than commencing on a date falling eighteen months prior, being from 22 October 2019. In relation thereto: 

    (a)the length of any departure determination, as well as any decision to backdate, are both matters falling within the exercise of discretion by the Tribunal; and

    (b)the Tribunal Decision was consistent with CTF22’s evidence, and it was open to the Tribunal to find that “there was nothing preventing … [CTF22] from making her application sooner” and it was “just and equitable to commence the departure determination from 22 April 2021 and not an earlier date”: Tribunal Decision at [70].

30. Question 1 is a complaint about a question of fact and does not pose a question of law for consideration by the Court, and no amount of interpretation would result in a question of law emerging from its terms.

    Question 2

31. Question 2 is no more than a submission in response to the Proposed Appeal and does not pose a question of law for consideration by the Court.

    Question 3

32. Question 3 is again no more than a submission which seeks that certain records be “dismissed”. The records concerned are academic records for CTF22 which appear in the TDocs. This submission does not, as such, pose a question of law for consideration by the Court.

    Conclusion on Cross-Appeal

33. The questions posed in the Cross-Appeal are not questions of law. As the questions are not questions of law they are not within the Court’s jurisdiction to determine: Haritos at [201] per Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ. It follows that the Cross-Appeal must be dismissed.

    Merits of the Cross Appeal

34. Given the conclusion expressed by the Court at [99] above it is strictly unnecessary to determine the merits of the Cross Appeal. It is convenient to observe, however, that if it were necessary to determine the merits of the Cross Appeal the Court would find that:

    (a)both grounds 1 and 2 are submissions in response to the Proposed Appeal;

    (b)any relief intended to be sought by CTF22 by an application for leave under s 111 of the CS Assessment Act must be brought by way of a separate application, supported by evidence going to the matters raised in s 112(4) of the CS Assessment Act;

    (c)an application for leave is a different cause of action to the Proposed Appeal and Cross Appeal, and involves different parties (excluding the Registrar), and there are different avenues of appeal from the decision made in each: Manchester & Manchester and Ors (SSAT Appeal) [2011] FMCAfam 1215 at [13] per Halligan FM; and

    (d)similar issues arise in respect of the application for enforcement of the child support liability. The liability is collectable by the Registrar. Notice was not provided to the Registrar of CTF22’s intention to seek such an order, as required by s 113A of the CSCollection Act, and therefore CTF22 cannot seek such relief in these proceedings,

    and the Cross Appeal would accordingly be dismissed.

    CONCLUSION AND ORDERS

1. The Court has concluded that:

   (a)the Extension of Time Application is to be dismissed; and

   (b)the Cross Appeal is to be dismissed.

2. The Court will hear the parties as to costs.

I certify that the preceding one hundred and two (102) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev.

Associate:

Dated:       3 November 2023