CXW22 v CXX22
[2023] FedCFamC2G 580
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CXW22 v CXX22 [2023] FedCFamC2G 580
File number: ADG 217 of 2022 Judgment of: JUDGE BROWN Date of judgment: 7 July 2023 Catchwords: CHILD SUPPORT – Administrative law – application for Judicial Review – appeal from the Administrative Appeals Tribunal – nature of a Judicial Review – characterisation of prescribed non-agency payments – appeal based on assertion that AAT exercised discretion on inadequate basis – failed to follow policy – failed to give adequate reasons – relevant decision characterised as legally unreasonable – where email correspondence passed between the parties stating the father will pay private school fees and assessed child support – where property settlement final orders contained a notation to that effect – where father later claimed these as non-agency payments – whether the discretionary decision of the Registrar should be set aside – matters to be considered – appeal dismissed with costs Legislation: Acts Interpretation Act 1901 (Cth) s 13
Administrative Appeals Tribunal Act 1975 (Cth) ss 3, 44AAA, 46
Child Support (Assessment) Act 1989 (Cth) ss 4(1), 4(2), 5(2), 100
Child Support (Registration & Collection) Act 1988 (Cth) Pts V, VIIIA Div 2, ss 3, 71A, 71C, 71D, 105
Child Support Amendment Act 1998 (Cth)
Family Law Act 1975 (Cth) s 117
Federal Circuit & Family Court of Australia Act 2021 (Cth) s 7, 214
Federal Circuit Court of Australia Act 1999 (Cth) s 79
Federal Circuit & Family Court of Australia (Family Law) Rules 2021 r 1.13
Federal Circuit & Family Court of Australia (Division 2) (General Federal Law) Rules 2021 Pt 1, Sch 2, r 22.02, 22.09
Child Support (Registration & Collection) Regulations 2018 Regulation 19
Cases cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27
Apthorpe v Repatriation Commission (1987) 13 ALD 656
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446
Baldwin & Bartlett & Anor [2017] FCCA 928
Child Support Registrar & Crabbe and Anor [2014] FamCAFC 10
Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprise Pty Ltd (1993) 43 FCR 280
Htun v Minister for Immigration & Multicultural Affairs (2001) 233 FCR 136
In the Marriage ofGyselman (1992) 15 Fam LR 219
Latoudis v Casey (1990) 170 CLR 534
LDME & JMA (SSAT Appeal) (2007) 38 Fam LR 132
Maag & Maag (Child Support) [2020] AATA 4779
Maple v Niu & Anor (No 2) [2018] FCCA 26
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Border Protection v Stretton (2016) 237 FCR 1
Minister for Immigration & Border Protection v SZVFW (2018) 264 CLR 541
Minister for Immigration & Citizenship v Li (2013) 297 ALR 225
Minister for Immigration & Ethnic Affairs v Wu Shan Ling [1996] 185 CLR 259
Minister for Immigration & Multicultural Affairs v Al Miahi (2001) 65 ALD 141
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Oberlin & Infeld (2021) FLC 94-017
R v A2 [2019] HCA 35
Re Kirby; Ex Parte Boilermakers’ Society of Australia (1956) 94 CLR 254
Savery and Savery (1990) FLC 92-131
Division: Division 2 General Federal Law Number of paragraphs: 132 Date of hearing: 10 May 2023 Place: Adelaide Counsel for the Applicant: Mr O’Dea Solicitor for the Applicant: O’Dea Lawyers First Respondent: In person Counsel for the Second Respondents Ms Whittemore Solicitor for the Second Respondent: Sparke Helmore Lawyers ORDERS
ADG 217 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CXW22
Applicant
AND: CXX22
First Respondent
CHILD SUPPORT REGISTRAR
Second Respondent
order made by:
JUDGE BROWN
DATE OF ORDER:
7 July 2023
THE COURT ORDERS THAT:
1.The Notice of Appeal (Child Support) filed 25 August 2022 is dismissed.
2.The applicant pay the second respondent’s costs fixed in the sum of TWO THOUSAND AND FIVE HUNDRED DOLLARS ($2,500.00).
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 BROWN:
INTRODUCTION
This is an appeal from a decision of the Administrative Appeals Tribunal (in its Social Services & Child Support Division).[1] It concerns a decision of the Tribunal made on 19 July 2022. The applicant seeks a judicial review of this decision pursuant to the provisions of the Administrative Appeals Tribunal Act 1975 (Cth).[2]
[1] Hereinafter referred to as “the AAT” or “the Tribunal”.
[2] Hereinafter referred to as “the AAT Act”.
The decision under review set aside an earlier decision of a delegate of the Registrar of the Child Support Agency[3] to disallow an objection made by the delegate crediting a sum of $10,897.00 on the basis that the sum in question represented a prescribed non-agency payment, with the effect that it was taken to form a payment of child support and, as such, could be set off against the amount as calculated under the applicable child support formula.
[3] Hereinafter referred to as “the CSA” or “the Agency”.
There is no dispute that the sum in question is made up of three discrete sums of $4,015.50; $3,441.00; and $3,440.50; which were paid on 16 February 2021; 18 May 2021; and 9 August 2021; in respect of private school fees for the applicant’s and the first respondent’s three children, who at relevant times attended XXX XXX College.
The central evidentiary issue coming before firstly, the delegate of the CSA and secondly, before the Tribunal was whether the applicant and the first respondent had agreed that the applicant’s contribution of one half of the children’s private school fees should be credited against his liability for child support or whether the payments should be so considered by the Agency itself as a consequence of other legislative and regulatory considerations.
In the relevant jargon, such payments are referred to as non-agency payments. They take two forms – those that the parents concerned agree should be regarded as being child support and those in which the Agency assesses them as such. In general terms, they represent monies paid by a parent, to a third party, which form a benefit for a child of that parent, which can be legally set off against that parent’s liability for child support payable to the other of the child’s parent.
The legislative provisions applicable to whether such sums should or should not be credited against child support assessed to be paid by a liable parent are contained in Part V Division 2 of the Child Support (Registration & Collection) Act 1988 (Cth).[4]
[4] Hereinafter referred to as “the Collection Act”.
At the outset, it needs to be emphasised that this Court is not holding a full merits review of this decision, in which it is authorised to recanvas the evidence available before both the delegate and the Tribunal and make its own findings of fact.
Essentially, the task set for the Court, by the Legislature, on the judicial review of a decision of the AAT concerning child support, is not to conduct a re-hearing of the evidence concerned, which if the Court takes a different view of that evidence, would authorise it to substitute its own view for that of the Tribunal.
Rather the Court’s authority to intervene arises only if it can detect a legal error in the manner in which the relevant decision-maker has exercised the authority conferred upon it. In the jargon of lawyers, this is referred to as a jurisdictional error. This is clear from the provisions of section 44AAA of the AAT Act.
BACKGROUND
The applicant[5] is the father of the three relevant children. The first respondent is the children’s mother.[6] The second respondent is the Registrar of the Child Support Agency[7] who has a statutory right to take part in these proceedings.[8]
[5] Hereinafter referred to as “the applicant” or “the father”.
[6] Hereinafter referred to as the “first respondent or “the mother”.
[7] Hereinafter referred to as the “second respondent” or “the Registrar”.
[8] See Federal Circuit & Family Court of Australia (Family Law) Rules 2021 at rule 1.13
It would appear to be the case that the mother and father have been separated for a significant period of time and were involved in proceedings before Division 1 of the Federal Circuit and Family Court of Australia in respect of issues to do with the division of their marital property, as well as arrangements for the care of the three children concerned.
Ultimately the mother and father, who were each legally represented, were able to agree on a raft of final orders dealing with parenting arrangements and property matters, which were made, with the consent of each, by Justice Mead on 20 September 2021.
The orders made on 20 September 2021 – that is after the three controversial payments in question had been made – envisaged that the three children should live with their mother and spend time with their father on alternate weekends and during school holidays.
The terms of the orders are not, in themselves, controversial. The parenting aspects of the orders, clearly give rise to the potential for the mother to make an application for an administrative assessment of child support, given it was agreed that the children would live predominantly with her.
In general terms, pursuant provisions contained in the Child Support (Assessment) Act 1989 (Cth),[9] the Legislature has created a regulatory regime whereby the amount of financial support to be provided by separated parents, for their children, is calculated administratively, through the application of legislatively prescribed formulae. The Registrar of the CSA has the statutory responsibility to apply the formula upon application having been made.
[9] Hereinafter referred to as “the Assessment Act”.
The relevant formulae are based on a number of elements, primarily related to the respective incomes of the parents involved and the extent of care, which each provides to any child concerned. The principle object of the Assessment Act is to ensure that children receive a proper level of financial support from their parents.[10]
[10] See Assessment Act at section 4(1).
The orders made by Mead J, on 20 September 2021, contained a number of notations, one of which is highly controversial given the factual circumstances of the matter. The relevant notation reads as follows:
Whereas the Applicant [the mother] has made an application for an administrative assessment of child support the parties have agreed certain matters relating to the children’s expenses more particularly:
(a)That they will share equally the children’s school fees at XXX XXX College.
From the mother’s perspective, this notation is an obvious indication of each parties’ understanding at the time, namely that in addition to any child support which he was assessed to pay, pursuant to the applicable formula, the father had agreed to pay one half of each child’s private school fees at XXX XXX College. Thus those fees were not to be regarded as a form of child support paid to a third party, which could be credited against amounts of child support as calculated as being payable by the father pursuant to any child support assessment.
The mother applied for a child support assessment on 16 November 2020 and elected that the Registrar of the CSA collect the child support due to her from the father. The documents provided by the CSA[11] indicate that the original assessment was based on a child support income of $68,913.00 for the father and $91,985.00 for the mother resulting in an annual assessment, payable by the father of $12,372.00.[12]
[11] Hereinafter referred to as “the CSA documents”.
[12] CSA documents at page 62.
However, on 30 September 2021, the Agency reassessed the father’s income on the basis of a child support income of $120,000.00 and the income for the mother leading to an annual assessment of child support of $26,049.00 for the period 1 June 2021 to 15 February 2022.[13]
[13] CSA documents at page 68.
On 24 January 2022, the father sought to have the relevant three payments of school fees assessed as being non-agency payments. On 27 January 2022, the first respondent contested that the payments should be regarded as non-agency payments.
On 9 February 2022, a delegate of the Registrar accepted that the sums represented prescribed non-agency payments. The first respondent objected to this decision on 10 February 2022. Each party was invited to provide evidence to the CSA for the objection hearing, so that that the officer of the Agency delegated to hear the objection could undertake a full merits review.
Prior to the review, the first respondent provided to the objections officer an email chain between her and the applicant which she asserted established that he had agreed to pay half of the children’s private school fees in addition to child support. The emails are dated 16 February 2021 and 24 February 2021. They have been forwarded to the Court along with the CSA documents, essentially the Agency’s documentary record, in accordance with the provisions contained in section 46 of the AAT Act.
As previously indicated the objection officer disallowed the mother’s objection on 2 March 2022. The relevant portion of the objection decision reading as follows:
The email exchanges does advise that [the father] will pay child support as assessed by child support agency and pay for half of the school fees and health insurance for the children. This does not mention that the school fees are not to be in lieu of child support and these emails were potentially in the discussion prior to the court order being agreed upon.[14]
[14] CSA documents at page 6.
On 18 March 2022, the mother applied to the AAT for a review of this decision. The relevant hearing took place on 19 July 2022 with each parent providing oral evidence via electronic link. I have not been provided with any transcript of those proceedings. The AAT had the CSA documents. The relevant decision was provided on that date. It was in the following terms:
The Tribunal sets aside the decision under review and, in substitution, decides that the payment for school fees of $4,015.50 made on 16 February 2021, $3,441.00 made on 18 May 2021 and $3,440.50 made on 9 August 2021 by [the applicant] should be refused as a prescribed non-agency payment.[15]
[15] CSA documents at page 251.
THE GROUNDS OF REVIEW
It is this decision which is the subject of these proceedings. The applicant commenced the proceedings on 25 August 2022. The grounds of appeal which found his application are as follows:
(1)The Tribunal member improperly exercised her discretion unsupported by evidence.
(2)The Tribunal member determined to exercise her discretion without due regard to policy, authority and court or tribunal decisions.
(3)The decision by the Tribunal member was unreasonable in the circumstances where an agreement was said to be constituted by email correspondence.
(4)The Tribunal member in determining to exercise her discretion provided no, insufficient or inadequate reasons for so doing.
THE APPLICABLE LEGAL PROVISIONS
As was indicated above, one of the aspects of the child support formula germane to the calculation of child support is the amount of care a parent provides in respect of a child who is subject to a child support assessment.
This is referred to as the care percentage. As at the date of the payment of the relevant private school fees in the case (between February and August 2021) the relevant child support assessment indicated that the father’s care percentage in respect of the three children concerned was 7% and for the mother 93%.
The relevant legislation, contained in the Collection Act provides two mechanisms through which payments to a third party can be credited against a child support liability. Firstly where the parents of the child concerned agree that it should be so regarded – in the relevant jargon, these are referred to as non-agency payments.
Secondly, where the CSA itself determines that such payments are to be so regarded, as a consequence of the application of prescribed legislative considerations – in the relevant jargon, such payments are referred to as prescribed non-agency payments.
Section 71A of the Collection Act deals with the former. It provides as follows:
(1)Subject to section 71D, if:
(a)the payer of an enforceable maintenance liability or carer liability pays a third party an amount that partially or completely satisfies a debt owed by:
(i)the payee of the enforceable maintenance liability or carer liability; or
(ii) the payer; or
(iii) both the payee and payer; and
(b)the payer or the payee applies to the Registrar, in the manner specified by the Registrar, to have the amount, or part of the amount, received by the third party treated as having been paid to the Registrar; and
(c)the amount paid, or a part of the amount paid, was intended by both the payer and the payee to be paid in complete or partial satisfaction of an amount payable under:
(i) the enforceable maintenance liability in relation to the child support enforcement period; or
(ii) the carer liability;
the Registrar must, despite sections 30 and 69B,and in accordance with subsections (2) and (3), credit the amount, or part of the amount, received by the third party against the amount payable under the enforceable maintenance liability or carer liability.
Section 71C(1) of the Collection Act deals with the latter. It provides as follows:
(1)If:
(a)the payer of an enforceable maintenance liability in relation to a payment period or initial period has made one or more payments to the payee of the liability, or to another person; and
(b)the payment is a payment of the kind specified in the regulations; and
(ba)at the time the payment is made, the payer does not have at least regular care of any of the children to whom the relevant administrative assessment relates; and
(c)the sum of those payments exceeds the sum of all such payments previously credited under this section against the amount payable under the liability for all past periods; and
(d)the payer does not, at the time at which the Registrar applies this section, have at least regular care of any of the children to whom the relevant administrative assessment relates;
then the Registrar must, despite section 30, credit the excess amount mentioned in paragraph (c) against the amount payable under the payer’s liability for the period, up to a maximum of 30% of the amount payable.
Regulation 19 of the Child Support (Registration & Collection) Regulations 2018 is the relevant regulation for prescribing the types of payment which must be credited against the child support liability up to a maximum of 30% of the assessed amount. The regulation reads as follows:
Specified payments
For the purposes of paragraph 71C(1)(b) of the Act, payments of the following kinds in relation to an enforceable maintenance liability are specified:
(a)child care costs for the child who is the subject of the enforceable maintenance liability;
(b)fees charged by a school or preschool for that child;
(c)amounts payable for uniforms and books required by a school or preschool for that child;
(d)fees for essential medical and dental services for that child;
(e)the payee’s share of amounts payable for rent or a security bond for the payee’s home;
(f)the payee’s share of amounts payable for utilities, rates or body corporate charges for the payee’s home;
(g)the payee’s share of repayments on a loan that financed the payee’s home;
(h)costs to the payee of obtaining and running a motor vehicle, including repairs and standing costs.
However, both section 71A and section 71C are subject to the provisions of section 71D of the Collection Act. This section reads as follows:
The Registrar may refuse to credit an amount under section 71, 71A or 71C if satisfied that, in the circumstances of the particular case, the amount ought not to be credited.
THE TRIBUNAL DECISION
As indicated above, I have not been provided with a transcript of the proceedings before the AAT. In any event, neither the father nor the mother asserted that the Tribunal had misconstrued or inaccurately summarised the effect of each of their respective evidence provided to it.
Under the heading Background, the Tribunal summarised the relevant administrative decisions, which had led to the hearing before it. In my view, no quibble can be taken with this aspect of the decision.
Similarly, under the heading Issues, in my view, the Tribunal correctly summarised the legislative provisions germane to the merits review, particularly sections 71A, 71C and 71D of the Collection Act and their application to payments made to third parties in the context of child support.
In respect of the interaction between section 71C and the discretion created by section 71D, the Tribunal said as follows:
Section 71C of the Act provides a mechanism whereby payments made by a liable parent to the payee or to another person for items specified in the Regulations may be taken into account in partial satisfaction of the liable parent's child support liability. A number of specific criteria must be satisfied for this provision to apply. Even where all the criteria are met, there is still a discretion in section 71 D of the Act to refuse to credit amounts that would otherwise be able to be credited against the liability.[16]
[16] See AAT Decision dated 19 July 2022 at [10].
Under the heading Consideration, the Tribunal summarised the evidence led before it, which can be summarised as follows:
·The mother deposed that she and the father had agreed that each would pay 50% of the children’s private school fees in addition to any amounts of child support assessed to be paid by the father. In support of this assertion she relied on the emails dated 16 February 2021 and 24 February 2021. The contents of which are as follows:
·I will pay child support as assessed by the Child Support Agency and pay for half school fees and health insurance for the children.
·In addition, this email noted I will now only be paying child support as assessed by the Child Support Agency and paying for half school fees and health insurance for the children.[17]
·The father had been abiding by this agreement and had only resiled from it when the CSA had reassessed his income. At which stage, he had sought to have the payments of school fees classified as prescribed non-agency payments.
·The father deposed that he had agreed to pay half the school fees as well as child support but had always intended to claim the former as prescribed non-agency payments. However, due to work commitments and various family law issues, he had only between able to submit the school fees to the CSA in late 2021.
·He further pointed to the fact that there is no binding child support agreement between the parties relating to school fees.
·The Tribunal found as follows:
·It noted the notation of September 2021, which predated any consideration by the Agency as to whether they were prescribed non-agency payments;
·The father had made the various payments towards the children’s school fees between February and August 2021; and
·It found that the parties had not both intended the payments to be credited against child support and therefore section 71A(1)(a) precluded the sums being regarded as non-agency payments.
[17] See CSA Documents at page 208 – 209.
Given these findings, it is clear that the Tribunal considered that the central legal/factual issue for it to determine was whether the sums should be assessed to consist of a prescribed non-agency payment pursuant to the provisions of section 71C of the Collection Act, subject to the discretion provided by section 71D.
In my view, in the reasons provided, the Tribunal correctly delineated the mandatory nature of the classification of such payments, if the various criteria specified in section 71C were met, noting that such prescription remained subject to the discretion contained in section 71D. The relevant portion of the decision is as follows:
Where such a payment cannot be credited under section 71A of the Act, it may be credited under section 71 C even if there is no mutual intention between the parents. Section 71 C was introduced to give payers more choice regarding the form in which child support is paid. It provides, subject to section 71 D, for an amount to be credited against a payer's child support liability regardless of the intention of the parents at the time the payment was made. Under subsection 71 C(1) of the Act, the Child Support Agency must credit an amount when all the conditions set out in paragraphs 71 C(1)(a) to 71 C(1)(d) are met.[18]
[18] See AAT Decision dated 19 July 2022 at [18].
Thereafter, in accordance with section 71C(1)(b) the Tribunal set out the contents of Regulation 19. In this context, the Tribunal made the following findings:
·The payments made by the father were for school fees and so satisfied Regulation 19(c);
·The father, who had paid the fees, was the payer of an enforceable maintenance liability;
·He did not have regular care of any of the children – regular care is a care percentage between 14% and 35% [see Assessment Act section 5(2)];
·As all the condition contained in section 71C(1) had been met, the Registrar was required to credit any amount that has not already been credited against the amount payable under the payer’s liability for the period, up to a maximum of 30 per cent of the amount payable for that period; and
·Given these circumstances, it found that the sum of $10,897.00 had to be credited.
However, notwithstanding the satisfaction of the criteria stipulated by section 71C had been met, the Tribunal recognised that it had been granted a discretion to refuse to credit the amount pursuant to the provisions contained in section 71D. In this context, it summarised the relevant provisions in the following terms:
Even where all the criteria under section 71C are met, there is still a discretion in section 71D of the Act to refuse to credit amounts that would otherwise be able to be credited against the liability. Section 71D of the Act states that the Registrar "may refuse to credit an amount under section 71, 71A or 71C if satisfied that, in the circumstances of the particular case, the amount ought not to be credited". The title of section 71D is "Registrar may refuse to credit amounts in special circumstances".[19]
[19] See AAT Decision dated 19 July 2022 at [25].
Thereafter, the Tribunal had reference to a document entitled the Child Support Guide, which is published by the Australian Government and designated as a guide to relevant legislation/policy designed to assist decision makers administering social policy law. Part of this Guide deals with non-agency payments.
In this context, the Tribunal had regard to the discussion provided under the heading Discretion to refuse to credit an amount, which was prefaced by the following summary of the relevant provisions, as set out above:
The Registrar can refuse to credit a non-agency payment claimed under the Recovery Act section 71, 71A or 71C if the Registrar is satisfied that, in the circumstances of the particular case, the amount ought not to be credited (section 71D).
Thereafter the Guide provided a non-exhaustive list of matters which might amount to such circumstances. The Tribunal listed these matters in the relevant decision. Particularly relevant to the present matter is the following situation:
The payer is claiming credit under the Collection Act section 71C for an expense which they have undertaken to pay in addition to their liability as specified in an agreement between the parents (this does not have to be a child support agreement).
After having considered this policy, the Tribunal concluded as follows:
Although not bound by policy as set out in the Child Support Guide, the Federal Court has held that a Tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation.
[The mother] has argued that [the father] is claiming credit for school fees for which he had agreed to be responsible for prior to the payments being made.
The Tribunal considered all of the evidence before it and finds that the email exchanges between the parties constitute an agreement for [the father] to pay school fees in addition to his child support liability.
After taking into account the circumstances of this case, the Tribunal is satisfied that the payment for school fees by [the father] totalling $10,897.00 between 16 February 2021 and 9 August 2021 should be refused as prescribed non-agency payment under section 71D of the Act.[20]
[20] See AAT Decision dated 12 July 2022 at [27]–[30].
THE NATURE OF THE PROCEEDINGS BEFORE THIS COURT
The father is aggrieved at the outcome of the proceedings before the AAT and seeks, on appeal to this Court, that the relevant decisions be set aside and returned to the AAT for re-hearing or in the alternative that this Court substitute its own decision for that of the AAT.
Pursuant to the provisions of section 44AAA of the AAT Act, a party to the proceedings before the AAT may appeal to this Court in respect of a decision made by the AAT in a child support matter. These proceedings can be characterised as a child support first review.[21] However, the only ground on which such an appeal can be based is on a question of law. Unlike the proceedings before the AAT, this does not involve a re-hearing on the merits.
[21] Defined by section 3 of the AAT Act as meaning a proceeding that is an application in the social services and child support division of the AAT for first review as provided by Part VIIIA of the Child Support (Registration & Collection) Act 1988 (Cth).
Given this limitation, it is outside the scope of the jurisdiction conferred on this Court to make findings of fact, or remake the decision of the Tribunal, by exercising any discretion conferred upon it — such an exercise of discretion lies at the heart of a merits review. The Court, when conducting a judicial review, is concerned with the procedural and legal limits on such an exercise of discretion, rather than on the substantive content of proceedings.[22]
[22]See Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 71-72 (Dawson J).
It is not within the jurisdiction of a court, which is undertaking a review of a decision, to exercise the function of a merits review, this would be outside of the scope of judicial decision making.[23] Mason J noted in Minister for Aboriginal Affairs v Peko-Wallsend Pty Ltd:
The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion and a decision made within those boundaries cannot be impugned.[24]
[23] See generally Re Kirby; Ex Parte Boilermakers’ Society of Australia (1956) 94 CLR 254.
[24] See Minister for Aboriginal Affairs v Peko-Wallsend Pty Ltd (1986) 162 CLR 24, 40 (Mason J).
Clearly, the substantive decision in this case is one which can be characterised as being a child support first review. Accordingly, the only type of appeal open to this Court is in respect of errors or issues relating to questions surrounding the application of the law.
In Collector of Customs v Pressure Tanker Pty Ltd and Pazzolanic Enterprises Pty Ltd, the Full Court of the Federal Court characterised the nature of an appeal from the AAT, which is restricted to a question of law, from a fact finding and decision making tribunal as follows:
[T]he nature of the task of this court is clear. It is to leave to the tribunal of fact decisions as to the facts and to interfere only when the identified error is one of law.[25]
[25] See Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprise Pty Ltd (1993) 43 FCR 280, at 286-7 (Neaves, French and Cooper JJ).
An administrative tribunal exceeds its powers and commits a jurisdictional error, which is correctable on appeal in respect of a question of law, if it:
•fails to construe properly the legislative provisions applicable;
•identifies the wrong issues or asks itself the wrong questions;
•ignores relevant material or relies on irrelevant material;
•fails to accord procedural fairness to the party before it or otherwise breaches principles of natural justice;
•makes an erroneous finding of such a magnitude that it goes to the very jurisdiction which it purports to exercise rendering its decision perverse or unreasonable or otherwise offending logic.[26]
[26] See Apthorpe v Repatriation Commission (1987) 13 ALD 656, 666 (Davies, Lockhart and Gummow JJ).
The classical definition of jurisdictional error was provided by the High Court in Minister for Immigration & Multicultural Affairs v Yusuf.[27] It described an error, which leads to the vitiation of the jurisdiction of an administrative body, in the following terms:
What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.[28]
[27] See Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323.
[28] See Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323, at 351 [82] (McHugh, Gummow and Hayne JJ).
Accordingly, it is the function of this Court to determine whether the decision of the AAT was within its jurisdiction. That is what is meant by a question of law. As outlined before, it is not the function of this Court to examine the merits of that decision, if the decision concerned was made within the parameters of its jurisdiction. Essentially, it is also not the function of this Court to reappraise the evidence led before the AAT and re-determine the case, according to the conclusions it draws from the evidence available to the Tribunal.
The onus is on the applicant to establish a legal error. As such, I should be cautious when reviewing the decision of the AAT and not approach it with an eye [which is] too keenly attuned to perception of error [or to read it] over-finely.[29]Rather I should take a common sense approach to the AAT’s decision, and the reasons that were provided. The function of the AAT is not to produce reasons of jurisprudential excellence.[30] It is to provide an informal and expedient level of independent review. As such, the reasons of the AAT are to be read fairly.
[29] See Htun v Minister for Immigration & Multicultural Affairs (2001) 233 FCR 136, 151 [36] (Allsop J).
[30] See LDME & JMA (SSAT Appeal) (2007) 38 Fam LR 132, 138 [34]-[35] (Halligan FM).
In Child Support Registrar & Crabbe and Anor,[31] the Full Court of the Family Court provided a summary of principles (and applicable authorities), which are relevant to the review of administrative decisions relating to child support, particularly what matters can constitute an error of law and those which do not. I have attempted to encapsulate them as follows:
•The question of whether there is evidence to support a finding of fact or an inference drawn from a finding of fact is a question of law;
•The making of a finding of fact or the drawing of an inference, in the absence of evidence, is an error of law;
•However, a wrong finding of fact is not necessarily an error of law, if it was based on evidence available to the decision maker;
•As a consequence, a finding of fact based on a faulty process of reasoning is not an error of law;[32]
•Judicial review is not to be over zealous in seeking to find inadequacy or reasoning and so inadvertently turn judicial review of an administrative decision maker into a reconsideration of the merits of the relevant decision;[33]
•An administrative tribunal is required to do no more than set out the findings which it did make on facts which it considered material to the decision made.[34]
[31] See Child Support Registrar & Crabbe and Anor [2014] FamCAFC 10 at [54] (Bryant CJ, Finn and Kent JJ).
[32] See Minister for Immigration & Multicultural Affairs v Al Miahi (2001) 65 ALD 141, 149 [34] (Sundberg, Emmett and Finkelstein JJ).
[33] See Minister for Immigration & Ethnic Affairs v Wu Shan Ling [1996] 185 CLR 259, 271 (Brennan CJ, Toohey, McHugh and Gummow JJ).
[34] See Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [69] (McHugh, Gummow and Hayne JJ).
DISCUSSION
The essential issue in this case is whether the Tribunal fell into some species of legal or jurisdictional error, in applying the discretion available to it under section 71D of the Collection Act, after determining that it was obliged to credit the school fees payment to the father’s child support assessment in accordance with its findings of fact and its analysis of the application of section 71C(1) to those findings. In this context, in my view, each of the grounds of review are closely related.
The relevant sections of the Collection Act were inserted into the original Act by means of the Child Support Amendment Act 1998 (Cth). The relevant explanatory memorandum indicates that the legislative intent of the amendments was to provide a paying parent with a discretion to provide a portion of their monthly child support liability in certain approved payments.
This was in keeping with the sentiments expressed by the relevant Minister, who introduced the legislation (Senator Newman, Minister for Family & Community Services) in the second reading speech of 23 November 1998, when she said as follows:
Arrangements for direct (non-agency) payments in lieu of a child support liability have been changed in order to make them more flexible and allow payers more choice in the form in which child support is paid by them, while protecting payees and meeting the basic needs for children.
The relevant memorandum is brief in respect of the legislature’s intention in respect of section 71D indicating only that:
The Registrar may refuse to credit an amount under the amended sections 71 and 71A if satisfied that in the special circumstances of the particular case the amount ought not to be credited. Special circumstances would include harassment or coercion of the payee in order to obtain the payees agreement to payments of this type.
It is noteworthy that reference is made to the expression special circumstances in the memorandum. This is the expression utilised in the heading to the section – Registrar may refuse to credit amounts in special circumstances but not in the section itself, which utilises the expression in the circumstances of the particular case.
The existence of special circumstances is integral to whether or not either the Court or an administrative decision-maker should depart from the application of an administrative assessment of child support. The rationale being that the relevant formula should apply and therefore the overall administrative integrity of the system of assessment should be preserved unless special circumstances could be demonstrated.
In this context, in Savery and Savery[35] Kay J held that special circumstances were facts peculiar to the particular case which set it apart from other cases. In the Marriage of Gyselman,[36] the Full Court of the Family Court said as follows of the phrase:
Whilst it is not possible to find with precision the meaning of that term, as a generality it is intended to emphasise that the facts of the case must establish something that is special or out of the ordinary. That is, the intention of the legislature is that the Court will not interfere with the administrative formula result in the ordinary run of cases.[37]
[35] See Savery and Savery (1990) FLC 92-131, at 77,897.
[36] See In the Marriage ofGyselman (1992) 15 Fam LR 219.
[37] See In the Marriage ofGyselman (1992) 15 Fam LR 219, at 225.
In the context of the current matter, it would seem to me to be reasonable to conclude that the relevant amendments to the Collection Act, were intended, by the legislature, to bring some level of flexibility in respect of the strict application of the formula, which was originally couched only in terms of financial support being provided in purely monetary terms.
The intention of section 71C being to provide a choice to paying parents that, within certain specified parameters, they could elect to provide child support by means of one or more of the regulated forms of in specie transfer rather than through the provision of cash to the payee parent.
At the same time, as Senator Newman envisaged, the system would also have mechanisms built into it to protect payees and the children, who were the subjects of assessment from potential abuses arising from receiving tied forms of support – by provision of a motor vehicle; direct payment of rent or utilities; et cetera – rather than in money.
It is telling that the word special is not included in the actual body of section 71D. The expression utilised being the circumstances of the particular case. In my view, particular has a more idiosyncratic connotation than special. As a word, it means the following:
Relating to or considered as one thing or person as distinct from others; individual;
More than is usual; special, noteworthy;[38]
[38] Australian Oxford Dictionary.
It is clear, in my view, as a consequence of section 13 of the Acts Interpretation Act 1901 (Cth) that the heading of a section is to be approached on the basis that it is part the act concerned. Accordingly, it would seem to me that in determining any legislature constraints on the discretion contained in section 71D and how those are to be constructed it is incumbent on the Court to consider both the section itself and its heading.
In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue the High Court said as follows in respect of how legislative provisions are to be interpreted:
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself… The language which has actually been employed in the text of legislation is the surest guide to legislative intention.[39]
[39] See Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [46].
More recently again, in R v A2[40] the plurality of the High Court (Kiefel CJ & Keane J) discussed the task entailing in interpreting a statute, albeit in the different circumstances prevailing in respect of a New South Wales criminal statute where, under the relevant state act regarding interpretation, the heading to a section was not to be taken as part of the provision concerned. They said as follows:
The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled. It commences with a consideration of the words of the provision itself, but it does not end there. A literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision, even if the result is improbable has long been eschewed by this Court. It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is completed. This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision.
Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy. “Mischief" is an old expression. It may be understood to refer to a state of affairs which to date the law has not addressed. It is in that sense a defect in the law which is now sought to be remedied. The mischief may point most clearly to what it is that the statute seeks to achieve.
[40] See R v A2 [2019] HCA 35 at [32] – [33].
In these circumstances, the interpretation of any provision must begin with an examination of the specific words used in it. However, in so doing, the relevant task may also involve, via an analysis of the context of the provision, a construction which best achieves the purpose of the statute as a whole. Essentially, what is the objective to which the provision is directed or what problem is it designed to ameliorate.
Ground 1 – Improper exercise of discretion
In the ground of appeal, it is asserted the Tribunal improperly exercised her discretion unsupported by evidence. In his written submissions, counsel for the father, Mr O’Dea submitted as follows:
·The Tribunal did not have regard to any evidence other than the actual emails which passed between them;
·These emails were inconclusive and were drafted in the context of un-concluded settlement negotiations; and
·As such the emails cannot be regarded as any form of explicit agreement as to how the private school fees were to be paid.
The chief difficulty of this submission is that I have not been provided with a transcript of the oral evidence, which each party provided to the Tribunal. Accordingly, it is an assertion, unsupported by actual evidence, that the Tribunal disregarded the evidence of the parties themselves. In the absence of a transcript I am unable to determine the veracity of this assertion. In simple terms, I am unable to ascertain what is the evidence impliedly said to have been overlooked by the Tribunal.
In any event, I am not entitled to substitute my view of the evidence, in the case, for that of the Tribunal. It remains the finder of fact in the matter. More significantly, it is a misnomer to assert that the Tribunal did not refer to any evidence to support its decision. It specifically said that it had considered all of the evidence before it before referring specifically to the various emails passing between the parties and the oral evidence provided by each of them to it.
In this context, the Tribunal did refer to evidence provided by the father to it. It found as follows:
[The father] told the Tribunal that he agreed to pay his child support liability and half of the school fees but that he always intended to claim the school fees as a PNAP. It was a very busy year with various family law issues and proceedings and he did not get around to pursuing the PNAP until the end of 2021. He also said that there was no binding agreement requiring him to pay school fees in addition to the child support.[41]
[41] See AAT Decision dated 19 July 2022 at [13].
In contrast, it summarised the mother’s evidence in the following terms:
[The mother] told the Tribunal that she and [the father] had agreed to each pay 50% of school fees for the children and that this was in addition to [the father’s] child support liability. She referred to two emails contained in the hearing papers, dated 16 February 2021 and 24 February 2021, in which [the father] notes that he will pay child support as assessed by the CSA and pay half the school fees and health insurance for the children. He has been paying 50% of the school fees since November 2020 and only lodged for the PNAPs when Child Support reassessed his income. She is not disputing that he made the payments but rather she is disputing their classification as PNAPs.[42]
[42] See AAT Decision dated 19 July 2022 at [12].
On the face of this evidence, a self-evident controversy had arisen between the parties regarding whether they had agreed to categorise the school fees as prescribed non-agency payments or not. The parties were at cross-purposes. It was the Tribunal’s function, as fact finder at large, to resolve this controversy. It did so – by necessary implication preferring the mother’s evidence.
It is significant, in my view, that the Tribunal made reference to the notation set out in the orders made by Mead J. I accept that such a notation may be utilised as evidence of the mutual intention of the parties concerned at the time of the making of the notation in question but cannot be used in substitution for actual orders.[43]
[43] See Oberlin & Infeld (2021) FLC 94-017 at [44].
More significantly, it was open to the Tribunal to conclude that the father may have intended to classify the payments as PNAPs but he did not convey that intention to the mother and certainly did not obtain her acquiescence to such an approach.
The applicant is not in a position to challenge what is meant by all of the evidence. However, by necessary implication, given the nature of the proceedings before it, the Tribunal logically must have been aware that the father said one thing about the email and the mother another. This was the evidentiary controversy, which the Tribunal was required to resolve in the context of a merits review, in which each party gave evidence. By necessary inference, the Tribunal considered this evidence, as its reasons indicate.
It was in this context that the Tribunal found that, when it considered of all this evidence, the email exchanges between the parties constitute an agreement [for the father] to pay school fees in addition to his child support liability.[44]Accordingly, in my view, it cannot be said there was no evidence on which the Tribunal reached its conclusion.
[44] See AAT Decision dated 19 July 2022 at [29].
A ground of review will fail if there is any evidence to support the impugned finding, even if such evidence can be described as being a skerrick.[45]So long as there is some basis for an inference to be drawn for the relevant decision maker, it is not open to a court conducting judicial review to intervene.[46] In this case, on their face, in my view, the relevant emails indicated that the father would pay child support as assessed… and pay for half school fees.
[45] See Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 at 587.
[46] See Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.
In my view the use of the conjunction and is significant. Clearly there was evidence available to the Tribunal to conclude that the applicant had agreed to pay half of the school fees, in addition to child support. The weight to be given to the email was solely a matter for the Tribunal in its fact finding role.[47] In these circumstances, I accept the following submission of the second respondent:
[T]he Tribunal had regard to a range of available evidence before it, finding that there was an agreement for the applicant to pay the school fees in addition to his child support liability based on the email correspondence it assessed. That was plainly evidence which supported the Tribunal’s finding. There was no requirement that the agreement be some sort of formal written agreement, as the applicant seems to suggest in his written submissions.[48]
[47] See Minister for Immigration and Citizenship v SZJSS [2010] HCA 48 at [33].
[48] See second respondent’s written submissions filed 2 May 2023 at [28].
In all these circumstances, I do not consider that ground one is established. In my view there was evidence to support the Tribunal’s finding that there was an agreement between the parties that the father would pay half the children’s school fees as well as assessed child support. By necessary inference this was the effect of the mother’s evidence.
The father disagrees. However, in the exercise of its jurisdiction it was open to the Tribunal to accept the mother’s evidence in the context of the emails between the parties. As such, in my view, there was nothing improper or unreasonable in the Tribunal exercising the discretion conferred upon it not to credit the payments in question as prescribed non-agency payments pursuant to the provisions of section 71D.
Ground 2 - Failure to have regard to policy and court and tribunal decisions
In this context, the father relies on what was said by the AAT in Maag & Maag (Child Support)[49] as follows:
The Tribunal finds that the function, or at least a major function, of section 71D of the Act is to prevent an injustice or unfairness to a payee (and/or the child/ren of the assessment) if a NAP is credited, where some special or unusual circumstances exist.
[49] See Maag & Maag (Child Support) [2020] AATA 4779 at [43].
It is asserted, in the present matter, that the AAT did not allude to these considerations and failed to consider both the policy enshrined in this passage and the case in question and therefore fell into jurisdictional error.
It is the contention of the second respondent that this submission is misconceived for two reasons, which can be summarised as follows:
·Firstly, the Tribunal’s task was to conduct a de novo merits review on the evidence led before it and reach its own conclusions, following its assessment of that evidence, regarding whether the non-agency payment should be credited or not. It did so.
·Secondly, the Tribunal conducted this task independently and was not bound by the decisions of any other Tribunal conducting the same task. Rather it was required to apply the legislative consideration germane under the Collection Act, which it did.
In any event, in my view, a fair reading of the relevant decision, indicates that the Tribunal, in the current matter did give close consideration to the provisions of section 71D. It made specific reference to the title of the section including making specific reference to the phrase special circumstances. Thereafter, it made specific reference to the policy enshrined in the Child Support Guide.[50]
[50] See AAT Decision dated 19 July 2022 at [25] – [27].
The AAT did have regard to applicable policy. Specifically a non-exhaustive list of circumstances, which might enliven the discretion not to credit a payment.In these circumstances, in my view, although it was not bound to, the Tribunal did consider applicable policy. In these circumstances, in my view, ground two is without foundation and must be dismissed.
Ground 3 – Legal unreasonableness
The father contends that the relevant decision was unreasonable on account of the finding that there was an agreement regarding the interface between the payment of child support and school fees as evident by the email correspondence which passed between them.
A determination may be infected by jurisdictional error if it was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. To assert that a decision of an administrative decision maker is vitiated by each error is a high threshold, which is not easily met. As was indicated by the High Court in Minister for Immigration and Citizenship v SZMDS:
A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.[51]
[51] See Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [135] per Crennan & Bell JJ.
In Minister for Immigration & Citizenship v Li (“Li”)[52] the plurality of the High Court (Hayne, Kiefel & Bell JJ) determined that a decision which lacked “an evident and intelligible justification” was liable to be characterised as an unreasonable one and therefore one which did not involve the proper exercise of the jurisdiction conferred upon the relevant decision-maker. As such, decisions lacking such an intelligible justification are also liable to be vitiated on the basis of jurisdictional error.
[52] See Minister for Immigration & Citizenship v Li (2013) 297 ALR 225 at [75]–[76].
Following on from Li, in Minister for Immigration & Border Protection v Singh,[53] the Full Court identified two distinct areas in which a tribunal may fail to discharge the jurisdiction conferred upon it by acting in a manner which is legally unreasonable.
[53] See Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437.
Firstly, such a tribunal discharges its reasoning functions in a way which is unreasonable in the sense that it is illogical or otherwise lacking in intelligibility. This refers to the process of reasoning, utilised by the relevant decision-maker concerned, in reaching a decision. It is focussed on process, including the application of any relevant statutory criteria to such a decision.
Secondly, the outcome of the proceedings is coloured by some species of caprice or arbitrariness, which renders the decision legally unreasonable, although the applicable jurisdictional questions have been addressed by the decision-maker in question. This second area is outcome focussed.[54]
[54] See Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
Essentially, in conducting its supervisory jurisdiction over a delegated decision-maker, the Court is required to look at the outcome of the exercise of the power delegated to ascertain whether it is one characterised by an extreme level of arbitrariness, which renders the decision no decision at all as it is outside the range of possible outcomes which are defensible in respect of both the facts and the law.
It is also clear, from relevant Federal Court authority, that the level of illogicality or unreasonableness necessary to found jurisdictional error must be extreme and not merely a situation where the minds of potential decision makers (and indeed a court on judicial review) might differ as to the outcome of the issue in question.[55] There must be no doubt that the decision sought to be vitiated is, on its face, axiomatically unreasonable.
[55] See Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137.
In Minister for Immigration & Border Protection v Stretton[56] Allsop CJ (with whom Wigney J agreed) said as follows in respect of how a court should evaluate administrative decisions said to be lacking in a rational foundation:
[T]he task is not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification , or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.
[56] See Minister for Immigration & Border Protection v Stretton (2016) 237 FCR 1 at [11].
In respect of this task of evaluation, Keifel CJ, in Minister for Immigration & Border Protection v SZVFW, suggested one of the indicia of whether an administrative decision was unreasonable – in the sense that it lacked an evident and intelligible justification – might be so characterised if it was:
[A] decision … which no reasonable person could have arrived at, although an inference of unreasonableness is not to be drawn only where a decision appears to be irrational.[57]
[57] See Minister for Immigration & Border Protection v SZVFW (2018) 264 CLR 541 at [10].
I accept that the applicant disagrees with the conclusions reached by the AAT. However, as Gleeson CJ has remarked to characterise a decision, in such circumstances, as legally unreasonable, is frequently a means of expressing fervent disagreement with it. In my view, it was open to the Tribunal to reach the view it did about the email correspondence between the parties, in the context of other findings it made about the credibility of their oral evidence.
Indeed, one logical interpretation of the email I will pay child support as assessed by the Child Support Agency and pay for half school fees is that these words meant what they literally said on the page notwithstanding the applicant’s strenuous assertion that they did not. I agree with the submission of counsel for the second respondent that there was no statutory requirement for there to be any further reduction of this statement into a formal agreement to render it relevant to the exercise of the discretion of the relevant decision maker, in this case, the AAT.
In this context, it was open to the AAT to prefer either the evidence of the applicant or that of the first respondent. In my view, it cannot be said that there was only one reasonable decision open to the Tribunal. Clearly, given the contents of the emails, what the second respondent said about them and the notation to the relevant order, it was logical open for the Tribunal to reach the conclusion, which it did.
In addition, the decision was clearly referrable to the statutory power, with which the AAT was conferred. As such, it cannot be characterised as being arbitrary or capricious. Rather it was within its power and fell within a logical range of outcomes. It was, in my view, a necessary finding of fact, which fell within the jurisdictional ambit of the AAT. In these circumstances, I do not consider that the applicant has made out ground three.
Ground 4 – Adequacy of reasons
In his written submissions, Mr O’Dea counsel for the applicant contends as follows:
The reasons given by the member … in respect of emails constituting an agreement are insufficient. There appears to be no reference to the discourse of the emails, the email date, content what was offered, the reasoning does not set out what was said to be agreed in the emails and whether the parties (at least from the Respondent) had actually confirmed their acceptance of the agreement. The emails by the applicant do not confirm an intention or not by the Applicant that the school fees are not to be in lieu of child support or be in some percentage credited pursuant to s71c of the Act. The Reasoning does not contra indicate whether the parties actually understood the terms of what they were actually entering into, the agreement if there is one does not determine for what period the Applicant is taken to make payments towards school fees and whether it ought to be varied or cancelled.[58]
[58] See applicant’s written submissions filed 17 April 2023 at page 5.
The reasons provided by the AAT, in the current matter, consist of some thirty paragraphs contained within five pages. As indicated above, an administrative decision maker is required to do no more than set out the findings which it did make on facts which it considered material to the decision made. Its function is to be differentiated from that pertaining to that the exercise of a judicial function.
As Halligan FM (as he then was) delineated in LDME & JMA (SSAT Appeal):[59]
It is well settled that when reviewing an administrative decision for error, a court should not be concerned with looseness in language nor with unhappy phrasing, and the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error…
The SSAT is an administrative tribunal, not a court of law, and is bound to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick … It is not afforded the luxury of lengthy deliberation on the reasons for its decisions, but must give the parties written notice of its decision on the review and written or oral reasons for that decision within 14 days of making the decision …The function of the SSAT is not to deliver judgments of jurisprudential excellence when delivering its reasons. In my view, therefore, the above authorities apply to an … appeal, and the court reviewing the reasons for decision of the SSAT in such an appeal to discern legal error should not adopt an overly pedantic approach. (Reference removed)
[59] See LDME & JMA (SSAT Appeal) (2007) 38 Fam LR 132 at [34] – [35].
In my view, a fair reading of the reasons of the Tribunal provided in the current matter, which is not inclined to be pernickety, indicates the following:
·It referred to the evidence before it, including that of the parties themselves and them emails which passed between them;
·In this context, it found there was an agreement between them that the father would pay both assessed child support and half of the private school fees;
·Thereafter, it exercised the discretion conferred upon it refuse to credit those payments as PNAP’s.
In my assessment, it did what was required of it in the context of both the relevant legislation and the evidence led before it. Essentially, it set out the material on the basis of which it then exercised its discretion adversely to the applicant. In my view, it cannot be said that the reasons are inadequate in the context of the jurisdiction conferred on the AAT. The Tribunal was not required to address the additional matters specified in the submission of Mr O’Dea. Accordingly no error based on ground four is established.
CONCLUSIONS
In all these circumstances, the notice of appeal filed on 25 August 2022 must be dismissed. The second respondent seeks that the applicant pay its costs in an amount referrable to scale contained in Part 1 of Schedule 2 of the Federal Circuit & Family Court of Australia (Division 2) (General Federal Law) Rules 2021. The amount sought is $7,543.02.
These proceedings were commenced pursuant to the provision of section 44AAA of the Administrative Appeals Tribunal Act 1975. Accordingly, pursuant to the definition provided by section 7 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) they are not family law or child support proceedings.
In these circumstances, the legal provisions relating to costs under section 117 of the Family Law Act 1975 (Cth), section 100 of the Assessment Act, and section 105 of the Collection Act do not apply. Rather the issue of costs is governed by section 214 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), the relevant subsections of which provides as follows:
(2)The Federal Circuit and Family Court of Australia (Division 2) or a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs must not be awarded.
(3)Except as provided by the Rules of Court or any other Act, the award of costs is in the discretion of the Federal Circuit and Family Court of Australia (Division 2) or Judge.
This section replicates section 79(2) and (3) of the Federal Circuit Court of Australia Act 1999 (Cth) which it replaces. The Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“the Rules”) provides the Court with a broad discretion as to costs and the manner of their calculation.
Pursuant to rule 22.02 of the Rules the Court may:
•Set the amount of the costs;
•Set the method by which the costs to be calculated;
•Refer the costs for taxation; or
•Set a time for the payment of the costs concerned.
In addition, pursuant to rule 22.09, unless the Court orders otherwise, a party is entitled to costs and properly incurred disbursements, as calculated by Schedule 2 to the Rules. This is the method by which the Child Support Registrar has calculated the costs sought by it.
The general rule in civil proceedings is that costs follow the event. This is not to penalise an unsuccessful litigant, rather it is to compensate a successful litigant for expenses which might otherwise have been avoided given the outcome of the substantive issue before the Court.[60] McHugh J expressed the principle in the following terms in Latoudis v Casey:[61]
An order for costs indemnifies the successful party in litigious proceedings in respect of liability for professional fees and out-of-pocket expenses reasonably incurred in connection with the litigation. The rationale of the order is that it is just and reasonable that the party who has caused the other party to incur the costs of litigation should reimburse that party for the liability incurred. The order is not made to punish the unsuccessful party. Its function is compensatory. Thus, in civil proceedings an order may, and usually will, be made even though the unsuccessful party has nearly succeeded or has acted reasonably in commencing the proceedings. It may, and usually will, be made even though the action has failed through no fault of the unsuccessful party.
[60] See Maple v Niu & Anor (No 2) [2018] FCCA 26 at [17] (Terry J), quoting Kazar (liquidator) v Kargarian; In the matter of Frontier Architects Pty Ltd (in Liquidation) (2011) 197 FCR 113, 116 [9] (Greenwood and Rares JJ).
[61] See Latoudis v Casey (1990) 170 CLR 534, 566-7 (McHugh J).
In Maple v Niu & Anor, Judge Terry awarded costs in favour of the Child Support Registrar following an unsuccessful AAT appeal. In so doing, she referenced an early decision of Judge Harland in Baldwin & Bartlett & Anor, who also decided to award costs, in favour of the Registrar, on the basis that costs ordinarily follow the event, including in an AAT Child Support Appeal.[62]
[62] See Baldwin & Bartlett & Anor [2017] FCCA 928.
Like all discretions conferred on the Court, the discretion to award costs is one which must be exercised judicially. Matters which have been deemed relevant to a decision not to award costs include the following:
·The conduct of a party is such that it would not be appropriate to award costs;
·The proceedings in question related to a matter of public interest; or
·An offer to settle proceedings has been made.
No offer to settle was made. I do not consider that the case concerned a matter of public interest. In these circumstances I must make some assessment of the conduct of the parties, which must be considered in the context of the proceedings arising between them and the nature of the statutory provisions which govern them.
I know little about the applicant’s financial resources. He and the first respondent, in common with many separated parents, who come into contact with the child support system, do not have the easiest of relationships and it would appear to be the case that financial issues pertaining to the support of their children have been a source of friction between them.
Similarly, I know little about the mother’s financial situation. I know that she mounted the review process in the AAT, in which her characterisation of the monies paid by the applicant was vindicated. She did not elect to seek legal representation in appeal proceedings, which followed. In these circumstances, the mother, whilst contesting the appeal, essentially tied herself to the tails of the case mounted by the second respondent. No doubt this was an approach directed towards minimising her exposure to costs.
On the other hand, I know that the Registrar is the head of a large publically funded Commonwealth Agency. As a consequence, it has access to financial resources far beyond those available to the applicant (and indeed the second respondent). In general terms, the Child Support Agency is directed towards ensuring children are properly provisioned financially by their parents.
In specific terms, the Agency is directed towards the assessment and collection of child support pursuant to a formula which is legislatively mandated and is based on the care arrangements of children and the income, property and financial resources of their parents.
In this context, one of the functions of the Registrar is to ensure the fairness and integrity of the scheme, which is necessarily complex and so frequently subject to controversy arising between its ultimate users – the separated parents of children.
Given these factors, it is a vital feature of the scheme that it should be subject to thorough mechanisms which provide for arm’s length administrative review. Firstly, within the Agency itself; secondly, through an independent de novo administrative review provided by the AAT.
In this context, section 4(2) of the Assessment Act (replicated to some extent in section 3 of the Collection Act) directs that one of the objective of the child support scheme is that the level of financial support to be provided for children [should be] readily determined without the need to resort to court proceedings. In these circumstances, in my view, it appears significant that the legislature has limited appeals from the Agency itself to a limited form of judicial review, which can only be engaged if any applicant can demonstrate an error of law.
Clearly, I appreciate that the applicant is aggrieved by the decision of the AAT. In my view, in general terms, he has sought to characterise its reasoning as being capricious, unfair, lacking in logic and unsupported by cogent reasons. Essentially, he asserted that no reasonable decision maker could have reached the decision which the AAT did in this case.
The second respondent has successfully rebutted each of these contentions whilst delineating the nature of a judicial review concerning assertions of jurisdictional error. In so doing, the public purse was put to some expense. The second respondent’s analysis of the relevant decision, namely that it was not vitiated by any species of jurisdictional error, has been wholly vindicated.
In my view, notwithstanding the obvious disparity in the financial resources of the applicant and the second respondent, these circumstances justify an award of costs in the second respondent’s favour, which I will fix in an amount of $2,500.00.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and thirty-two (132) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 7 July 2023
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