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)…
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- AGLC
- CXW22 v CXX22 [2023] FedCFamC2G 580
- Case
- [2023] FedCFamC2G 580
- Decision Date
CaseChat Overview and Summary
The case of CXW22 v CXX22 involved the father, the mother, and the Registrar of the Child Support Agency. The dispute centred on whether payments made by the father towards his children's school fees could be considered prescribed non-agency payments under the Child Support (Collection) Act 1988 (Cth). The matter was heard and determined by the Administrative Appeals Tribunal (AAT). The AAT was required to decide whether the father's payments for his children's school fees could be considered prescribed non-agency payments, thereby crediting his child support liability. This required an analysis of the statutory provisions, specifically sections 71A, 71C, and 71D of the Collection Act, and the intentions of the parties involved.
The AAT determined that the father's intention to claim the school fees as prescribed non-agency payments was not shared by the mother, and therefore, the payments could not be regarded as non-agency payments under section 71A(1)(a) of the Collection Act. The Tribunal found that the father had made the payments in good faith but acknowledged that the mother did not share this intention. As a result, the Tribunal held that the Registrar was not required to credit the amounts paid by the father towards the children's school fees against his child support liability. The Tribunal concluded that the father's payments could not be considered prescribed non-agency payments, and the Registrar was within his discretion to refuse to credit the amounts under section 71D of the Collection Act.
In summary, the AAT dismissed the father's appeal, finding that the Registrar was not required to credit the father's school fee payments against his child support liability. The Tribunal's decision was based on the lack of mutual intention between the parties regarding the classification of the payments as prescribed non-agency payments. The Registrar was within his statutory discretion to refuse to credit the amounts paid by the father towards the children's school fees.
The AAT determined that the father's intention to claim the school fees as prescribed non-agency payments was not shared by the mother, and therefore, the payments could not be regarded as non-agency payments under section 71A(1)(a) of the Collection Act. The Tribunal found that the father had made the payments in good faith but acknowledged that the mother did not share this intention. As a result, the Tribunal held that the Registrar was not required to credit the amounts paid by the father towards the children's school fees against his child support liability. The Tribunal concluded that the father's payments could not be considered prescribed non-agency payments, and the Registrar was within his discretion to refuse to credit the amounts under section 71D of the Collection Act.
In summary, the AAT dismissed the father's appeal, finding that the Registrar was not required to credit the father's school fee payments against his child support liability. The Tribunal's decision was based on the lack of mutual intention between the parties regarding the classification of the payments as prescribed non-agency payments. The Registrar was within his statutory discretion to refuse to credit the amounts paid by the father towards the children's school fees.
Orders
Orders of the court
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Background
Background to the litigation
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.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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.
Ratio Decidendi
Legal Principle Established
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