Dabner v Child Support Registrar
[2020] FCCA 1262
•21 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DABNER v CHILD SUPPORT REGISTRAR & ANOR | [2020] FCCA 1262 |
| Catchwords: CHILD SUPPORT – Stay of orders – application to stay orders – where Notice of Appeal cavils with the merits of the decision – where no error of law established. |
| Legislation: Administrative Appeals Tribunal Act 1975 (Cth), ss.44A, 44AAA. |
| Cases cited: Child Support Registrar v Crabbe [2014] FamCAFC 10 Comcare v Nicolas [2014] FCA 638. |
| Applicant: | MR DABNER |
| Respondent: | CHILD SUPPORT REGISTRAR |
| Second Respondent: | MS DAILE |
| File Number: | BRG 851 of 2019 |
| Judgment of: | Judge Cassidy |
| Hearing date: | 13 March 2020 |
| Date of Last Submission: | 13 March 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 21 May 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Self-Represented |
| Solicitors for the First Respondent: | Mills Oakley |
| Solicitors for the Second Respondent: | No Appearance |
ORDERS
That the stay application filed on 27 August 2019 be dismissed.
That the First and Second Respondents costs of and incidental of today be reserved.
Hearing date
That the Appeal be set down for hearing at 9:00am on 17 September 2020 in the Federal Circuit Court of Australia at Brisbane.
Directions for hearing
That the Appellant have liberty to amend the Grounds of Appeal to plead the question or questions of law provided that such amendment has been filed and served by no later than 4.00 pm on 20 August 2020.
That in the event the Appellant intends to rely on the transcript (or part thereof) to establish the Grounds of Appeal, the Appellant 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 20 August 2020 days prior to the hearing of the Appeal.
That, if applicable, the Appellant 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 20 August 2020.
That for the Appeal the following documents shall be relied upon:
(a)The Notice of Appeal;
(b)A copy of the decision of the AAT;
(c)The statement of reasons for that decision;
(d)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;
(e)Any affidavit filed pursuant to Order (6) above;
(f)The transcript of the AAT proceedings (if available);
(g)Any such other document(s) for which leave of the Court has been granted.
That the Appellant and Respondent must obtain leave of the Court to rely upon any other document or to receive further evidence.
That the parties shall have leave to inspect and copy the s.46(1)(a) documents.
That the Appellant file and serve written submissions by no later than 4.00 pm on 20 August 2020.
That the Respondent file and serve written submissions by no later than 4.00 pm on 3 September 2020.
That the Child Support Registrar file and serve written submissions by no later than 4.00 pm on 10 September 2020.
That each party have liberty to apply for any further directions on the giving of two (2) days’ notice in writing to the other.
IT IS NOTED that publication of this judgment under the pseudonym Dabner v Child Support Registrar & Anor is approved pursuant to s.110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 851 of 2019
| MR DABNER |
Applicant
And
| CHILD SUPPORT REGISTRAR |
First Respondent
And
| MS DAILE |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for an order to stay the administrative decision by the Administrative Appeals Tribunal (herein ‘the AAT’) that was made on 27 August 2019 pending the Applicant’s appeal of that decision.
The Law
The relevant provision in relation to the appeal is contained within section 44AAA of the Administrative Appeals Tribunal Act 1975 (Cth) (herein ‘the Act’):
“(1) If the Tribunal as constituted for the purposes of a proceeding that is a child support first review does not consist of or include a presidential member, a party to the proceeding may appeal to the Federal Circuit Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.
(2) The following provisions of this Part apply in relation to any such appeal as if the appeal were an appeal under subsection 44(1) and a reference in those provisions to the Federal Court of Australia were a reference to the Federal Circuit Court of Australia:
(a) subsections 44(2A) to (10) (other than paragraphs 44(3)(a) to (c));
(b) section 44A (other than subsection (2A));
(c) paragraphs 46(1)(a) and (b).
(3) Paragraph 44(2A)(b) applies in relation to any such appeal as if the reference in that paragraph to rules of court made under the Federal Court of Australia Act 1976 were a reference to rules of court made under the Federal Circuit Court of Australia Act 1999.
(4) Subsection (1) does not affect the operation of subsection 44(1) in relation to a proceeding that is a child support first review.”[1]
[1] Administrative Appeals Tribunal Act 1975 (Cth) ss 44AAA(1)-(4).
The power in relation to a stay of that decision is contained within section 44A of the Act:
“Appeal does not affect operation of Tribunal’s decision
(1) Subject to this section, the institution of an appeal to the Federal Court of Australia from a decision of the Tribunal does not affect the operation of the decision or prevent the taking of action to implement the decision.
Stay order
(2) Where an appeal is instituted in the Federal Court of Australia from a decision of the Tribunal, that Court or a Judge of that Court may make such order or orders staying or otherwise affecting the operation or implementation of either or both of the following:
(a) the decision of the Tribunal or a part of that decision; and
(b) the decision to which the proceeding before the Tribunal related or a part of that decision;
as that Court or Judge considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the appeal.”[2]
[2] Ibid ss 44A(1)-(2).
The Decision
The decision under review was varied by the Tribunal Member K Buxton as follows:
“The decision under review is varied so that the administrative assessment of child support in place is departed from as follows:
For the period 31 July 2018 to 31 October 2020 Mr Dabner’s adjusted taxable income is varied to $120,000 per annum;
For the period 3 September 2018 to 24 July 2019 Mr Dabner’s adjusted taxable income is varied to $52,000 per annum and, thereafter, is to be dealt with by application of the administrative formula; and
The reduction in the annual rate of child support payable by Mr Dabner, of $3,000 per annum, ceases to apply to the child support case from 1 March 2018.
When a Stay is Appropriate
In Comcare v Nicolas [2014] FCA 638 Edmonds J held at [6]-[7]:
“[6] The discretion conferred by s 44A(2) of the AAT Act should be exercised only where special circumstances justify departure from the rule that a successful litigant is entitled to the fruits of judgment pending the appeal; for example, because the appeal, although successful, may otherwise be rendered nugatory: see Broadbent v Civil Aviation Safety Authority [1999] FCA 1871 at [5], [6]; Hartnett v Migration Agents Registration Authority [2003] FCA 998 at [4]; Theo v Secretary, Department of Family Services [2004] FCA 1748 at [5].
[7] Such special circumstances have been held to exist typically, but not exclusively, where the respondent’s financial state is such that there is no reasonable prospect of recovering the moneys paid pursuant to the judgment under appeal: Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mouratidis [2010] FCA 880 at [21].”[3]
[3] Comcare v Nicolas [2014] FCA 638, [6]-[7].
In the present case the Child Support Registrar (herein ‘the Registrar’) submitted that a stay is not necessary on the basis that if the decision is not stayed and the appeal is successful the decision of the appeal court would not be rendered nugatory.
There are provisions in the child support scheme to vary the child support collected if there has been an overpayment to the Respondent because this appeal is successful.
I am therefore satisfied that this is not a basis for staying the decision of the AAT pending the appeal.
I also consider it is appropriate to at least note the merits or otherwise of the appeal as another basis for granting or not granting a stay.
The appeal is an appeal on a question of law.
The questions of law set out in the Notice of Appeal filed on 1 October 2019 are:
“1. The AAT Member erred in her decision to not fully consider the associated cost of moving the office in a further attempt to reduce expenses over time and or to employ additional staff as a result of my continuing health condition.
2. The AAT Member erred in her decision to directly or indirectly discriminate in relation to my relationship with my daughter (sic) remuneration package with no real regard to for (sic) her full responsibilities of the day to day running of the business due to my current health condition.
3. The AAT Member (erred) in her finding that I have some involvement in the business and that I remain the decision maker and controlling mind in the business.
4. That the AAT Member erred in her finding that her decision would not cause any hardship to either party.”
The Registrar argues that the four (4) questions of law cavil with the merits of the AAT decision.
In order for the Applicant to succeed in relation to a dispute in relation to a factual enquiry the decision maker has to have made a finding of fact in the absence of evidence. A useful summary of the relevant principles is set out in Child Support Registrar v Crabbe [2014[ FamCAFC 10 at paragraph [54]:
“[54] The following principles emerge from these authorities and have relevance to our decision as to whether the Federal Magistrate erred in his review of the SSAT decision in a manner which requires our intervention:
The question of whether there is evidence to support a finding of fact or an inference drawn from findings of fact is a question of law (Al-Miahi).
The making of a finding of fact or the drawing of an inference in the absence of evidence is an error of law (Al-Miahi).
A wrong finding of fact is not an error of law (Al-Miahi).
A finding of fact based on reasoning that is “demonstrably unsound“ or on an “illogical course“ or a “faulty process“ of reasoning is not an error of law (Al-Miahi).
Judicial review is not to be over-zealous in seeking to find inadequacy of reasoning by an administrative decision maker; the review of the reasons of an administrative decision maker must not be turned into a reconsideration of the merits of the decision (Wu Shan Liang).
Section 103X(3)(b) of the Registration and Collection Act (by analogy with s 430 of the Migration Act) requires the SSAT to do no more than set out the findings which it did make on facts which it considered material to the decision which it made (Yusuf).”
I accept the submission of the Registrar that:
“So in the Registrar’s submission, the notice of appeal as it currently stands does not enjoy any reasonable prospect of success.”[4]
[4] Transcript of Proceedings 13 March 2020, p 5, L 21-22.
…
“And as have previously (sic) submitted, the order, a stay order, is not necessary to secure the effectiveness of the appeal, and in those circumstances, the Registrar seeks for the stay application to be dismissed.”[5]
[5] Transcript of Proceedings 13 March 2020, p 5, L 26-28.
I will therefore dismiss the stay application filed 27 August 2019.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Cassidy
Associate:
Date: 21 May 2020
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