Dalgetty v Dodd
[2020] FCCA 1836
•8 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DALGETTY v DODD & ANOR | [2020] FCCA 1836 |
| Catchwords: FAMILY LAW– The Family Law Act 1975 (Cth) and related legislation – Children – Child support legislation – Procedure relating to child support legislation – Notice of Appeal (Child Support) – application for extension of time. |
| Legislation: Administrative Appeals Tribunal Act 1975 (Cth), ss.33(1)(c), 44AAA(1), 44AAA(2), 44(2A) Family Law Act 1975 (Cth) s.60B |
| Cases cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 Berry v Commissioner of Taxation [2015] FCA 1244 Child Support Registrar & Crabbe & Anor (2014) FLC ¶98–062 Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344 Jamal v Secretary, Department of Social Services [2017] FCA 916 |
| Applicant: | MS DALGETTY |
| First Respondent: | MR DODD |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | PEG 329 of 2019 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 22 January 2020 |
| Date of Last Submission: | 22 January 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 8 July 2020 |
REPRESENTATION
| The Applicant in person |
| The First Respondent in person |
| Solicitors for the Second Respondent: | Sparke Helmore |
ORDERS
The Notice of Appeal (Child Support) filed on 22 August, 2019 be dismissed.
The applicant pay the second respondent’s costs of and incidental to the Notice of Appeal (Child Support) fixed in the sum of $7,200.
IT IS NOTED that publication of this judgment under the pseudonym Dalgetty v Dodd & 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 PERTH |
PEG 329 of 2019
| MS DALGETTY |
Applicant
And
| MR DODD |
First Respondent
| CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
By her Notice of Appeal (Child Support) filed on 22 August, 2019 the applicant seeks an extension of time to appeal from a decision of the Administrative Appeals Tribunal made on 10 July 2019. She needs an extension of time because the appeal should have been commenced within 28 days of receipt of the Tribunal’s decision but it was commenced one day late.
The Court has power to extend time: s.44AAA(2) and 44(2A) of the Administrative Appeals Tribunal Act 1975 (Cth). The relevant considerations for the grant of an extension of time are generally accepted as best summarised by Wilcox J in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344. Each case for an extension needs to be assessed according to its own facts, but generally speaking the following matters are relevant:
a)the length of the delay;
b)the explanation for the delay;
c)any prejudice caused to the other parties; and
d)the prospects of success of the appeal if time was extended.
Both the first and second respondents oppose any extension of time and they seek that the application be dismissed. The first respondent has filed written submission but they are not particularly helpful. So too, the applicant. The second respondent has filed written submissions.
The applicant explains in her affidavit filed with her application that she was given incorrect “information … by the Federal Circuit Court Information Centre”. I do not know what that is. The applicant says that “The centre directed me to the Family Court of Western Australia (FCWA) and insisted that because I lived in Western Australia (as opposed to anywhere else in Australia), that it was the FCWA who I needed to make my application with, which I subsequently did.”
The applicant attaches correspondence between her and the Family Court of Western Australia which confirms that she attempted to file her appeal with that court but it was rejected. It is curious that she would attempt to file in a court other than the Federal Circuit Court of Australia given the explicit advice that she received about her appeal rights in the material she received from the Tribunal when it sent its decision to her. However, neither of the other parties sought to challenge the applicant on her evidence. I accept it. It provides an explanation for the delay in her attempting to commence her application.
To the extent that the second respondent argues that the applicant has not explained her delay, I reject that submission.
Neither of the respondents point to any particular prejudice if the extension of time is granted. I am not satisfied that they will suffer any particular prejudice if the extension is granted.
Both respondents argue that the extension should be refused because the proposed appeal has no merit. It is to that matter that I now turn, but before doing so it is as well to set out some of the legislative framework within which the appeal might be decided. I have had cause to consider that in another matter, heard at the same time as this case. I reproduce what I have said in that other decision:
4. An appeal under s.44AAA of the AAT Act is not strictly an appeal, but an application in this Court’s original jurisdiction: BVG17 v BVH17 (2019) 268 FCR 448 at [3]. The application is limited to an appeal on a question of law. The submission for the second respondent referred me to Child Support Registrar & Crabbe & Anor (2014) FLC ¶98–062. That decision was made in relation the previous appeal regime that existed under s.110B of the Child Support (Registration and Collection) Act 1988. Under that legislation, just as for an appeal under s.44AAA of the AAT Act, an appeal from the then Social Security Appeals Tribunal was limited to an appeal “on a question of law”.
5. In Crabbe the Full Court of the Family Court of Australia explored what might amount to an error of law and the distinction between an error of law and an error of fact for the purposes of an appeal under the previous legislation. The Full Court did so by reference to Minister for Immigration and Multicultural Affairs v Al-Miahi (2001) 65 ALD 141, Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. The Full Court summarised the position as follows:
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).
6. Whilst Crabbe deals with what might amount to an error of law, it did not deal with the significance of the appeal being on a question of law. The phrase question of law is not synonymous with error of law: Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515. In Haritos v Commissioner of Taxation (2015) 233 FCR 315 the Full Court said, at [92]:
We agree with Ryan J in [Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515] that merely to assert that the Tribunal erred in law in making a particular finding is not to state a question of law. We also agree with the later statement by Ryan J, at 527, that: “[I]t simply begs the question of law to commence it with the words ‘whether the Tribunal erred in law’. If the question, properly analysed, is not a question of law no amount of formulary like ‘erred in law’ or ‘was open as a matter of law’ can make it into a question of law.” (Emphasis added.) But this is not to say that it is impermissible to commence a question of law for the purposes of s 44 with the expression ‘whether the Tribunal erred in law’ if that is given sufficiently precise content by what follows.
See also Jamal v Secretary, Department of Social Services [2017] FCA 916 at [15]; Westrupp v BIS Industries Limited (2015) 238 FCR 354 at [15] and Berry v Commissioner of Taxation [2015] FCA 1244 at [25].
7. Appeals on a question of law appear in other Commonwealth statutes and has garnered its own jurisprudence. For example, a similar expression appears earlier in the AAT Act:
44 Appeals to Federal Court of Australia from decisions of the Tribunal
Appeal on question of law
(1) A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.
8. In the context of s.44(1) of the AAT Act, it is the question of law that is the subject matter of the appeal: Haritos (above) at [84] – [90]. Earlier instances of the same statutory formulation took the same approach: e.g., Brown v Repatriation Commission [1985] FCA 236 which was concerned with s.107VZZH(1) of the Repatriation Act 1920 (Cth).
9. In Haritos (above) the Full Court of the Federal Court of Australia (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ) said:
62. We now turn to consider the more general questions raised by the appeal in relation to s 44 of the AAT Act. In summary, our conclusions are as follows:
(1) The subject-matter of the Court’s jurisdiction under s 44 of the AAT Act is confined to a question or questions of law. The ambit of the appeal is confined to a question or questions of law.
(2) The statement of the question of law with sufficient precision is a matter of great importance to the efficient and effective hearing and determination of appeals from the Tribunal.
(3) The Court has jurisdiction to decide whether or not an appeal from the Tribunal is on a question of law. It also has power to grant a party leave to amend a notice of appeal from the Tribunal under s 44.
(4) Any requirements of drafting precision concerning the form of the question of law do not go to the existence of the jurisdiction conferred on the Court by s 44(3) to hear and determine appeals instituted in the Court in accordance with s 44(1), but to the exercise of that jurisdiction.
(5) In certain circumstances it may be preferable, as a matter of practice and procedure, to determine whether or not the appeal is on a question of law as part of the hearing of the appeal.
(6) Whether or not the appeal is on a question of law is to be approached as a matter of substance rather than form.
(7) A question of law within s 44 is not confined to jurisdictional error but extends to a non-jurisdictional question of law.
(8) The expression “may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal” in s 44 should not be read as if the words “pure” or “only” qualified “question of law”. Not all so-called “mixed questions of fact and law” stand outside an appeal on a question of law.
(9) In certain circumstances, a new question of law may be raised on appeal to a Full Court. The exercise of the Court’s discretion will be affected not only by Coulton v Holcombe [1986] HCA 33; 162 CLR 1 considerations, but also by considerations specific to the limited nature of the appeal from the Tribunal on a question of law, for example the consideration referred to by Gummow J in Federal Commissioner of Taxation v Raptis [1989] FCA 557; 89 ATC 4994 that there is difficulty in finding an “error of law” in the failure in the Tribunal to make a finding first urged in this Court.
(10) Earlier decisions of this Court to the extent to which they hold contrary to these conclusions, especially to conclusions (3), (4), (6) and (8), should not be followed to that extent and are overruled. Those cases include Birdseye v Australian Securities and Investments Commission [2003] FCA 232; 76 ALD 321, Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244, 133 FCR 290, Etheridge, HBF Health Funds and Hussain v Minister for Foreign Affairs [2008] FCAFC 128; 169 FCR 241.
…
[94]. In our opinion, the issue must be approached as one of substance. In cases of doubt, the Court should consider the notice of appeal, the alleged question or questions of law, the grounds raised, the statutory context, and the Tribunal’s reasons for its decision, and having considered all those matters, satisfy itself that there is in fact a question of law.
10. The Federal Court authorities referred to above have been decided in the context of the rules of that court which provide for a particular form to be utilised in such an appeal. Presently that is form 75. It requires the specification of the question or questions of law that are the subject of the appeal. It provides thereafter for specification of the grounds relied on in the application. These are two different matters and their relationship was addressed by Branson and Stone JJ in Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 where, speaking of the former Federal Court Rules, they observed at [18] (my emphasis):
In our view, O 53 r 3(2) discloses an intention that a question of law to be raised on an appeal from the Tribunal should be stated with precision as a pure question of law. It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal.
11. Although Birdseye was overruled in Haritos (as I have set out above), the ratio in Haritos says nothing about the emphasised sentence in the passage from Birdseye above. It continues to be applied. In Sharma v LGSS Pty Ltd [2018] FCA 167, Gleeson J observed at [30]:
The questions of law are to be stated separately from the grounds relied upon in support of the orders sought in the notice of appeal: P v Child Support Registrar [2013] FCA 1312 at [50] (“P”). In P at [51], Wigney J said:
The specification of the grounds relied upon in support of the orders sought should expose the links between the question of law, the circumstances of the particular case and the orders sought on the appeal: Birdseye [2003] FCAFC 232 at [17]-[18]. It is not legitimate to call in aid the grounds specified in the notice to read down the questions of law stated in the notice to what are truly questions of law. If the order sought is that the decision of the Tribunal be set aside, the grounds in support of that order should assume the resolution of the specified question of law in favour of the applicant and indicate, in a summary way, why that resolution requires the decision of the Tribunal to be set aside: Lambroglou at 524. Grounds drawn up in that way could not elucidate a question of law.
12. Given the similarity between the text of ss.44(1) and 44AAA(1) of the AAT Act, it is appropriate in my view to apply the principles that emerge from the cases I have referred to above when determining an application under s.44AAA(1) of the AAT Act. That is to say, the subject matter of the review is the question or questions of law identified by the applicant for review and which emerges from the processes and reasons of the administrative decision maker. The review is confined to the questions of law so identified. The question or questions identified in the review application need not be “pure” questions of law, but might be seen as mixed questions of law and fact. But a question of law must be involved. The statement of the question of law is important, but a failure to so state the questions in the application for review is not fatal. It is the substance of the application which is important. The form prescribed by the Federal Circuit Court Rules 2001 requires the specification of the question or questions of law raised in the review separate from the grounds of appeal. Observance of these matters ensures that the merits of a case are dealt with, not by the Court, but by the Tribunal.
The questions of law proposed by the applicant
There are five proposed questions of law specified by the applicant in her notice of appeal. They are as follows (faithfully reproduced):
1. The Decision Maker erred at law in that he failed to apply or properly apply the rules of Natural Justice and/or Procedural Fairness to the Appellant and acted with apprehended and/or actual bias against the Applicant.
2. The Decision Maker erred at law in that he failed to apply or properly apply the law of Subsection 117 (7B) para (c) of the Child Support Assessment Act 1989 (the Act), in respect of the earning capacity of the Respondent.
3. The Decision Maker erred at law in that he failed to apply or properly apply the law of (paragraph 117 (7B)(c)) of the Act, regarding the assessment of the “onus” of the Respondent in proving if a “major purpose” for his decision to change his working arrangement was not to affect child support.
4. The Decision Maker erred at law in that he failed to apply or properly apply the law, regarding Part 1, 3 (1) and (2) of the Act which outlines that the parents of a child have a “primary duty” to maintain a child and that this duty has “priority over nearly all other commitments”.
5. The Decision Maker erred in that he failed. to apply or properly apply the law in the assessment of the Respondent’s income and financial resources over all the time periods within the decision period.
The application first came before the Court on 30 October 2019. On that day orders were made for the applicant to file any amended notice of appeal that she wished to file “seeking orders within the Courts (sic) jurisdiction and pleading a question or questions of law”.
The applicant did not file any amended notice of appeal. Despite being put on notice the she was required to plead a question or questions of law, the purported questions of law stated in her notice of appeal are not questions, let alone questions of law. Rather, they are assertions about the Tribunal’s decision. However, given that the applicant is self-represented and not a lawyer, the Court should entertain the prospect of framing questions in order to found its jurisdiction. In Haritos v Commissioner for Taxation (above) the Full Court said at [103]:
As a matter of the jurisdiction of the Court, we agree with the summary by Wigney J in P v Child Support Registrar [2013] FCA 1312; 138 ALD 563 at [53], which takes account of the position of self-represented litigants:
A question which is inelegantly drafted may nonetheless be a question of law which attracts the jurisdiction of this court if its purport is tolerably clear having regard to the context in which it appears: Ergon Energy Corp Ltd v Cmr of Taxation (2006) 153 FCR 551 at [51]. In an appropriate case the Court itself may be “prepared to frame questions in order to found its jurisdiction”: Secretary, Department of Education, Employment and Workplace Relations v Ergin (2010) 54 AAR 60 at [11]; 119 ALD 155 at 159; Rana at [16]; Goodricke v Comcare (2011) 55 AAR 188 at [14]–[22]; 122 ALD 546 at 549–550. An appropriate case may arise where, as here, an applicant is unrepresented and where it is possible to discern a question which, if properly framed, could found the jurisdiction of the Court: Hoe v Manningham City Council [2011] VSC 37 at [6]–[7]; Kolya v Tax Practitioners Board (2012) 87 ATR 474 (Kolya) at [8].
The background to the applicant’s appeal is as follows.
The applicant and the first respondent are the parents of two children, one now aged 18 and the other aged 12. Child support was registered for assessment on 30 May 2013 and the first respondent is the liable parent. He was assessed to pay child support to the applicant from 1 January 2018 to 28 February, 2019 at $10,148 per annum based on his 2016/17 adjusted taxable income of $65,975 and the mother’s 2016/17 adjustable taxable income of $102,827.
On 15 February 2018 the applicant applied for a change of assessment and on 27 April 2018 a delegate found that grounds for departure existed on account of:
a)the first respondent’s income, property, financial resources; and
b)the high costs of caring for, educating or training the children.
The delegate found that it was just and equitable and otherwise proper to depart from the assessment and:
a)for the period 1 January 2018 to 31 December 2018 the adjusted taxable income for the first respondent was varied to $100,000 per annum;
b)for the period 1 January 2018 to 31 December 2018 the adjusted taxable income for the applicant was varied to $113,478 per annum;
c)for the period 1 January 2018 to 31 December 2018 the assessed rate of child support otherwise payable by the father was increased by $5,949 per annum.
The decision had the effect of increasing the annual child support payable by the first respondent to $22,575 and created arrears of $3,106.75.
On 1 June 2018 the first respondent objected to the decision. On 13 August 2018 an objections officer allowed the objection and made a departure determination as follows:
a)for the period 1 January 2018 to 31 October 2019 the first respondent’s adjusted taxable income was varied to $110,630;
b)for the period 1 January 2018 to 31 October 2019 the applicant’s ATI was varied to $135,102;
c)for the period 1 January 2018 to 31 December 2018 the annual rate payable by the father was increased by $6,335.
The objection decision had the effect of increasing the annual child support payable by the father from $22,575 as set by the decision under review to $22,999 and creating consequential arrears of $249.82.
On 8 September 2018 the first respondent lodged an application for review of the objection decision with the Tribunal. In the application form he made a number of complaints about the objection decision, including that the child support payable by him as a result of that decision left him with insufficient funds to pay for his own living expenses.
On 18 June 2019 the applicant and the first respondent attended a hearing before the Tribunal at which various documents were tendered by each party. The Tribunal clarified the issues to be determined. I accept and find that the positions expressed by the parties were as follows:
a)The first respondent sought:
i)a review of the adjusted taxable income used for him in the assessment;
ii)a review of the applicants income, property and financial resources; and
iii)relief from being required to pay half of one of the children’s school fees.
b)The applicant said that she was “happy with the objection decision” but nonetheless asked the Tribunal for:
i)a review of the first respondent’s income, property and financial resources;
ii)the issue of the child’s school fees to be examined with respect to the 2018 school year.
On 10 July 2019 the Tribunal made its decision. The Tribunal’s reasons set out three questions it was required to address on the review, namely:
a)is there a ground to depart from the administrative assessment of child support;
b)is it just and equitable to depart from the administrative assessment; and
c)is it otherwise proper to depart from the administrative assessment.
The Tribunal noted that in cases where multiple grounds for departure are put forward, it need only be satisfied that one ground is established before going on to determine whether a particular determination is just and equitable or otherwise proper.
The Tribunal noted that a ground for departure existed under s.117(2)(b)(ii) of the Child Support (Assessment) Act 1989 (Cth) where, in the special circumstances of the case, the costs of maintaining the child are significantly affected because the child is being cared for, educated or trained in the manner expected by the parents. The Tribunal found that this ground was established. In that respect, it made the following factual findings:
a)the parties’ youngest child was being educated at a particular school where she had been enrolled pursuant to an enrolment form signed by both parents in 2011. The Tribunal therefore concluded that both parties made the decision for that child to receive a private school education;
b)the total costs in 2018 for that child to attend that school were $12,070, and that the applicant paid that cost; and
c)that child was being educated in the manner expected by the parents and this significantly affected the costs of maintaining her.
The Tribunal considered whether it was just and equitable to make an order that departed from the administrative assessment. It set out the factors in s.117(4) of the Assessment Act that must be considered when determining whether it is just and equitable to depart from an administrative assessment. The Tribunal found:
a)neither party had a responsibility to any other child or person;
b)there were extra costs to be taken into account in relation to the parties’ youngest child’s education, though other than that, neither child were to be cared for in a particular way or had any special needs;
c)the amount of the children’s needs (other than the costs for schooling) were better calculated by reference to the Costs of the Children Tables under s.155 of the Assessment Act rather than using the applicant’s own estimates;
d)the children had no income, earning capacity, property and financial resources to be taken into account for child support purposes;
e)the first respondent had income, property and financial resources equivalent to a person with an adjustable taxable income of $50,350 between 14 November 2018 and 5 March 2019 and of $42,550 from 5 March 2019;
f)neither party had commitments to any other child or person;
g)the applicant had access to income of $117,000 per annum.
The applicant argued the first respondent had deliberately taken steps to reduce his taxable income for child support purposes. She argued that he had resigned from his employment as a health care worker at Employer B on 30 September 2018 in a deliberate attempt to avoid paying child support. However, the Tribunal rejected her argument and found that s.117(7B) of the Assessment Act was not engaged.
The Tribunal set out its proposed determinations which mirrored the orders it ultimately made. It then considered those proposed terminations in the following way:
a)it set a new income figure for the first respondent from 1 October 2018 rather than 13 November 2018 (the date on which his income actually dropped), and had regard to the principal objective of the scheme in reaching that decision;
b)found the annual amount of child support payable by the first respondent under the Tribunal’s proposed determination was $15,400 per annum from 1 January 2018 to 31 August 2018 together with $6,000 for half of the school fees for 2018. The Tribunal determined that falls in the amount of child support payable by him would then occur on 1 September 2018, 1 October 2018, 1 January 2019 and 5 March 2019 as a result of changes to the income figures as determined by the Tribunal;
c)determined it was just and equitable to retrospectively change the assessment from 1 January 2018 rather than only making a prospective change.
The Tribunal recorded that it had only varied the income for the parties until the end of 2019 and that it would be open to the parties to seek a new change of assessment if they believe the assessment to be unfair from 1 January 2020. The Tribunal concluded that no hardship would be caused to either party or the children under the proposed determination and that it was just and equitable to make that determination.
The Tribunal set out the factors in s.117(5) of the Assessment Act that must be considered when determining whether it is otherwise proper to depart from an administrative assessment. It found that it was otherwise proper to make the proposed determination in circumstances where the parties were not in receipt of any family assistance payments in respect of the children.
The Tribunal proceeded to set aside the objection decision and in substitution made a decision to vary the administrative assessment in the following way:
a)for the period 1 January 2018 to 30 September 2018 the adjusted taxable income of the first respondent was varied to $101,000;
b)for the period 1 October 2018 to 4 March 2019 the adjusted taxable income of the first respondent was varied to $50,350;
c)for the period 5 March 2019 to 31 December 2019 the adjusted taxable income of the first respondent was varied to $42,550;
d)for the period 1 January 2018 to 31 December 2018 the annual rate of child support payable by the father was increased by $6,000 as his contribution towards the education costs for the parties’ child in 2018;
e)for the period 1 January 2018 to 31 August 2018 the adjusted taxable income of the mother was varied to $137,131; and
f)for the period 1 September 2018 to 31 December 2019 the adjusted taxable income for the mother was varied to $117,000.
Consideration
In addition to the questions of law set out in the notice of appeal, there are also grounds of appeal. None of the five questions of law in the notice of appeal contain a question. As the second respondent accurately submits, ground 1 goes to the applicant’s application for an extension of time and is therefore not a proper ground of appeal. Ground 2 is directed to question 1, ground 3 is directed to question 2, ground 4 is directed to question 3, ground 5 is directed to question 4, and ground 6 is directed to question 5.
The first purported question of law asserts that the Tribunal did not properly apply the rules of natural justice and/or procedural fairness to the applicant and also that the Tribunal acted with apprehended or actual bias against her. Her ground of appeal relevant to this question says this (faithfully reproduced):
The Appealant has known the Decision Maker in a professional capacity - often with opposing views and clients with diametrically opposed political leanings - for more than 20 years. The Decision Maker did not acknowledge this or offer an alternative Member of the AAT to conduct the hearing.
The Appealant has written to the AAT regarding the breach in procedural fairness and the perception of perceived, if not, actual bias in the decision against the Appealant. (Annexure 2, within Sworn Affidavit).
As can be observed, this ground of appeal does not engage with the proposed question of law beyond the allegation that there was a perception of, “if not actual bias in the decision against” the applicant. There is no assertion on the grounds of appeal of any other breach of the rules of procedural fairness or natural justice.
The test to be applied in determining whether a judicial officer is disqualified by reason of the appearance of bias, as distinct from proved actual bias is whether, in all the circumstances, a fair-minded lay observer with knowledge of the material objective facts might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the question in issue: Livesey v. New South Wales Bar Association (1983) 151 CLR at 293-294; see also Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 and Johnson v Johnson (2000) 201 CLR 488. The same principles apply to administrative decision-makers: see for example CNY17 v Minister for Immigration and Border Protection (2019) 94 ALJR 140 at [17]. In cases where there is an allegation of bias, the party asserting bias must establish two matters: first, identification of the factor which it is postulated might have led the decision-maker to have decided the matter otherwise than on an independent and impartial evaluation of the merits; and, second, articulation of how that factor might have led to the decision-maker to have decided the matter otherwise than on an independent and impartial evaluation of the merits: CNY17 (above) at [21]. “Taking those two steps is necessary to provide the foundation for the third and critical step in the application of the bias rule. That is the step of assessing whether the fair-minded lay observer might reasonably apprehend in the totality of the circumstances that the articulated departure might have occurred.”: (CNY17 at [21].
The applicant filed an affidavit on 22 August 2019 with her notice of appeal. Annexure 2 to that affidavit is what appears to be a letter dated 6 August 2019 addressed to the President of the Administrative Appeals Tribunal. In that letter, the applicant asserts a number of matters that she says demonstrates that the Tribunal member was biased against her. I will deal with each of them separately.
She points out in the letter that she had “worked professionally intermittently alongside an in direct opposition to” the Tribunal member “over the last 20 years or so”. The applicant says that before she attended a face-to-face hearing she did not understand who the member was or that she knew him. She claims that if the member had raised his identity with her “by simply telling me we know each other I would have requested a member I did not know to decide my matter”. The applicant goes on in the letter to set out that she and the Tribunal member had in their roles in the past as consultants represented clients “whose views were diametrically opposed”. Rather than attempt to summarise the applicant’s claims about this matter, it is as well to set them out in full (with redaction to preserve the parties’ anonymity):
We both worked in the area of public service. During Mr C’s time as Director for the then Employer D, between 2001 - 2005, I worked at two agencies where I represented some clients whose views where diametrically opposed to those of the company who Mr C represented at various meetings. At the time, I was on the contract. In 2005, I moved to Employer E), the largest company in Perth, in the role of Director. The company won the largest contract in Perth - partly based on my past experience on the account and previous working relationship with the agencies. The tender for the account was fiercely fought for amongst other agencies, where Mr C was employed. That tender was the subject of many articles given its value, employment generator, and prestige in the industry. As Director, I in essence managed the account and associated 30 staff working on it. Between 2006 - 2009 when Mr C was Director of the F Company and later when he was employed at G Company, as a Director, I worked as a Senior Consultant at industry competitor H Company, where frequently we attended the same industry conferences, events and meetings. During that time, I recall many instances where Mr C and I personally discussed various issues - sometimes from the same point of view and frequently, with opposing views on a subject matter, based on our respective employer’s views. I knew Mr C well enough and that he was very familiar with my expertise (which he had praised in the past), that when I was made redundant from H Company before he was made reduodant from G Company), that he was one of the first people I contacted seeking employment at G Company, as per Annexure 1, and we spoke for some time. I then sent him my resume.
The last time (other than the hearing) that I saw Mr C was in a store in the Perth CBD, more than a year or so ago, where we simply exchanged pleasantries and moved along.
As the second respondent submits, disqualification by association can occur where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings: Webb v R (1994) 181 CLR 41 at 74.
Having identified the matter which the applicant postulates might have led the Tribunal member to have decided the review otherwise than on an independent and impartial evaluation of the merits, it is for the applicant to demonstrate how that matter might have led the Tribunal member to have decided the matter otherwise than on that basis. Here, she does not do so. She simply asserts that they worked in the same industry and were sometimes opposed to each other when representing their clients’ interests. In my view, that is not enough to lead to the conclusion that a hypothetical fair-minded lay observer, properly informed, would come to the conclusion that the Tribunal member might not decide the review before him without an independent and impartial mind.
I accept the second respondent’s submission that the mere fact that the mother and the Tribunal member worked in the same industry does not lead to the conclusion that the Tribunal member was unable to neutrally evaluate the merits of the case. As the second respondent points out, if that were true then no one who had ever worked in the legal profession could be appointed as a judge or a member of the Tribunal because they would be disqualified from hearing any case in which there was a lawyer with whom they were acquainted.
Upon taking office, a member of the tribunal takes an oath of office in the following form:
OATH OR AFFIRMATION OF OFFICE
I, , do swear that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, her Heirs and Successors according to law, that I will truly serve Her in the office of (insert name of office of member of Tribunal) and that I will faithfully and impartially perform the duties of that office. So Help Me God!
Or
I, , do solemnly and sincerely promise and declare that (as above, omitting the words “So Help Me God!”).
There is nothing in the material before me to suggest that the Tribunal member did not act according to his oath. That is underscored by the fact that the applicant did not apply for the Tribunal member to qualify himself. Even making allowances for the fact that the applicant is a self-represented party, she plainly has experience in advocating by reason of her roles in the past where she, she says, was opposed to the Tribunal member. In those circumstances, one might expect that if the applicant was troubled by the identity of the Tribunal member in her case, she would have applied for him to recuse himself.
The next factor that I apprehend is identified by the applicant in her letter to the President of the AAT is the way in which the proceedings were conducted. She claims that at one point the member made a statement to the effect that he was dismissing the appeal following what the applicant describes as poor behaviour from the first respondent. She claims the first respondent “hung up on the call”. She says that she was then “shocked” when she received a subsequent letter in the mail to say that a further date for the hearing had been rescheduled. She says that there were a further series of phone conferences that were scheduled by counsel at the last minute due to the first respondent’s requests “which was simply readily accepted by” the Tribunal member.
These matters, however, do not indicate any apprehension of bias or actual bias on the part of the Tribunal member. If what the applicant claims occurred, and there is no evidence that it did, it demonstrates the Tribunal member attempting to be fair to both parties. There is no evidence before me that it was inappropriate to grant the rescheduling of the hearings about which the applicant now chooses to complain. There is no evidence before me that the first respondent’s requests to have phone conferences rescheduled were “simply readily accepted”. These matters alone do not demonstrate, on the balance of probabilities, any apprehension of bias or actual bias on the part of the Tribunal member.
The applicant claims that the Tribunal member was actually biased against her. To demonstrate that she complains that she was “handed a bunch of new information from the other party” as she entered the hearing which took place before the Tribunal member on 18 June, 2019. The provision of the information by the Tribunal or the first respondent to the applicant was no doubt done in fulfilment of the Tribunal’s obligation to provide procedural fairness to the applicant. If it was though in circumstances that allowed insufficient time for the applicant to properly consider the material, it was always open to her to seek for the matter to be stood down or adjourned so that she could consider it. She does not suggest that she asked for the opportunity to do that. Her submissions on this application do not demonstrate how it is that she was disadvantaged by the provision of that material at the commencement of the hearing. She does not suggest that she was unable to deal with it in an appropriate manner. This matter does not demonstrate actual bias on the part of the Tribunal member.
The applicant argues that:
Further bias towards me is shown in the fact that [the first respondent] gave evidence at the hearing on June 18 that he worked part-time at Employer B and Employer J I told Mr C this was not true and further, how he could easily substantiate what I was saying to be the truth with the Department of Human Services, who were privy to such information.
However, [Mr C] made no effort whatsoever to check these asserted facts provided by the first respondent and did not even mention my side of the discussion in his findings. This bias is extremely prejudicial to my case as it turns on whether the first respondent deliberately resigned for the main purpose of avoiding payment of child support.
The submissions misunderstand the Tribunal’s function. It was not for the Tribunal to make the enquiry suggested by the applicant. It was a matter for her to provide to the Tribunal the material upon which she wished the Tribunal to decide the review. She did not do so. The course adopted by the Tribunal does not indicate bias.
I accept the second respondent’s argument that the letter to the President of the Tribunal demonstrates that much of the basis for the applicant’s claim that the Tribunal member was biased was because he ruled against her on certain issues in the matter and did not set out some of the things she had to say. However, that the Tribunal makes a finding adverse to the applicant does not give rise to an inference of bias: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38].
In my view, the first purported question of law does not involve a question of law at all and has no merit.
Question 2 asserts that the Tribunal erred at law by failing to apply or properly apply s.117(7B)(c) of the Child Support (Assessment) Act in respect of the earning capacity of the first respondent. Ground 3 of her grounds of appeal is in the following terms (emphasis in the original):
3. The Decision Maker has erred in respect to the earning capacity of the Respondent. The Decision Maker found that the Respondent had demonstrated that it was not a major purpose of his decision to stop working as a full time health care worker on 30 September 2018, to affect the administrative assessment of his child support payments.
The Decision Maker reached his decision without any evidence in support of the finding and, also with the knowledge of evidence, that does not support the finding.
This ground appears directed to the finding of fact made by the Tribunal that the first respondent demonstrated that it was not a major purpose of his decision to stop working as a full time health care worker on 30 September, 2018 to affect the administrative assessment of child support. The Tribunal made that finding at [58] of its reasons for decision. The Tribunal said:
The Tribunal is not satisfied, based on the evidence provided, that affecting the child support assessment was “a major purpose”, or one of the most important factors, in [the first respondent’s] decision to resign from his employment.
Whether there was evidence to support a finding made by an administrative decision maker is a question of law. If there was no evidence to support the relevant finding, then the decision-maker has made an error of law but in the event that the Court determines that there was some evidence upon which the finding could be made, the ground falls away. As the second respondent submits, in order make out a “no evidence” ground the applicant must show that there is no evidence at all upon which the finding could have been based: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.
Here, there was evidence which supported the Tribunal’s findings. There was evidence from the first respondent that he resigned from the relevant position because he was concerned that the employer’s practices were a danger to the community and he confirmed this to be the reason motivating his decision in his resignation letter. It was open to the Tribunal to accept that evidence as it clearly did. That there might have been other evidence to the contrary is not to the point. A determination of the facts based upon the evidence before it is a matter entirely for the Tribunal. It is the job of the Tribunal to weigh the evidence and make the relevant findings. That is what has happened here.
The second purported question of law and associated ground of appeal has no merit.
The third purported question of law argues that the Tribunal erred at law in that it failed to apply or properly apply the law of s.117(7B)(c) of the Child Support (Assessment) Act, “regarding the assessment of the “onus” of the [first respondent] in proving if a “major purpose” for his decision to change his working arrangement was not to affect child support”.
Ground 4 of the applicant’s grounds of review makes it clear that the applicant has misapprehended the Tribunal’s decision. In [58] of the Tribunal’s reasons it records that the onus of proving that a major purpose of the decision to stop work was not to affect child support arrangements rests on the person who made the choice. That is to say, the onus of proving that lay on the first respondent. That is entirely consistent with the position at law, established by the text of s.117(7B)(c) of the Act.
However, the applicant argues that “the only clear written evidence provided by the Respondent around his change in employment is in his Department of Human Services (Child support) “Application to Change your Assessment”, dated 9/10/18. The Applicant writes ‘My employment was terminated on 30 Sept 2018.” and ‘Currently not working.’ (page 4 of 14). (Annexure 3, within Sworn Affidavit)”. She further argues that “it is significant that the Respondent clearly states that his employment was “terminated” as opposed to the Respondent stating he resigned, (which he later asserts verbally at the hearing)”.
The significance that attaches to the first respondent’s statement that his employment was “terminated” is not clear. If it was the case that he resigned his employment, his employment was “terminated”. There is nothing untoward about the applicant using the term “terminated” instead of “resigned”. Termination of employment can happen at either the instigation of the employer, or the employee.
The applicant’s real complaint here is that again, the Tribunal member accepted the evidence from the first respondent. There was evidence before the Tribunal which supported the finding made by it about the major purpose for the applicant stopping work.
Further, that the Tribunal made a finding of fact concerning the first respondent’s resignation from his health care role without having a copy of the relevant employment separation certificate is not an error of law. The Tribunal was entitled to “inform itself on any matter in such manner as it thinks appropriate”: s.33(1)(c) of the AAT Act.
In this connection, the applicant’s reference to Jones v Dunkel (1959) 101 CLR 298 is misplaced and does not assist her argument. In her written submissions she argues that “Following the rule in Jones v Dunkel, it is now open to the Court to infer that this piece of written evidence would be detrimental to the Respondent. That is, that the Respondent simply resigned from his position as the full time health care worker solely for the purpose of effecting child support payments.” However, that submission misunderstands the function of this Court on this appeal. Jones v Dunkel (above) deals with fact-finding and the inferences that might be drawn from the failure of a party to call a witness or to present particular evidence in their case. It is not part of this Court’s function, at least not until it has made a determination that there is a question of law that properly invokes its jurisdiction and an error which requires correction.
This question and ground does not reveal any merit.
Purported question of law 4 suggests that the Tribunal erred at law in that it failed to apply or properly apply the law regarding Part 1, 3 (1) and (2) of the Child Support (Assessment) Act which outlines that the parents of a child have a “primary duty” to maintain a child and that this duty has “priority over nearly all other commitments”. In support of this question, in her grounds of appeal, the applicant argues (faithfully reproduced, emphasis in the original):
5. The Decision Maker notes in para 35 of the decision that Part 1, 3 (1) and (2) of the Act outlines that “the parents of a child have a primary duty to maintain a child and that this duty has priority over nearly all other commitments. “
The Respondent also states in his Financial Statement (Annexure 4, within Sworn Affidavit) that he spends “$5000 a year on his sporting holidays” which is accepted by the Decision Maker with no comment.
In fact, the Decision Maker simply notes the “sporting holidays of $5000 per annum” in his findings (para #70) despite the Respondent’s now claimed taxable income of $42,550 and the Decision Maker finding as per (para #71), that the Respondent “did not explain how he expected to meet the difference between his income and his living expenses”
The Decision Maker does not comment on further expenditure noted on bank statements for expensive sports club entries at various locations in Perth and City K.
The Decision Maker also does not comment on the expenditure of approximately $4 616 per annum (based on 3 monthly statements provided) on alcohol.
The Courts generally take a dim view on parental expenditure which does NOT prioritise the needs of the child first.
The reasons of the Tribunal demonstrate that it applied the law as set out in the Child Support (Assessment) Act. It considered whether there was a ground of review, whether it was just and equitable to make a departure order and whether it was otherwise proper to make such an order. The applicant’s reference to s.3 of the Act and the overall objectives of the child support legislation do not assist her argument. That is because, as the second respondent points out, the statutory recognition of the duty which falls upon parents to maintain their children in s.3 of the Assessment Act, together with the statement in s.4 as to the object of the Assessment Act being to ensure children receive proper financial support from their parents, provide the context within which the substantive provisions of the Assessment Act are to be interpreted and applied. Those provisions aid the interpretation of the provisions in the Act concerning departure applications, but they do not work to change the ordinary meaning of the provisions found within Part 7, Division 4. I accept those submissions. They are plainly correct and consistent with authority: Lokare & Baum [2016] FamCAFC 135 at [74] – [81]. Although the Full Court of the Family Court of Australia there was considering s.60B of the Family Law Act 1975 the principles apply equally to the object provisions in the Child Support (Assessment) Act.
This question of law and its associated grounds are, in my view, an attempt at impermissible merits review. They have no merit.
The fifth proposed question of law argues that the Tribunal erred in that it failed to apply or properly apply the law in the assessment of the first respondent’s income and financial resources over all the time periods within the decision period. Ground 6 of the grounds of appeal suggests that the Tribunal’s findings concerning the first respondent’s income were “based on incomplete and insufficient evidence” and were “against the evidence” before the Tribunal.
However, the applicant does not argue that there was no evidential basis for the findings that the Tribunal made. Her argument is that the Tribunal did not deal with the first respondent’s evidence in the way in which she argues it ought to have been dealt with. She suggests that there was an onus on the Tribunal to make its own enquiries about various matters and to verify various statements made by the first respondent. However that is not the role of the Tribunal. One of the functions of the tribunal is to assess the evidence placed before it and to determine what weight it might give to that evidence. That is the task that the Tribunal performed here.
This question of law and ground does not reveal any error of law on the part of the Tribunal. It has no merit.
Conclusion
The applicant does not demonstrate that there is a question of law which properly engages the jurisdiction of this Court pursuant to s.44AAA(1) of the Administrative Appeals Tribunal Act. Her proposed appeal, in my view, lacks any discernible merit. In those circumstances, there is no point in granting an extension of time within which she might commence her appeal because to do so would be futile.
In those circumstances, the application filed on 22 August, 2019 must be dismissed.
The second respondent seeks his costs of the application fixed in the sum of $7,200 in accordance with Schedule 1, Part 2, Division 2, Item 3 of the Federal Circuit Court Rules 2001 (Cth). The applicant has been wholly unsuccessful in her application. She has sought to engage in impermissible merits review. Those matters are justifying circumstances sufficient to warrant an order for costs as the second respondent seeks.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 8 July, 2020
Associate:
Date: 8 July 2020
27
5