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 |
| 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…
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Details
- AGLC
- Dalgetty v Dodd [2020] FCCA 1836
- Case
- [2020] FCCA 1836
- Decision Date
CaseChat Overview and Summary
The applicant, Dalgetty, sought to appeal a decision of the Child Support Assessment Tribunal concerning child support payments. The dispute centred on the first respondent's (Dodd) decision to cease full-time employment as a healthcare worker. The appeal was heard by Judge Jarrett.
The primary legal issues before the court were whether the Tribunal had erred at law by failing to apply or properly apply section 117(7B)(c) of the Child Support (Assessment) Act 1988 (Cth) in relation to the earning capacity of the first respondent. Specifically, the applicant argued that the Tribunal made a finding of fact without sufficient supporting evidence, concerning whether the first respondent's decision to stop working full-time was primarily motivated by a desire to affect his child support assessment.
Judge Jarrett dismissed the appeal, finding that the applicant had not demonstrated an error of law. The court applied the principle that to succeed on a "no evidence" ground, the applicant must show there was no evidence at all upon which the Tribunal's finding could be based, citing *Australian Broadcasting Tribunal v Bond*. In this instance, the Tribunal had evidence from the first respondent, supported by his resignation letter, stating his concern for community safety as the reason for his resignation. The court held that it was open to the Tribunal to accept this evidence and weigh it accordingly, and that the existence of contrary evidence did not invalidate the Tribunal's factual determination. The court found that the Tribunal had properly considered the evidence before it in reaching its decision.
Consequently, the Notice of Appeal (Child Support) filed on 22 August 2019 was dismissed. The applicant was also ordered to pay the second respondent's costs of and incidental to the appeal, fixed at $7,200.
The primary legal issues before the court were whether the Tribunal had erred at law by failing to apply or properly apply section 117(7B)(c) of the Child Support (Assessment) Act 1988 (Cth) in relation to the earning capacity of the first respondent. Specifically, the applicant argued that the Tribunal made a finding of fact without sufficient supporting evidence, concerning whether the first respondent's decision to stop working full-time was primarily motivated by a desire to affect his child support assessment.
Judge Jarrett dismissed the appeal, finding that the applicant had not demonstrated an error of law. The court applied the principle that to succeed on a "no evidence" ground, the applicant must show there was no evidence at all upon which the Tribunal's finding could be based, citing *Australian Broadcasting Tribunal v Bond*. In this instance, the Tribunal had evidence from the first respondent, supported by his resignation letter, stating his concern for community safety as the reason for his resignation. The court held that it was open to the Tribunal to accept this evidence and weigh it accordingly, and that the existence of contrary evidence did not invalidate the Tribunal's factual determination. The court found that the Tribunal had properly considered the evidence before it in reaching its decision.
Consequently, the Notice of Appeal (Child Support) filed on 22 August 2019 was dismissed. The applicant was also ordered to pay the second respondent's costs of and incidental to the appeal, fixed at $7,200.
Orders
Orders of the court
1.
The Notice of Appeal (Child Support) filed on 22 August, 2019 be dismissed.
2.
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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”.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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