DBT23 v DBY23

[2024] FedCFamC2G 338

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

DBT23 v DBY23 [2024] FedCFamC2G 338

File number(s):	SYG 2001 of 2023
Judgment of:	JUDGE STREET
Date of judgment:	12 April 2024
Catchwords:	CHILD SUPPORT – appeal from the Administrative Appeals Tribunal – failure to have to regard to belated material conceded - found to be material - appeal allowed
Legislation:	Child Support (Assessment) Act 1989 (Cth)
Cases cited:	LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 24
Division:	Division 2 General Federal Law
Number of paragraphs:	12
Place:	Sydney
Counsel for the Applicant:	Ms K Young
Solicitor for the Applicant:	Eakin McCaffery Cox Lawyers
Counsel for the First Respondent:	Ms J Tabbernor
Solicitor for the First Respondent:	Slat Family Lawyers
Solicitor for the Second Respondent:	Mr A Taverniti of Sparkle Helmore Lawyers

ORDERS

SYG 2001 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

DBT23

Applicant

AND:

DBY23

First Respondent

CHILD SUPPORT REGISRAR

Second Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	12 APRIL 2024

THE COURT ORDERS THAT:

1.A writ is granted in the nature of certiorari calling up the record of the Administrative Appeals Tribunal and quashing the decision dated 30 October 2023.

2.An order writ is granted in the nature of mandamus requiring the Administrative Appeals Tribunal to determine the application for review according to law.

3.The first respondent pay the applicant’s costs fixed in the sum of $4,500.

4.The second respondent pay the applicant’s costs fixed in the sum of $4,500.

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).

Note: 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 STREET

1. This is an application for judicial review in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 30 October 2023 in respect of a decision that was made substituting a decision for the period 1 December 2022 to 31 October 2024. DBT23’s adjusted taxable income has varied to $192,056, and for the period 14 September 2023 until X (“the child”) turns 18, DBT23’s self-support is increased by $37,500 per annum, to accommodate his increased costs of travelling to Australia to spend time with X. The Court notes the child is now 11 years of age.

2. The Child Support Registrar properly drew the Court's attention to information to which the Tribunal did not have regard. It was not a disputed fact that the Tribunal did not have regard to that information. The Court granted leave to the applicant to file an amended notice of appeal that raised in ground 1(a) the information to which the Tribunal had not had regard, and contended that the Tribunal had constructively failed to exercise its statutory jurisdiction by not having regard to that material.

3. The test to be applied, given the concession that the tribunal did not have regard to the same, was identified in the joint judgment of their Honours Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 24 at [36] and is as follows:

   It would involve improper speculation to attempt to discern how the Tribunal would have reasoned if it had not departed from the required process of reasoning in these respects. It follows that there is a possibility, not fanciful or improbable, that the decision that was made in fact could have been different if the error had not occurred. The threshold of materiality was met. None of the facts before the Court provided a basis to consider that the outcome would inevitably have been the same had the error not been made. The error was jurisdictional. The curial relief sought by the appellant should be granted.

4. Ms Young, on behalf of the applicant, took the Court to the material to which the Tribunal failed to have regard and contended that there were three material facts that met the criteria identified by the High Court by reason of which there was a constructive failure to exercise its jurisdiction. The first material fact was contended to be the surrender and allocation of new ordinary shares that occurred in late 2023 to the applicant in a quantity of one million shares. 

5. The second material fact was a statement that 25 per cent of the options vest immediately on the date of grant, that means that 25 per cent of the one million shares vested in late 2023.  It is the case, as the Child Support Registrar and the first respondent drew the Court's attention to the fact that there was an earlier disclosure of there being share option grants held in the amount of one million that had been allocated in 2022.  The vesting, however, of the options as of the date of grant meant that the asset statement that had been provided by the first respondent was clearly incorrect in respect of the value of those shares. 

6. The first respondent drew attention to the date of the statement of assets as being earlier than this particular grant. That may be the case. However, in facts 1 and 2 identify is that there were vested shares now held by the first respondent in relation to the statutory functions that the Tribunal had to carry out in applying the relevant test under section 117 of the Child Support (Assessment) Act 1989 (Cth). The Child Support Registrar submitted a third potential material fact in respect of the shares held having a value of $250,000 in the public listed company. The Court accepts that there was material before the Tribunal that identified that shareholding and accepts that the third material fact contended by Ms Young was not material and could not possibly have given rise to a different outcome.

7. However, the first two facts are ones in respect of which the Child Support Registrar contended that the Tribunal was aware of the stock options and, indeed, the Tribunal in paragraph 77 of its reasons refers to there being stock options and contended that the new facts could not realistically have given rise to a different outcome. The first respondent also sought to contend by taking the Court to the historical allocation of shares and the criteria that had to be applied to meet particular thresholds for allocation that there were to be allocated potential allocations of 25 per cent per year, subject to meeting certain criteria. That material falls short of disclosing facts 1 and 2. 

8. It is not a high threshold in respect of materiality as was identified by the High Court of Australia in the above recent decision. As unfortunate as it is in the present case, applying the principles as to materiality identified above, the Court finds that there is a possibility that is not fanciful or improbable that the outcome could have been different if the error had not occurred in the present case. There is such a possibility in respect of the material to which the Tribunal did not have regard and it is neither fanciful or improbable. In the circumstances of this case, a different outcome is possible. In these circumstances, the Tribunal has constructively failed to exercise its jurisdiction. 

9. Ms Young contended that she had been the successful party. The issue of materiality of fact was contested by both the Child Support Registrar and by the first respondent. In those circumstances, there is force in the contention advanced by Ms Young that she should have a costs order in accordance with the ordinary consequence.  It was identified by Ms Young that the costs order being sought was in the amount of $9,000 as a fixed amount. This Court ordinarily fixes costs in applications of this kind because it brings finality, hopefully, to proceedings. It is most unfortunate that finality is not being able to be brought to these proceedings. 

10. Both parties are extremely well off, and the agitation of the issues before the Tribunal and this Court seems a waste of costs and resources. The other grounds identified in the notice of appeal, although the Court, did not have to deal with the same, were all highly questionable as to whether they properly raised any question of law and were highly questionable as to whether any would succeed.  However, it is the case that the applicant has succeeded on the ground that was properly and squarely identified by the Child Support Registrar in respect of the most unfortunate event of there being material that meets the material fact threshold that was not before the Tribunal, even though it had been provided by the applicant. 

11. The failure to provide the information to the Tribunal, even though it had been received, was properly conceded by the Child Support Registrar as an error and, also, no contrary contention was advanced by the first respondent. Both took a proper course in that regard.  However, there was an agitation of the issue of materiality which the Court has found in favour of the applicant upon and, accordingly, it is appropriate in the circumstances of this case for the fixing of costs in the amount that has been identified. The Court may have taken a very different view if a significantly greater amount had been sought.

12. Accordingly, the Court makes the above orders.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street.

Associate:

Dated:       26 April 2024