DPH22 v Dpi22

Case [2023] FedCFamC2G 933

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

DPH22 v DPI22 [2023] FedCFamC2G 933

File number(s): MLG 2513 of 2022
Judgment of: JUDGE CHAMPION
Date of judgment: 20 October 2023
Catchwords: CHILD SUPPORT – Appeal on a question of law from a decision of the Administrative Appeals Tribunal – Whether special circumstances existed-  whether the administrative assessment of child support would result in an unjust and inequitable determination – whether departure order just and equitable - whether departure order otherwise proper - whether departure order can be made to cover a prospective 18 month period - whether departure order must be calculated by a mathematical formula – Application dismissed
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) ss. 3, 4, 43, 44AAA

Child Support (Assessment) Act 1989 (Cth) ss. 7A, 98B, 98C, 98S, 117

Child Support (Registration and Collection) Act 1988 (Cth)

Cases cited:

 AEF23 v Child Support Registrar [2023] FCA 758,

Agrippa v Horton (SSAT Appeal) [2010] FMCAfam 1144

Bond v Child Support Registrar & Anor [2018] FCCA 422

Costa & Fairbank [2010] FMCAfam 39

Gyselman & Gyselman (1991) 103 FLR 156

Hendy v. Deputy Child Support Registrar (2001) 164 FLR 236; [2001] FamCA 632

House v R (1936) 55 CLR 499

Hunter v Transport Accident Commission [2005] VSCA 1

In the Marriage of Savery (1990) 99 FLR 346

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18

Parrish & Torrey (SSAT Appeal) (2009) 41 Fam LR 236; [2009] FMCAfam 274

Plaintiff M1/2021 v Minister for Home Affairs (2022) 178 ALD 304; [2022] HCA 17

Tasman & Tisdall (SSAT Appeal) [2010] FMCAfam 425

Wright & Wright (2009) 42 Fam LR 281; [2009] FMCAfam 979

Division: Division 2 General Federal Law
Number of paragraphs: 97
Date of last submission/s: 14 September 2023
Date of hearing: 30 August 2023
Place: Melbourne
Applicant: In person
First Respondent: In person
Second Respondent: Sparke Helmore

ORDERS

MLG 2513 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

DPH22

Applicant
AND:

DPI22

First Respondent

CHILD SUPPORT REGISTRAR

Second Respondent

ORDER MADE BY:

JUDGE CHAMPION

DATE OF ORDER:

20 OCTOBER 2023

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The Applicant is to pay the costs of the Second Respondent in a sum to be fixed if not agreed.

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).

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…

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AGLC
DPH22 v Dpi22 [2023] FedCFamC2G 933
Case
[2023] FedCFamC2G 933
Decision Date

CaseChat Overview and Summary

The case of DPH22 v DPI22 concerns a dispute over the assessment of child support obligations between the parents. The matter was appealed on a question of law by the Father from a decision of the Administrative Appeals Tribunal. The central legal issues involved whether special circumstances existed that would justify a departure from the administrative assessment of child support, whether such a departure would be just and equitable, and whether the departure order was otherwise proper. Furthermore, the case addressed whether a departure order could cover a prospective period of 18 months and whether the calculation of such an order should follow a specific mathematical formula.

The court found that the Tribunal's identification of "special circumstances" was not erroneous. The Tribunal correctly determined that the availability of additional financial resources to the Father, which were not considered in the administrative assessment, constituted "special circumstances" within the meaning of the Assessment Act. The court held that the Tribunal's interpretation of "special circumstances" was consistent with established authorities, which emphasised that special circumstances need not be unprecedented but could be any circumstances "out of the ordinary." Additionally, the court found no error in the Tribunal's consideration of the Father's financial resources and concluded that the Tribunal did not misinterpret the meaning of "financial resources" in s. 117(2)(c)(ia) of the Assessment Act.

The court dismissed the Father's appeal, upholding the Tribunal's decision. The application for a departure order was dismissed, and the Father was ordered to pay the costs of the Child Support Registrar. The court did not find any legal errors in the Tribunal's reasoning or approach to the statutory preconditions for a departure order. Consequently, the application was dismissed, and the Father was required to pay the costs of the Child Support Registrar.

Orders

Orders of the court

MLG 2513 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

DPH22

Applicant

AND:

DPI22

First Respondent

CHILD SUPPORT REGISTRAR

Second Respondent

ORDER MADE BY:

JUDGE CHAMPION

DATE OF ORDER:

20 OCTOBER 2023

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The Applicant is to pay the costs of the Second Respondent in a sum to be fixed if not agreed.

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).

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.

Background

Background to the litigation

In summary, the Father has not proved any error of law and for the reasons set out below the application will be dismissed.BACKGROUND Since 1 January 2021, the parents have been assessed as providing equal shared care to the children. The Mother has been assessed as the payer of child support and the Father as the payee: TD, [1]. On 8 September 2021 the Mother made an application to the CSR for a departure order from the administrative assessment of child support under Part 6A of the Assessment Act. On 18 October 2021 the Father made a cross-application to the CSR for a departure order. On 13 December 2021 a CSR delegate made a departure order (Original Decision; TD, [4]). The details of the Original Decision are not currently material. On 11 January 2022 the Father objected to the Original Decision (TD, [5]). On 23 March 2022 a different delegate of the CSR partly allowed the Father’s objection (Objection Decision; TD, [6]). On 1 April 2022 the Mother applied to the Tribunal for an independent review of the Objection Decision (TD, [7]). The Tribunal conducted a de novo review under Part VIIA of the Child Support (Registration and Collection) Act 1988 (Cth). The Tribunal has all the powers and discretions of the CSR under Part 6A of the Assessment Act : Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), s. 43(1). On 15 September 2022 the Tribunal determined that the Mother was required to pay nil child support for the period from 15 September 2022 to 1 April 2024 (Tribunal Decision). Pursuant to s. 44AAA(1) of the AAT Act, the Father has appealed on a question of law from the Tribunal Decision. THE DECISION UNDER REVIEW It is convenient to summarise the Tribunal’s reasons. The Tribunal identified the “relevant administrative assessments” which had set the Mother’s annual child support liability at the following rates since 1 January 2021 (TD [2]) (up until its hearing on 8 September 2022) (TD, [9]):(a)1 January 2021 to 27 June 2021: $5,732;(b)28 June 2021 to 31 December 2021: $5,776; and(c)1 January 2022 to 26 August 2022: $8,992. The Tribunal structured its reasons by reference to the 3 statutory preconditions for a departure order identified above as follows. It considered:(1)Issue 1 as to whether “in the special circumstances of the case” application of an administrative assessment “would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child … because of the income, property and financial resources of either parent”: s. 117(2)(c)(ia) (TD, [14]–[41]);(2)Issue 2 as to whether it was “just and equitable” as regards the child, the liable parent, and the carer entitled to child support to depart from the administrative assessment (TD [42]–[76]); and (3)Issue 3 as to whether it was “otherwise proper” to depart from the administrative assessment (TD, [77]). Issue 1 – Were there special circumstances of the case which would result in an unjust and inequitable determination?

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Pursuant to s. 44AAA(1) of the AAT Act, the Father has appealed on a question of law from the Tribunal Decision. THE DECISION UNDER REVIEW It is convenient to summarise the Tribunal’s reasons. The Tribunal identified the “relevant administrative assessments” which had set the Mother’s annual child support liability at the following rates since 1 January 2021 (TD [2]) (up until its hearing on 8 September 2022) (TD, [9]):(a)1 January 2021 to 27 June 2021: $5,732;(b)28 June 2021 to 31 December 2021: $5,776; and(c)1 January 2022 to 26 August 2022: $8,992. The Tribunal structured its reasons by reference to the 3 statutory preconditions for a departure order identified above as follows. It considered:(1)Issue 1 as to whether “in the special circumstances of the case” application of an administrative assessment “would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child … because of the income, property and financial resources of either parent”: s. 117(2)(c)(ia) (TD, [14]–[41]);(2)Issue 2 as to whether it was “just and equitable” as regards the child, the liable parent, and the carer entitled to child support to depart from the administrative assessment (TD [42]–[76]); and (3)Issue 3 as to whether it was “otherwise proper” to depart from the administrative assessment (TD, [77]). Issue 1 – Were there special circumstances of the case which would result in an unjust and inequitable determination? The main issue between the parties concerned the “income, property and financial resources of either parent” within the meaning of s. 117(2)(c)(ia). Special circumstances A precondition to a departure order was that there existed “special circumstances of the case”: s. 117(2)(c). The Tribunal found that the availability to the Father of additional financial resources (namely $65,000 by way of repayment of loan capital in FY21–22 which he applied to personal expenses) constituted “special circumstances”. The Tribunal found that the “difference between the amounts required to be paid under the administrative assessments and the amounts that would be required to be paid if the parties’ actual levels of income, property and financial resources [were] used create[d] special circumstances” (emphasis added) and, as a result, a ground for departure existed (TD, [41]). If the Father’s additional financial resources (namely the loan repayments) were taken into account, there would be a substantial reduction in the rate of the Mother’s child support liability. Special circumstances need not be unprecedented. It is sufficient if there are circumstances “out of the ordinary” and the availability to the Father of that financial resource that was not considered in the administrative assessments constituted special circumstances as explained in the authorities: see Gyselman & Gyselman (1991) 103 FLR 156, 164 (TD, [12]). I find there was no error in the Tribunal’s approach to the concept of “special circumstances”.Income, property and financial resources of either parent

Ratio Decidendi

Legal Principle Established

The Father’s 11 “Grounds of Appeal” are as follows:(1)The AAT has erred in law by departing from a standard assessment without establishing a special circumstance as required under sections 98 and 117 of the Child Support Assessment Act 1989 ("CSA").(2)The AAT has erred in law by a finding that it was implied in directions to provide information which was not requested, contrary to s 4(3)(b) of the CSA which requires a limit on interference with privacy.(3)The AAT has erred in law by failing to consider the respondent's financial resources adequately, namely a financial benefit enjoyed by not paying rent as required by ss 98 and 117 of the CSA.(4)The AAT has erred in law by failing to consider the respondent's property adequately as required by ss. 98 and 117 of the CSA by accepting a value of her house that is drastically different from its true value without asking any questions to establish if that estimate was likely to be accurate.(5)The AAT has erred in law by failing to consider all the relevant considerations as required by ss. 98 and 117 of the CSA and case law.(6)The AAT has erred in law by considering irrelevant considerations as prohibited by ss. 98 and 117 of the CSA and case law.(7)The AAT has erred in law by failing to be just and equitable as required by the CSA especially s. 117(1)(ii)(A). (8)The AAT has erred in law by failing to adequately consider the hardship caused by his decision as required by the CSA including s. 98C.(9)The AAT has erred in law by failing to show how the assessment was calculated as held as required in case law.(10)The AAT has erred in law by arriving at a decision which offends logic.(11)The AAT has erred in law by misrepresenting statements made during the hearing.CONSIDERATION I adopt the structure of CSR’s submissions to address the “questions and grounds thematically.”1. Questions 1–4 and 11; Grounds 2, 7 and 11: Did the Tribunal make an error in its finding that the loan repayments by the Company to him was the “income, property and financial resources” of the Father? The Father had loaned the Company he controlled approximately $200,000 (TD, [27]). The Company had repaid $65,000 of the loan capital to the Father in FY21–22 (TD, [33]). The Father placed the repaid loan money into his personal account and used it for his living expenses (TD, [33]). He thereby obtained a financial benefit because he had the personal use of those funds. His position was that this money ought to be quarantined in any assessment of child support obligations because it represented his savings or capital and did not have the character of income. The Father’s complaint may be characterised as a submission that the Tribunal misinterpreted the meaning of the phrase “financial resource[s]” in s. 117(2)(c)(ia) of the Assessment Act. “Financial resource” is a term which has a broad definition and refers to any financial benefit that will enhance the capacity of parents to provide a proper level of financial support to their children: Costa & Fairbank [2010] FMCAfam 39, [24] (Slack FM); see also Bond v Child Support Registrar & Anor [2018] FCCA 422 at [110]–[114] (and the cases there cited).