DSK22 v DSL22
[2023] FedCFamC2G 870
•29 September 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DSK22 v DSL22 [2023] FedCFamC2G 870
File number(s): BRG 531 of 2022 Judgment of: JUDGE L. TURNER Date of judgment: 29 September 2023 Catchwords: CHILD SUPPORT – Appeal from decision of Administrative Appeals Tribunal - no error of law established – Appeal dismissed - costs of the other party reserved pending written submissions Legislation: Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Child Support (Assessment) Act 1989 (Cth)
Cases cited: Agrippa & Horton (SSAT Appeal) [2010] FMCAfam 1144
Bedell & Kastens & Anor (SSAT Appeal) [2010] FMCAfam 1250
BVG17 v BVH17 (2019) 268 FCR 448
Child Support Registry & Crabbe & Anor [2014] FamCAFC 10
Child Support Registrar & Crowley and Anor [2015] FamCAFC 76
Christian v Donald [2004] FamCa 1171
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Dwyer and McGuire (1993) FLC 92-420
Gyselman and Gyselman [1991] FamCa 93
Haritos v Commissioner of Taxation (2015) 233 FCR 315
HGMZ v Secretary, Department of Social Services [2012] FCA 280
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744
R v Trebilco; Ex parte F S Faulkner & Sons Ltd (1936) 20
Division: Division 2 General Federal Law Number of paragraphs: 70 Date of last submission/s: 15 May 2023 Date of hearing: 15 May 2023 Place of hearing Brisbane Applicant: No Appearance on behalf of the Applicant Respondent: No Appearance on behalf of the Respondent Solicitor for the Other Party: Ms Gehrke of Sparke Helmore ORDERS
BRG 531 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DSK22
Applicant
AND: DSL22
Respondent
CHILD SUPPORT REGISTRAR
Other Party
ORDER MADE BY:
JUDGE L. TURNER
DATE OF ORDER:
29 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.The Amended Notice of Appeal, as to the first review decision of the Administrative Appeals Tribunal made on 24 October 2022, filed by the Applicant on 24 February 2023, is hereby dismissed.
2.Within fourteen (14) days from the date hereof the Other Party file and serve short written submissions as to fixed costs.
3.Within twenty-eight (28) days from the date hereof the applicant file and serve short written submissions in reply.
4.Judgment in respect to costs of the Other Party is hereby reserved.
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 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 L. TURNER:
INTRODUCTION
On 1 December 2022, the applicant filed a Notice of Appeal in regard to a decision made by the Administrative Appeals Tribunal (AAT) on 24 October 2022.
The Notice of Appeal did not set out the grounds of appeal stating in the application that “particulars to be provided in due course” although under the heading Question of Law it is written “Did the AAT failed to properly exercise its jurisdiction?”
The orders sought in the Notice of Appeal were as follows:
(a)Any leave for this appeal to proceed be given.
(b)The decision dated 24 October 2022 (but received by the Applicant on 2 November 2022) of the AAT in proceedings numbered … be set aside.
(c)The matter be remitted to a freshly constituted AAT for re-hearing.
At the first return date on 10 February 2023 leave was given for the applicant to file an amended Notice of Appeal by 20 March 2023 and the appeal was set down for hearing on 15 May 2023.
On 24 February 2023, the applicant filed an amended Notice of Appeal which sought the following orders:
(a)The decision of the AAT in review number … made on 24 October 2022 be set aside.
(b)The Federal Circuit and Family Court of Australia make vary the decision to accord with law under s141(1)(iv) of the Child Support (Assessment) Act 1989 (Cth).
(c)Alternatively, the matter be remitted to the tribunal for a rehearing according to law.
(d)Costs.
(e)Such further or other order as this Honourable deems fit.
In May 2023, the appeal was considered by the court.
EVIDENCE
The applicant relies on the following material:
(a)Amended Notice of Appeal.
(b)The Notice of Decision of the AAT.
(c)The reasons for the decision.
(d)The transcript.
(e)The written submissions.
The respondent relies on the following material:
(a)The written submissions.
The other party (Child Support Registrar) relies on the following material:
(a)The written submissions.
The applicant and the Child Support Registrar are legally represented.
The respondent is self-represented.
A decision has been made on the papers only.
Before considering the appeal is useful to capture the relevant background.
RELEVANT BACKGROUND
The relevant background is as follows:
(a)The applicant is the father of X born in 2005 and Y born in 2010 (the children).
(b)The respondent is the maternal grandfather of the children.
(c)In 2018 the mother passed away.
(d)As a consequence of the mother’s death the applicant received a payment from her superannuation fund of approximately $557,000 which consisted of an amount of approximately $137,000 (the Sum) as the father had the ongoing care of the children that were dependent on the father.
(e)Part of the monies received by the applicant was utilised to pay off the mortgage on the family home (the family home).
(f)By January 2020 X was in the full-time care of the respondent and by May 2021 Y was in the full-time care of the respondent.
(g)Since January 2020 a child support case has been registered with the applicant as the payer and the respondent as the payee.
(h)Initially the applicant was assessed to pay $443 per annum based on adjustable taxable income of $13,708 derived from his 2019-20 taxable income with the assessment increased to $506 per annum for the period from November 2021 to January 2023 based upon an adjustable taxable income of $28,230 derived from the applicant’s 2020-21 taxable income.
(i)In mid-2021 the respondent applied for a change of the administrative assessment on the basis that the applicant had substantial assets and income from investments and the applicant had capacity to work.
(j)At the time of the respondent applying for a change the applicant had sold the family home, acquired another property in Queensland for $180,000 (the Queensland property), relocated to Queensland with his new partner, had an interest in two rental properties and had $280,000 in the bank.
(k)The applicant subsequently incurred legal fees of $82,000.
(l)The applicant subsequently spent another $180,000 in renovating the Queensland property.
(m)In late 2021 a child support decision-maker made a departure determination whereby the applicant was assessed to pay child support to the respondent of $5,200 per annum.
(n)The respondent subsequently objected to that decision.
(o)In early 2022 an objection by the respondent to the decision was allowed in part which provided for the following:
From [mid] 2021 to February 2022 the rate of child support payable by (the applicant) was set at $5,200 per annum; and
From February 2022 to March 2024, (the applicants) adjusted taxable income was set at $39,556
(p)In March 2022 the respondent applied to the AAT for an independent review of the child support decision.
(q)In early 2022 the applicant sold one rental property for $225,000 and received net sale proceeds of $50,347.
(r)In early 2022 the applicant sold the other rental property for $410,000 and received net sale proceeds of $123,206.
(s)In May 2022 final parenting orders were made for the respondent to have sole parental responsibility for the children.
(t)In October 2022 the application for review was heard where the applicant and the respondent gave evidence but the Child Support Registrar did not participate in the hearing.
(u)The respondent subsequently provided additional documents which were responded to by the applicant.
(v)As at the date of hearing the review the applicant held the following assets:
(i)The Queensland property which had been renovated by the applicant at a cost of $180,000.
(ii)Motor Vehicle 1 which the applicant values at $40,000.
(iii)Bank accounts of $92,000.
(iv)Motor Vehicle 2 worth $3000.
(v)Household contents of $20,000.
(vi)Superannuation accounts totalling $556,292.
On 24 October 2022 the application for review was determined and the following decision was handed down by a Member of the AAT:
The tribunal set aside the decision under review and, in substitution, decided that there is to be a departure determination, such that (the applicant) is liable to pay child support of $18,000 per annum from [mid] 2021 until the date [X] ceases to be an eligible child, and from then $9,000 per annum until the child support case ends
On 1 December 2022 the appeal was lodged followed by the amended appeal filed in February 2023.
On 15 May 2023 the appeal was heard.
RIGHT TO APPEAL
This is an appeal from the decision of the AAT dated 24 October 2022 in review number … pursuant to section 44AAA Administrative Appeals Tribunal Act 1975.
Section 44AAA(1) allows a party to appeal to the Federal Circuit and Family Court of Australia (Division 2) on a question of law from any decision of the AAT.
As stated in BVG17 v BVH17 (2019) 268 FCR 448 and HGMZ v Secretary, Department of Social Services [2012] FCA 280, the court in determining such an appeal is exercising original jurisdiction limited to issues on a question of law only as an appeal does not constitute a rehearing of the matter on its merits.
The Full Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 stated that the nature of the task of the court is clear; namely to leave to the Tribunal fact decisions as to facts and to only interfere where the identified error is one of law.
In order for the appeal to be considered on a question of law, the question of law must, according to Haritos v Commissioner of Taxation (2015) 233 FCR 315, be stated with sufficient precision.
The Full Court in Child Support Registrar & Crowley and Anor [2015] FamCAFC 76 at [24] notes that:
A consequence of the confined nature of appeals from the Tribunal to the FCCA is a requirement that the grounds of appeal to that court be drawn with particular precision and with a precision which bears that restriction firmly in mind.
As to what is meant by the term “on a question of law” was explored by Flint J in HGMZ where at [13] it is stated:
What is “on a question of law” for the purposes of section 44 of the AAT Act has been analysed in many cases and includes:
1.Whether the AAT has identified the relevant legal test…
2.Whether the AAT has applied the correct test…
3.Whether there is any evidence to support a finding of a particular fact… and
4.Whether facts found for within a statute properly construed…
This list in by no means exhaustive…
Citing the decision of Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744 the Full Court in Child Support Registry & Crabbe & Anor [2014] FamCAFC 10 gave examples of what constitutes a question of law such as:
(a)The question of whether there is evidence to support a finding of fact, or an influence drawn from findings of fact is a question of law.
(b)The making of a finding of fact or the drawing of inference in the absence of evidence is an error of law.
The Full Court in Crabbe further gave examples of what does not constitute an error in law:
(a)A wrong finding of fact is not an error of law.
(b)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.
Sexton FM (as her Honour was then known) in Bedell & Kastens & Anor (SSAT Appeal) [2010] FMCAfam 1250 adopted the decision of Halligan FM (as his Honour was then known) in Agrippa & Horton (SSAT Appeal) [2010] FMCAfam 1144 where at [10] a finding was made that:
The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.
The Full Court further stated in Crabbe that a judicial review is not to be overzealous in seeking to find inadequacy of reasoning by an administrative decision maker as a review of the reasons of an administrative decision-maker must not be turned into a reconsideration of the merits of the decision.
GROUND OF APPEAL
The Amended Notice of Appeal set out three grounds of appeal.
However, in written submissions the applicant relies only on the first ground of appeal namely:
The tribunal erred by using the sum as a basis for calculating the level of child support to which the father would be liable.
The Sum being referred to in the ground of appeal is the sum of $137,000 received by the father from the mother’s superannuation fund following the death of the mother in 2018.
QUESTIONS OF LAW
The Amended Notice of Appeal set out four questions of law but in written submissions the applicant is now relying on the following two questions of law:
1.Can the sum of money, which was expended before the application of the child support, be used to calculate the level of child support for which the father is liable under s 98S of the Child Support (Assessment) Act 1989 (Cth) (“the Act”)?
2.In making a finding of unreasonableness of the father’s expenditure, did the Tribunal err by failing to take into account the fact that the discharge of mortgage was partly for the benefit of the children?
HAS THERE BEEN AN ERROR OF LAW?
Findings of the tribunal
Relevant to this appeal set out below is a summary of findings of the Member of the AAT in the Reasons for Decision:
(a)The administrative assessment being considered for departure is that made initially made against the applicant of $443 per annum and $506 per annum [11] and [12].
(b)The consideration will be guided by the principal contained in Gyselman and Gyselman [1991] FamCA 93 whereby there must be “special circumstances” and this is the approach to be adopted when interpreting and applying the particular ground in section 117(2) Child Support (Assessment) Act 1989 [13].
(c)The respondent relied upon the ground for departure (commonly referred to as Reason 8A by the child support agency) in section 117(2)(c)(ia):
That, in the special circumstances of the case, application in relation to the child under the provisions of the Act relating to administrative assessment of child support 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, earning capacity, property and financial resources of either parent or the child [14]
(d)The Member was satisfied that the administrative assessment of $443 per annum and $506 per annum is unjust and inequitable given the financial resources available to the applicant [21].
(e)The payment from the superannuation fund included a payment of approximately $137,000 to assist the applicant to financially support his children until their majority [22].
(f)The Member was satisfied that the applicant having the benefit of the $137,000 in circumstances where the father no longer has the care of the children and contributes little to their support, is out of the ordinary and constitutes special circumstances [22].
(g)Therefore, the ground for departure set out in section 117(2)(c)(ia) has been made out in respect to the applicant’s income, property, and financial resources.
(h)Regard must be had to the variety of factors set out in section 117(4) in considering whether a departure would be just and equitable. The Member identified the needs of the children, the applicant’s necessary commitments and any hardships that would be caused by departing, or not departing from the statutory formula were factors to be taken into account in this matter [24].
(i)As to the needs of the children, there was no evidence that the children had any income, property, financial resources or earning capacity, the children attend public school and (X) is undergoing orthodontic treatment with the Member preferring the evidence of the orthodontist over that of the applicant; that this treatment is necessary and not cosmetic [25], [26] and [27].
(j)The evidence supports that the respondent spends $443 per week ($23,036 per annum) to support the children [29].
(k)As to the respondent, as a non-parent carer then the only matter the Member was required to consider under section 117(4) was any hardship to the respondent from making or refusing to make a departure determination [30].
(l)The respondent and his wife rely on age pensions of $371 per week and the Member made findings that their expenses, including the costs of supporting the children, exceeded their income and that the respondent was accruing debt by drawing down on an overdraft to make ends meet [31].
(m)The member was satisfied that not making a departure determination to increase the father’s liability to pay child support would cause the respondent financial hardship [31].
(n)As to the applicant, he receives a carer payment and carer allowance and has intermittent periods of employment and expressed a wish to become self-employed [33].
(o)It was acknowledged by the Member that the applicant will have a tax liability, as yet unknown, for the capital gains made on the sale of his investment properties which realised $170,000 [34].
(p)The applicants Statement of Financial Circumstances disclosed that he owns outright his home in Queensland which the applicant valued at $180,000. The Member considered this value to be a little low considering that the applicant had spent considerable funds realised from the sale of the family home of $180,000 to renovate the property [35].
(q)The applicant owns Motor Vehicle 1 valued at $40,000, $92,000 in bank accounts as of late 2022, Motor Vehicle 2 worth $3,000, household contents of $20,000 and $556,292 in two superannuation accounts [35].
(r)The Member was not persuaded that section 117(7B) was satisfied (earning capacity) and made a finding that the applicant cannot be assessed as having a capacity to earn [37].
(s)The applicant has the benefit of self-support amount of $26,000-$27,000 per annum which was not disputed as being sufficient to meet the applicant costs for his own support. The applicant lives with his partner who receives her own payment from Centrelink and a finding was made by the Member that the applicant has no duty to maintain any other person or child [38].
(t)The Member made a finding that they were satisfied that it would be just and equitable to make a change to the child support assessment [40].
(u)In accordance with section 117(5) the Member was satisfied that the departure determination being contemplated was otherwise proper [41], [42] and [43].
(v)Section 4 sets out the objects of the act which include that parents have a primary duty to maintain a child, that duty has priority over all commitments other than necessary for self-support, the level of financial support to be provided by the parents to children should be determined in accordance with legislatively fixed standards and the level of financial support is to be determined according to the parent’s capacity to provide financial support [44].
(w)The Member made a finding that there was a ground for departure and that it would be just and equitable and otherwise proper to make a departure determination [45].
(x)Section 98S describes the determinations that may be made if a decision is made to depart from the administrative assessment of child support [45].
(y)The Member made a finding that the applicant has financial resources available that make the administrative assessment of child support unfair and conclude that the applicant be required to contribute more to the support of the children [46].
(z)The Member made a finding that the applicant cannot be permitted to abrogate that responsibility to the children’s grandparents or the community by means of a family tax benefit entitlement [46].
(aa)The Member made a finding that the applicant’s duty to support the children has precedent over all of the applicant’s other commitments, excluding necessary costs for his own support [46].
(bb)The Member made a finding that it was not reasonable for the applicant to prioritise home renovations over his duty to support the children [46].
(cc)The Member made a finding that based on the $137,000 paid to the applicant from the superannuation fund because of having two dependent children in his care, that from mid-2018 this amount was available to the applicant to support X for another 5 years and Y for another 10 years, equating to $9000 per child per annum [47].
(dd)The Member made a finding that the departure determination should commence from mid-2021 at $9000 per child per annum [48].
(ee)The Member made a finding that this will require the applicant to pay $18,000 per annum from 2021 until X ceases being ineligible child (which will occur in 2023) then $9000 per annum until Y ceases to be ineligible child (which will occur in 2028) at which point the child support assessment will end [49].
(ff)The Member made a finding that the departure determination remain in place until the case ends [50].
(gg)The Member acknowledges that the payment of $18,000 per annum on the applicant’s current income will be difficult but made a finding that the applicant has assets, other than his home, that could be sold if necessary [51].
(hh)The Member made a finding that regard has been had to the financial hardship that the decision will bring to the applicant but that this hardship is not a barrier and that other factors weigh more heavily in favour of making a departure determination, such as the applicant’s obligation to support the children and issues of fairness and hardship regarding the children and the respondent [53].
(ii)The member reached the conclusion that the decision appropriately balances issues of fairness and hardship for the children, the respondent, and the applicant [55].
Applicant’s particulars set out in amended notice of appeal
The particulars pertaining to the ground of appeal as set out in the amended Notice of Appeal are:
1.The evidence was that the father received the sum because he had the care of the children. He used the sum to discharge the mortgage on the family home while he had the care of the children.
2.This was well before the application to change the child support assessment was made or even contemplated.
3.The tribunal used the sum as a basis for calculating the amount of child support for which the father would be liable.
4.The tribunal fell into error because it took into account an irrelevant consideration in the calculation of the quantum of child support for which the father would be liable.
Applicant’s argument
The applicant relies on the following written submissions:
(a)The tribunal erred by using the Sum as a basis for calculating the amount of child support payable [15].
(b)The tribunal ignored the fact that the Sum was used to pay off the mortgage while the applicant has the care of the children [15].
(c)The basis for calculating the amount of child support incorrectly took into account an amount of money (namely the Sum) that no longer exists [15].
(d)The Sum received by the applicant was taken into account in error when setting the child support because it is irrelevant to the departure determination [17].
(e)A decision of the tribunal may be invalid if the tribunal takes into account irrelevant considerations [18].
(f)Section 98S confers a broad discretion that is confined only by the subject matter, scope, and purpose of the act, the construction of which must be undertaken to determine the limitations on the facts to be considered when making a determination under the provision [18]
(g)The applicant submits that the primary duty of parents is to maintain the children and the manner in which the act attempts to achieve this is by assessing an amount of child support the parent must pay for a proper level of financial support for the child [27].
(h)The proper level of financial support is determined by reference to the parents’ capacity to provide financial support which is arrived at following an examination of the parents’ income, property, and financial resources [27].
(i)Therefore, the act requires that a determination under section 98S should not be more than that the parent has the capacity to provide taking into account the parents income, property and financial resources [27].
(j)The tribunal’s error is twofold; firstly the Sum should not be used as a basis for determination under section 98S as it is not a financial resource of the applicant because it no longer exists and secondly the tribunal failed to take into account the fact that the Sum was spent to at least indirectly benefit the children [28].
(k)The fact that the Sum was used to pay off the mortgage over the family home was a relevant matter that should have been considered by the tribunal [29].
(l)The tribunal did not consider this fact in the reasons and applied hindsight reasoning and criticisms in relation to the applicant’s use of funds following the expenditure of the Sum, as opposed to taking into account what the appellant did with the Sum at the time of its disposition [29].
Respondent’s argument
The respondent relies on the following written submissions:
(a)A component portion of the substantial amount of superannuation the applicant received upon the mother’s death ($137,000) was entrusted to the applicant for the care of the children until their maturity ([2] under heading Question of Law).
(b)These monies were used by the applicant to discharge the mortgage on the family home and pay down the mortgages on the investment properties which converted those funds to equity and removed significant mortgage commitments from the family budget ([2] under heading Question of Law).
(c)This would have been reasonable had the children remained in the care of the applicant but as this did not happen then the children only benefited from a proportion of the Sum for the period that the children remained in the care of the applicant ([3] under heading Question of Law).
(d)When the Sum was converted back to cash with the sale of the family home both children were in the care of the respondent and the applicant chose not to provide any benefit for the children beyond the minimum child support obligations derived from the applicant low taxable income status ([4] under heading Question of Law).
(e)The Sum and obligations still existed after the sale of the family home by which time the children would no longer in the applicant’s care ([7] under heading Question of Law).
(f)The Sum intended for the children’s support from the mother’s superannuation did always exist ([1] under heading Conclusion).
(g)The use of the Sum as a guide for determining child support was not irrelevant or unreasonable ([2] under heading Conclusion).
Child Support Registrar’s argument
The Child Support Registrar relies on the following written submissions:
(a)The tribunal’s decision is not affected by any errors of law and the appeal should be dismissed with costs [2].
(b)It is accepted that the questions of law raised by the applicant properly invoke the court’s jurisdiction [24].
(c)For a matter to constitute an irrelevant consideration, the consideration must be one that, either expressly or by implication, a decision-making is forbidden or prohibited from taking into account [28].
(d)The tribunal correctly took into consideration the applicant’s receipt and expenditure of the superannuation funds including the Sum of $137,000 having regard to the Child Support Guide (CSG) [29].
(e)Although the CSG is policy that is not binding on the tribunal it is applied unless there is a cogent reason not to do so [29].
(f)In accordance with section 117(2)(c)(ia) and section 117(4)(d) the tribunal was obliged to consider the applicant’s income, earning capacity property and financial resources [29].
(g)Income, earning capacity, property and financial resources which do not necessarily form part of the parent’s taxable income can be added to or excluded from a child support assessment [29].
(h)In some cases, a parent might have substantial property and assets but a low income used in the child support assessment and such substantial property and assets as well as income can be considered when deciding the appropriate rate of child support to be paid [29].
(i)Assessment of child support is intended to ensure that parents contribute to the day-to-day needs of the child and where a parent is in a different situation to a wage and salary earner, for example then a decision will be made based on whether the parent has the capacity to restructure their financial affairs to provide current financial support for the child [29].
(j)A lump sum received by a parent may be taken into account in deciding whether the assessment should be changed [29].
(k)The applicant’s evidence to the tribunal was that he used the Sum of $137,000 to pay off the mortgage on the family home and that these funds were realised when he sold the family home and moved to Queensland with approximately $280,000 remaining after purchase of his new home. The remaining funds were then expended at least in part on renovations and legal fees [30].
(l)The applicant’s evidence to the tribunal is that he does not have any of the funds remaining but ultimately the tribunal found that at the time of the change of assessment application the applicant still had $225,000 of the funds although that amount has since reduced [30].
(m)The argument that the Sum is not a financial resource is misconceived. The CSG confirms that parent is not able to claim that they do not have financial sources because the funds have been converted or tied up in real estate or other assets [31].
(n)As to the Sum being used to repay the household mortgage to the benefit of the children, the CSG provides that is not acceptable for a parent to claim that they have invested financial or capital resources in the expectation that they will support the child in the future [32].
(o)The primary consideration is whether the parent is making a contribution to the present day-to-day needs of the child [32].
(p)The tribunal engaged with the applicant about his use of the Sum and ultimately made findings that were open to it for the reasons given by the tribunal [33].
(q)The applicant’s contentions are without merit and the appeal should be dismissed [33].
CONCLUSION
This matter came before the Tribunal pursuant to section 98B Child Support (Assessment) Act 1989.
The tribunal came to the conclusion that a departure determination was required because pursuant to section 117(2)(c)(ia) the administrative assessment made for the children is unjust and inequitable because of the income property and financial resource of the applicant.
In reaching this determination the tribunal considered whether the departure would be just and equitable pursuant to section 117(4) and whether the determination pursuant to section 117(5) was otherwise proper.
The tribunal concluded that the departure is just and equitable and otherwise proper.
A determination was subsequently made by the tribunal pursuant to section 98S and in determining the child support payable by the applicant the calculation was assessed taking into account the Sum received by the applicant of $137,000 from the mother’s superannuation fund.
I find that on its face the Reasons for Decision by the member is a comprehensive decision which addresses the facts in detail and provides reference to the correct legislative pathway in reaching a conclusion as to a departure determination as to child support payable by the applicant to the respondent for the children.
So, what is the error of law in this matter?
Although not specifically articulated the applicant’s submissions appear to raise three errors of law in this matter which will be addressed individually.
The first error of law is that the tribunal took into account an irrelevant consideration which renders the decision of the tribunal invalid (R v Trebilco; Ex parte F S Faulkner & Sons Ltd (1936) 20 and section 5(2)(a) Administrative Decisions (Judicial Review) Act 1977).
The irrelevant consideration being referred is consideration of the Sum of $137,000 which is money which no longer exists.
As to what amounts to an irrelevant consideration was considered by the High Court in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 where it was held that:
In the context of judicial review on the ground of taking into account irrelevant considerations, this court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion is similarly unconfined, except insofar as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard
The High Court further stated:
Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the Court setting aside the impugned decision and ordering that the decision be re-exercise according to law. A factor might be so insignificant that the failure to take into account could not have materially affected the decision… a similar principle has been enunciated in cases where regard has been had to irrelevant considerations in the making of administrator’s decision
Section 98C(2) and section 117(2)(c)(ia) as referred to in CSG at 2.6.14 allow for the income, property and financial resources of a payer to be taken into account if, in a special circumstances of the case, the assessment of child support would result in an unjust and inequitable level of financial support for the child.
I find that the consideration of the Sum is not an irrelevant consideration and I make this finding based on the following:
(a)Having read the relevant sections and the CSG I find no reference to implied limitations on the factors to which the tribunal could have legitimate regard to.
(b)In order to consider the income, property, and financial resources of the applicant it was necessary for there to be a thorough understanding as to how and why the applicant is in the financial position that he is in today as much has happened since the children have been in the care of the respondent.
(c)Whilst the Sum does not exist in its original form that money allowed the applicant to pay out the mortgage on the family home and upon the sale of the family home to acquire and renovate the Queensland home.
(d)The Sum therefore is a relevant consideration for the tribunal to take into account in making a determination as to departure.
(e)Therefore, there has been no irrelevant consideration which pursuant to section 5(2)(a) Administrative Decisions (Judicial Review) Act 1977 would justify the setting aside of the tribunal’s decision.
Therefore, I find that this error of law has not been established.
The second error of law according to the applicant is that the tribunal ignored the fact that the Sum was used to pay off the mortgage while the applicant had the care of the children and therefore the children benefited from how the Sum was used.
The legislation is clear in its objects and principles for the need for children to receive financial support from parents to meet their day-to-day needs and this has been reiterated by such authorities as Dwyer and McGuire (1993) FLC 92-420.
The legislation does not provide for the ability of parents to invest monies to make available to children at a later future date.
At 2.6.14 CSG under the heading “can property or financial resources be invested now to provide for a future capacity to pay child support?” states:
In some cases a parent, may have financial or capital resources, may explain that they should be able to invest those resources now in the expectation that they will be available to support the child in the future or be made available to the child on inheritance… it is not sufficient for a parent to say that they are in a different situation to a wage and salary earner, for example, because their income has been converted to, or is tied up in, real estate or other assets. In these cases, the Registrar will decide whether the parent has the capacity to restructure their financial affairs to provide current financial support for the child
Although the CSG is not binding on the tribunal it is to be applied unless there is a cogent reason not to do so (Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).
I find that the second error of law has not been established based on the following:
(a)The tribunal was aware and did not ignore the fact that the Sum had been utilised by the applicant to payout the mortgage on the family home.
(b)Any benefit that the children had from the discharge of the mortgage was limited as the children shortly thereafter were placed in the primary care of the respondent.
(c)The applicant has had the greater benefit of the Sum.
(d)It has never been proposed by the applicant that the children would benefit in the future from how the Sum was used by the applicant.
(e)There is no evidence to support that the discharge of the mortgage over the family home has addressed the objects of the act, as submitted by the applicant.
(f)In any event the applicant as a payer has an obligation to contribute to children in their day-to-day needs.
(g)The tribunal has appropriately followed the legislation and applied the CSG in an appropriate manner with there being no cogent reason given as to why the CSG should not be applied.
(h)The tribunal through sound reasoning has made findings that the administrative assessment is not sufficient to meet the day-to-day needs of the children.
Therefore, I find that this error of law has not been established.
The third error of law is that the Sum cannot be considered a financial resource because it no longer exists.
I find this argument to be misconceived because whilst the Sum may not exist in its original form, the money that made up the Sum still exists in the property and financial resources subsequently acquired by the applicant.
I find that the third and last error of law therefore has not been established.
Lastly, I refer to the Full Court decision of Christian v Donald [2004] FamCa 1171, which was provided to the court by the applicant after the conclusion of the hearing of the appeal.
The authority was provided on the basis that the Full Court suggested that it may be appropriate to ignore unliquidated evidence in a home.
I was referred to [67] which reads:
…it might be appropriate to ignore an unliquidated equity in modest accommodation in circumstances where the liable parent has little if any borrowing power
I fail to understand the relevance of this decision in the three proposed errors of law and as such this authority has not been considered.
As no errors of law have been established then I find that the appeal be dismissed.
COSTS
The other party is seeking costs in a fixed term.
Directions have been made for the other party and the applicant to file and serve written submissions as to costs.
Directions have not included the respondent as they are a self-represented litigant.
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of Judge L. Turner. Associate:
Dated: 27 September 2023
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