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…
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- AGLC
- DSK22 v DSL22 [2023] FedCFamC2G 870
- Case
- [2023] FedCFamC2G 870
- Decision Date
CaseChat Overview and Summary
In the case of DSK22 v DSL22, the applicant, who is the father of two children, appeals against a decision of the Administrative Appeals Tribunal (AAT) concerning a child support assessment. The dispute arises from the father's receipt of a significant superannuation payment following the mother's death and the subsequent child support assessment made by the AAT.
The legal issues the court had to decide were whether the AAT erred in its assessment of child support by failing to consider relevant financial resources and whether there was an error of law in the tribunal's approach to determining the appropriate child support amount. The father argued that the tribunal should not have considered certain financial resources, including the superannuation payment, in determining the child support assessment.
The court found that the tribunal did not err in its assessment. The court reasoned that the AAT was entitled to consider the father's financial resources, including the superannuation payment, in determining the child support amount. The court held that the tribunal's decision was in line with the relevant guidelines and legislation, and the tribunal correctly applied the Child Support Guide in its assessment. The court further found that the father's argument about the exclusion of certain financial resources was without merit. The tribunal's findings that the father still had a significant portion of the superannuation payment available at the time of the assessment were supported by the evidence.
The court dismissed the appeal and ordered the father to file written submissions regarding the costs within a specified period, reserving the decision on costs pending further submissions.
The legal issues the court had to decide were whether the AAT erred in its assessment of child support by failing to consider relevant financial resources and whether there was an error of law in the tribunal's approach to determining the appropriate child support amount. The father argued that the tribunal should not have considered certain financial resources, including the superannuation payment, in determining the child support assessment.
The court found that the tribunal did not err in its assessment. The court reasoned that the AAT was entitled to consider the father's financial resources, including the superannuation payment, in determining the child support amount. The court held that the tribunal's decision was in line with the relevant guidelines and legislation, and the tribunal correctly applied the Child Support Guide in its assessment. The court further found that the father's argument about the exclusion of certain financial resources was without merit. The tribunal's findings that the father still had a significant portion of the superannuation payment available at the time of the assessment were supported by the evidence.
The court dismissed the appeal and ordered the father to file written submissions regarding the costs within a specified period, reserving the decision on costs pending further submissions.
Orders
Orders of the court
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.
Background
Background to the litigation
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; andFrom 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.
Evidence
Evidence Before The Court
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; andFrom 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.
Decision
Reasons for decision
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
Ratio Decidendi
Legal Principle Established
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