Ebz20 v Eca20

Case [2022] FCA 1098

FEDERAL COURT OF AUSTRALIA

EBZ20 v ECA20 [2022] FCA 1098  

Appeal from: Oliver v Oliver [2021] FCCA 965
File number: VID 304 of 2021
Judgment of: SNADEN J
Date of judgment: 19 September 2022
Catchwords: ADMINISTRATIVE LAW – appeal from the Federal Circuit Court of Australia – judicial review – child support – where mother successfully sought departure from child support assessment – where father unsuccessfully objected to departure determination – where father appealed objection decision and departure determination to Administrative Appeals Tribunal – appeal dismissed by primary judge – whether primary judge affected by actual bias – whether primary judge erred in failing to make factual findings – whether mutual expectation as to children’s schooling was sufficient to constitute a ground for departure – whether primary judge erred in not concluding that the Tribunal erroneously applied the father’s earning capacity as a ground of departure – factors to be considered in just and equitable determination – appeal dismissed  
Legislation:

Child Support (Assessment) Act 1989 (Cth) pt 6A - ss98B, 98C, 98F, 98S, 117

Child Support (Registration and Collection) Act 1988 (Cth) ss 80, 87, 89

Administrative Appeals Tribunal Act 1975 (Cth) ss 44, 44AAA

Cases cited:

Comcare v Etheridge (2006) 149 FCR 522

Concrete Pty Ltd v Paramatta Design & Developments Pty Ltd (2006) 229 CLR 577

Forbes v Bream (2008) 222 FLR 96

Kolya v Tax Practitioners Board (2012) ATR 474

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507

Oliver v Oliver [2021] FCCA 965

Yildiz v Migration Agents Registration Authority [2021] FCA 1550

Division: General Division
Registry: Victoria
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 65
Date of hearing: 5 July 2022
Counsel for the Applicant: The appellant appeared in person
Counsel for the First Respondent: The first respondent appeared in person
Counsel for the Second Respondent: Ms K Hooper
Solicitor for the Second Respondent: Australian Government Solicitor

ORDERS

VID 304 of 2021
BETWEEN:

EBZ20

Appellant
AND:

ECA20

First Respondent

CHILD SUPPORT REGISTRAR

Second Respondent

ORDER MADE BY:

SNADEN J

DATE OF ORDER:

19 SEPTEMBER 2022

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondents’ costs of the appeal, to be assessed in default of agreement in accordance with the court’s Costs Practice Note (GPN-COSTS).

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

SNADEN J

INTRODUCTION

  1. As its name suggests, the Child Support (Assessment) Act 1989 (Cth) (“the AssessmentAct”) makes provision for the assessment of amounts to be paid by way of child support. Principally, such assessments are calculated administratively via the application of various formulas that are applied to variables such as a parent’s income and expenses. Part 6A of the Assessment Act makes provision for processes that enable departures from that formulaic assessment. It is one such process that is the subject of these reasons.

  2. The appellant and first respondent are the formerly-married parents of…

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AGLC
Ebz20 v Eca20 [2022] FCA 1098
Case
[2022] FCA 1098
Decision Date

CaseChat Overview and Summary

In the matter of Ebz20 v Eca20, the appellant, the father, sought to appeal against decisions made by the Administrative Appeals Tribunal (AAT) in relation to child support assessments. The mother had successfully applied for a departure from the child support assessment, which the father objected to, leading to the AAT's consideration of the matter. The father's appeal against the AAT's dismissal of his objection and the departure determination was heard by the court. The central legal issues revolved around whether the primary judge was affected by actual bias, whether the primary judge erred in not making certain factual findings, and whether the mutual expectation regarding the children's schooling constituted a valid ground for departure.

The court examined whether the primary judge was influenced by actual bias, considering the submissions and evidence presented. The court found no basis for such a claim. Regarding the failure to make factual findings, the court concluded that the primary judge was not obliged to make specific findings on every disputed fact. The court also assessed whether the mutual expectation about the children's schooling was a sufficient ground for departure under the applicable legislation. It determined that the primary judge's reasoning on this point was sound, and thus, the mutual expectation did constitute a valid ground for departure. Lastly, the court found no error in the primary judge's handling of the father's argument regarding the application of his earning capacity as a ground for departure.

In light of the foregoing, the appeal was dismissed, and the appellant was ordered to pay the respondents' costs of the appeal. The specific costs to be paid were to be assessed in accordance with the court's Costs Practice Note if the parties could not agree on the amount. This ruling effectively upheld the AAT's decisions and emphasised the importance of the mutual expectations regarding the children's education in determining the child support assessment.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the respondents’ costs of the appeal, to be assessed in default of agreement in accordance with the court’s Costs Practice Note (GPN-COSTS).

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

This court’s jurisdiction to hear appeals from judgments of the FCCA is well established and not presently controversial. THE DECISIONS UNDER REVIEW Before identifying the scope and subject matter of the appeal, it is convenient to say something about the Tribunal Decision and the FCCA judgment. In doing so, something first should be said about the Mother’s Departure Application. That Departure Application proceeded on the basis (amongst others) that there were special circumstances in which the costs of maintaining the children were significantly affected by reason of their being educated in the manner expected by their parents: Assessment Act, s 117(2)(b)(ii). That reality was the subject of some analysis in the Tribunal Decision. The following passages from that decision (Tribunal Decision, [12]-[13]) bear noting:There is no controversy that from the start of the 2017 school year [the eldest child] has attended Trinity Grammar School and that [the younger child] has attended that school since the start of the 2019 school year. Both [the Father] and [the Mother] signed an "enrolment acceptance agreement form" on 10 January 2017 for [the eldest child] to attend that school. They both signed a similar form on 3 July 2017 for [the younger child] to attend that school.The documents that [the Mother] provided the Tribunal include a copy of a tax invoice dated 24 January 2020 in the amount of $58,001.03 that the school issued to her and [the Father] for the fees payable for both children to attend the school in the 2020 year. Those observations were and remain uncontroversial. The Tribunal proceeded thereafter to summarise the evidence that it had received from the parties. It made the following observations in that regard (Tribunal Decision, [14]-[18]): [The Father’s] evidence to the Tribunal was that it was always his expectation that the children would receive their junior education at the All Hallows Catholic Primary School and then proceed onto Rosebank College for their secondary education. He provided the Tribunal with a copy of an application that he and [the Mother] signed on 4 April 2016 for [the eldest child] to attend that school commencing in 2019. He also provided a copy of a document the school had issued setting out its fee structure for the 2020 school year, which revealed that the fees for a student enrolled in either year 7 or 8 were $7,980. [The eldest child] is presently enrolled in year 8 and [the younger child] in year 6.[The Father] also gave evidence to the Tribunal to the effect that he only agreed to the children attending Trinity Grammar School subject to [the Mother] paying the school fees. His documentary evidence included an affidavit he swore in which he set out a conversation he had with [the Mother] prior to his signing the enrolment acceptance forms. He deposed in that affidavit that during the conversation [the Mother] told him that she had spoken to the children about going to Trinity Grammar School and that they were keen to do so. [The Father] deposed that he then asked [the Mother] about the fees the school would charge, which he understood would "cost a fortune". He deposed that [the Mother] responded by saying the fees were around $25,000 a year. He deposed that after [the Mother] asked him to sign the enrolment form he said:"I don't want to stand in the way of the kids getting the best education possible. I will sign if it is necessary for me to do so to enrol them, as long as you pay all the fees. If I ever start earning a decent income, I'll contribute what I can at my discretion. Is your dad going to help you?"[The Mother’s] evidence to the Tribunal was that she could not recall having that specific conversation with [the Father]. She submitted however, that [the Father] was aware from the fact that he signed the enrolment forms that the children would be attending the school. She said that at no stage did [the Father] tell her that the children should not go to that school.[The Mother] submitted to the Tribunal that in those circumstances, the Tribunal ought to find that it was [the Father’s] expectation that the children would be educated at the Trinity Grammar School. [The Father] submitted to the effect that it was always his expectation that the children would go to Rosebank College and he only acceded to [the Mother’s] request to do otherwise, by sending them to Trinity Grammar School, provided she paid the fees.

Ratio Decidendi

Legal Principle Established

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