EIZ20 v Child Support Registrar

Link copied
Case Copied 30 min read

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

EIZ20 v Child Support Registrar [2023] FedCFamC2G 637

File number: MLG 3594 of 2020
Judgment of: HER HONOUR JUDGE C.E. KIRTON KC
Date of judgment: 20 July 2023 
Catchwords: CHILD SUPPORT – extension of time application – judicial review of a decision of the Administrative Appeals Tribunal – whether there are grounds for departure – whether the Tribunal has a duty to inquire – whether the Tribunal must provide reasons for proceeding without a hearing - no jurisdictional error – application dismissed – costs ordered.
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) ss 34J, 44 and 44AAA

Child Support (Assessment) Act1989 (Cth) s 98F

Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 r 27.03
Cases cited:

Bushell v. Repatriation Commissioner (1992) 175 CLR 408

Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 289

Child Support Registrar & Crabbe & Anor [2014] FamCAFC 10

Dalgetty & Dodd & Anor [2020] FCCA 1836

Dwyer & McGuire (1993) FamCA 82

Emerson v Emerson & Ors [2018] FCCA 812

Minister for Immigration and Citizenship v Le and Others (2007) 164 FCR 151

Minister for Immigration and Citizenship v SZIAI [2009] HCA 39

Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41

P v Child Support Registrar [2015] FCA 116

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152

Stiglec and Stiglec (Child support) [2020] AATA 4287

Vick & Hartcher (1991) FamCA 79
Division: Division 2 General Federal Law
Number of paragraphs: 82
Date of last submission: 21 September 2021
Date of hearing: 16 September 2021 
Place: Melbourne (by videoconference)
Solicitor for the Applicant: PLS Lawyers
Solicitor for the First Respondent: Sparke Helmore
The Second Respondent: No appearance

ORDERS

MLG 3594 of 2020

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

EIZ20

Applicant
AND:

CHILD SUPPORT REGISTRAR

First Respondent

EJO20

Second Respondent

order made by:

HER HONOUR JUDGE C.E. KIRTON KC

DATE OF ORDER:

20 july 2023

THE COURT ORDERS THAT:

1.The application by the Applicant for an extension of time to file the Notice of Appeal (Child Support) filed on 29 September 2020 and amended on 15 December 2020, is dismissed.

2.The Notice of Appeal (Child Support) filed on 29 September 2020 and amended on 15 December 2020, is dismissed.

3.The Applicant pay the First Respondent’s costs fixed in the sum of $7,200.

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…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read EIZ20 v Child Support Registrar and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2023] FedCFamC2G 637
Decision Date

CaseChat Overview and Summary

EIZ20, the Mother, appealed a decision of the Child Support Registrar (First Respondent) to the Family Court of Australia. The Mother sought a review of the First Respondent’s decision to disallow her objection to the refusal of a departure application under the Child Support (Assessment) Act 1989 (Assessment Act). The Father (Second Respondent) did not participate in the proceedings. The Mother sought an extension of time to file her Notice of Appeal and for leave to file an Amended Notice of Appeal. The legal issues before the court were whether time should be extended under r 27.03 of the 2021 Rules and whether the Amended Notice of Appeal has reasonable prospects of success. The court considered the delay in filing, the explanation for the delay, whether any prejudice would be caused to the other parties if an extension of time was granted and whether the Amended Notice of Appeal has reasonable prospects of success. The court found that the delay was not significant and there was no prejudice to the First Respondent if the extension were to be granted. The court also found that the Amended Notice of Appeal had reasonable prospects of success.

The court found that the Mother had not provided evidence of the email correspondence that she claimed was returned due to lack of information. The court noted that the Mother had filed the Notice of Appeal within 28 days but it was returned due to lack of some information. The court also noted that the Mother had not provided evidence of the relevant email correspondence. The court found that the Mother had not provided sufficient evidence to support her claim that she was prevented from filing in time due to the second Covid lockdown. The court found that the Mother had not acted with due diligence and she did not require redress for the Tribunal’s error. The court found that it was not in the interests of justice to extend time. The court dismissed the Mother’s application for an extension of time to file her Notice of Appeal and for leave to file an Amended Notice of Appeal.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

I have determined that time should not be extended pursuant to r 27.03 of the 2021 Rules for the Mother to file the Notice of Appeal as amended on 15 December 2020.BACKGROUND The First Respondent filed written submissions on 8 September 2021 (First Respondent’s Submissions). The First Respondent’s Submissions accurately summarise the factual history of this matter at [7] to [10]. The Court adopts these submissions as its own. The First Respondent’s Submissions provide, with some amendments, as follows. The Mother and Second Respondent (Father) are the parents of twin children (Children), a son and a daughter, who were aged sixteen (16) at the date of the Tribunal’s Decision. The son is in the 100 per cent care of the Father and the daughter is in the 100 per cent care of the Mother. Court orders are in place that provide for the Children to spend time with the other parent during school holidays and on Sunday nights in accordance with the Children’s wishes. The Children’s child support case was registered for collection with the First Respondent on 5 January 2018. The Assessment Act provides for an administrative assessment of the child support payable by one parent to the other. It uses a statutory formula which contains variables such as the parents’ adjusted taxable incomes, the number and ages of the children and their percentages of care. An administrative assessment (Assessment) for the parents in relation to the Children determined the following:(a)For the period of 1 November 2018 to 31 October 2019:(i)The income figure for the Mother was $50,050 based on her 2017/2018 adjusted taxable income (ATI);(ii)The income figure for the Father was $44,188 based on his 2017/2018 ATI; and(iii)The Mother was liable to pay an annual rate of child support of $844.(b)For the period 1 November 2019 to 31 January 2021:(i)The income figure for the Mother was $62,486 based on her 2018/2019 ATI;(ii)The income figure for the Father was $56,807 based on his 2018/2019 ATI; and(iii)The Mother was liable to pay an annual rate of child support of $811. On 17 April 2019 the Mother lodged a departure application (Departure Application) under Part 6A of the Assessment Act in which she claimed that the Assessment was unfair based on various reasons provided in the Assessment Act (Reasons). On 2 August 2019 an officer of the First Respondent refused the Departure Application upon finding that none of the Reasons claimed by the Mother established grounds for departure from the Assessment (Departure Decision). On 26 August 2019 the Mother lodged an objection to the Departure Decision. The Mother’s objection was disallowed by the First Respondent on 23 October 2019 (Objection Decision). The Mother applied to the Tribunal for review of the Objection Decision. On 29 November 2019 the Mother lodged an estimate of income of $19,996 which resulted in the Father becoming liable to pay child support to the Mother of $4,067 per annum until 20 June 2020.TRIBUNAL’S DECISION

Evidence

Evidence Before The Court

No arguable error of law has been identified by the Mother in Ground 1.Did the Tribunal fail to consider evidence? Ground 2 is similar to Ground 1 in that the Mother alleged that the Tribunal failed to consider certain evidence and failed to comply with a duty to inquire. The Mother’s Solicitor submitted that the Tribunal has powers to find any other evidence, instead of merely finding that there is no evidence to substantiate the Reasons put forward by the Mother.[31] The particulars of Ground 2 identify certain evidence that the Mother alleged the Tribunal should have inquired further about. The Mother’s Submissions at [54] advanced that “it is crystal clear that the Tribunal have considered that the reasoning has not been proved by the [Mother] due to a lack of evidence, lack of information produced before the Tribunal”. The Mother contends in Ground 1 that the Tribunal erred in making this finding by not providing the Mother with an opportunity to further present her case.[31] Transcript P19:L13-16. The First Respondent submitted that Ground 2 contained no evidence of legal error and relied on the same submissions as Ground 1.[32] The First Respondent’s Solicitor noted that Ground 2 also included a no-evidence challenge and submitted that it was not clear which of the Tribunal’s findings the Mother claimed are vitiated by a failure to consider evidence and no such findings are apparent in the Tribunal’s Decision.[33][32] First Respondent’s Submissions, [43]-[47]; Transcript P18:L36-37.[33] Transcript P18:L38-42. The Mother’s claim that the Tribunal “determined against the [Mother] on the basis of insufficient information or material before the Tribunal” has no basis.[34] The Mother misinterprets the Tribunal’s Decision and has not identified which findings were made without an evidential basis. The Tribunal concluded that the evidence before it was insufficient to establish the Mother’s claims and prove that there were grounds for departure from the Assessment. The Mother’s contention that the Tribunal erred by not investigating or holding a hearing where omissions and lack of information would have been addressed, cannot be accepted. The Tribunal considered all of the information before it to assess the Reasons under review and, as discussed in relation to Ground 1, the Tribunal was adequately satisfied that it could determine the issues on review with the information before it.[34] Mother’s Submissions, [30]. I accept the First Respondent’s submissions in relation to each particular of Ground 2 as follows below.[35][35] First Respondent’s Submissions, [43]-[48]. Particular A was assessed in [41] of the Tribunal’s Decision. The Tribunal adopted the evidence given by the Mother and the Court orders. The Tribunal had no further duty to inquire. Particular B cited Stiglec and Stiglec (Child support) [2020] AATA 4287 (Stiglec) but the Mother has not explained how Stiglec is relevant to this case The First Respondent differentiated Stiglec from this case as a Tribunal hearing was held in Stiglec. The Tribunal conducted a review based on new evidence which was before the Tribunal and which was not before the First Respondent.

Decision

Reasons for decision

On 29 November 2019 the Mother lodged an estimate of income of $19,996 which resulted in the Father becoming liable to pay child support to the Mother of $4,067 per annum until 20 June 2020.TRIBUNAL’S DECISION The First Respondent’s Submissions accurately summarise the Tribunal’s Decision at [12] to [29]. The Tribunal’s Decision, with some amendments, was as follows. The Tribunal conducted a directions hearing with the Mother on 2 April 2020. The Father did not wish to participate in the directions hearing. Both parties provided additional documents in accordance with the Tribunal’s directions. Both parties subsequently requested that the proceeding be determined “on the papers”: Tribunal’s Decision [10] and [11]. On 11 August 2020 the Tribunal affirmed the Objection Decision upon finding that there were no grounds to change the Assessment under s 98F of the Assessment Act. The Tribunal assessed the Reasons the Mother provided for a change to the Assessment pursuant to the Assessment Act: Tribunal’s Decision [80] to [83]. For Reason 1, the Mother did not establish that the costs she incurred to spend time with or communicate with her son during a child support period were at least five percent of her adjusted taxable income for the period. The Tribunal calculated five percent of the Mother’s income for the relevant periods and was prepared to accept various taxi receipts provided by the Mother relating to transporting her son. However, the fares and costs to the Mother amounted to less than five percent of the Mother’s taxable income: Tribunal’s Decision [21] to [27]. For Reason 2, the Mother did not show that the costs of maintaining the Children were significantly affected by their special needs. The Tribunal accepted that the son had cerebral palsy and required 24 hour care, but it was not satisfied that the Mother was incurring significant costs in relation to her son’s special needs. The Tribunal also considered the evidence before it in relation to the daughter, but was not satisfied that the evidence established that she had special needs: Tribunal’s Decision [28] to [36]. For Reason 3, the Mother did not show that the costs of maintaining her daughter were significantly affected by the costs of her education or training. The Tribunal accepted that the daughter was attending a private school but found that there was no mutual intention by the Mother and Father that the daughter be educated in a private school: Tribunal’s Decision [37] to [42]. For Reason 5, the Mother did not show that the Assessment was unfair because she had given money, goods or property to the Children, the Father or a third party for the benefit of the Children. The Tribunal found that the Mother had not claimed to have made any specific payments or transfer of property nor had she provided any evidence in that regard: Tribunal’s Decision [43] to [46]. For Reason 7, the Mother did not demonstrate that her capacity to provide financial support to the Children was significantly reduced due to her self-support expenses. The Tribunal accepted that the Mother was being treated for various medical conditions, but was not satisfied on the evidence before it that her medical expenses were so significant and out of the ordinary that they reduced her capacity to support the Children. The Tribunal had regard to the Mother’s claim that she had a credit card debt associated with travelling to Country B, but found that no further information was provided in that regard. The Tribunal also had regard to the Mother’s claim that she contributed to her siblings’ and parents’ expenses, but found these costs could not take precedence over her financial obligations to the Children: Tribunal’s Decision [47] to [53].

Ratio Decidendi

Legal Principle Established

The relevant legal principles guiding the Court’s jurisdiction in child support appeals were summarised in Child Support Registrar & Crabbe & Anor [2014] FamCAFC 10, at [54], as follows:(a)The question of whether there is evidence to support a finding of fact or an inference drawn from findings of fact is a question of law.(b)The making of a finding of fact or the drawing of an inference in the absence of evidence is an error of law.(c)A wrong finding of fact is not an error of law.(d)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.(e)Judicial review is not to be over-zealous in seeking to find inadequacy of reasoning by an administrative decision maker; the review of the reasons of an administrative decision maker must not be turned into a reconsideration of the merits of the decision.CONSIDERATIONShould the Extension of Time Application be granted? The first matter that requires consideration is whether or not time should be extended pursuant to r 27.03 of the 2021 Rules. The Court has the discretionary power to extend time. The factors that may be relevant to determining whether it should do so include the length of the delay in filing, the explanation for that delay, whether any prejudice would be caused to the other parties if an extension of time was granted and whether the Amended Notice of Appeal has reasonable prospects of success: Dalgetty & Dodd & Anor [2020] FCCA 1836, at [2]. At the Hearing the Mother’s Solicitor clarified that 20 August 2020 was the date that was incomplete in [2] of the Mother’s Affidavit, being the date that the Mother received the Tribunal’s Decision.[10] Therefore, the Notice of Appeal should have been filed by 17 September 2020. The Mother therefore requires an extension of time of 12 days.[10] Transcript P7:L1-2. The First Respondent does not oppose the Extension of Time Application. The delay is not significant and there is no prejudice to the First Respondent if the extension were to be granted. The Mother’s Submissions drew attention to s 44(2B) of the AAT Act which allows further time for an applicant in the “interests of justice”.[11] The Mother’s Submissions argued that it was in the interests of justice to extend time as the Mother had not “slept on her rights”, she acted with due diligence and she requires redress for the Tribunal’s error.[12] In the Mother’s Affidavit the Mother explained, at [1]:1.[…] I am seeking the courts permission to file this Notice of Appeal (Child Support) out of time as I was unrepresented and prevented reaching lawyers for advice in time due to Covid 19 pandemic. I myself filed the Notice of Appeal within 28 days but was returned due to lack of some information.(As written)[11] Mother’s Written Submissions, filed 19 August 2021 (Mother’s Submissions), [12].[12]Mother’s Submissions, [13]-[14]. At the Hearing the Solicitor for the Mother further submitted that due to the second Covid lockdown from 7 July 2020 to 27 October 2020 the Mother was prevented from filing in time, as she had tried to lodge the documents by way of email but they were returned to her due to lack of information.[13] The Solicitor for the Mother did not clarify what date the Mother originally tried to lodge the Notice of Appeal or what date the Notice of Appeal was returned to her.[14] The Mother has not provided evidence of the relevant email correspondence.[13] Transcript P6:L39-44.[14] Transcript P6:L20-31.