EIZ20 v Child Support Registrar
[2023] FedCFamC2G 637
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 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 s110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).
REASONS FOR JUDGMENT
HER HONOUR JUDGE C.E. KIRTON KC:
INTRODUCTION
Before the Court is a Notice of Appeal (Child Support) filed on 29 September 2020 (Notice of Appeal) brought pursuant to s 44AAA of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). The Applicant (Mother) seeks an extension of time to appeal from a decision of the Administrative Appeals Tribunal (Tribunal), dated 11 August 2020 (Tribunal’s Decision).
The Tribunal refused the Mother’s application under s 98F of the Child Support (Assessment) Act1989 (Cth) (Assessment Act) and affirmed a decision of an officer of the Child Support Registrar (First Respondent).
The Mother requires an extension of time of 12 days.
For the reasons set out below, I find that there is no error of law in the Tribunal’s Decision and no circumstances justifying the granting of an extension of time. It follows that the Notice of Appeal must be dismissed.
HEARING BEFORE THE COURT
The matter was heard before me on 16 September 2021 and proceeded by way of videoconference on Microsoft Teams, as a result of the health protocols adopted by the Federal Circuit Court and Family Court of Australia in Victoria at that time (Hearing).
The Court is satisfied that the Hearing provided a meaningful opportunity for the Mother to engage with the Court.
ISSUES IN DISPUTE
The following issues required determination by the Court:
(a)Whether time should be extended pursuant to r 27.03 of the Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (2021 Rules) for the Mother to file the Notice of Appeal as amended on 15 December 2020; and
(b)If time to file the Notice of Appeal as amended on 15 December 2020 is extended, whether the Tribunal constructively failed to exercise its jurisdiction or authority.
SYNOPSIS
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
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].
For Reasons 8A and 8B, the Mother did not show that either parents’ income, property, financial resources or earning capacity made the Assessment unfair. The Tribunal was satisfied that the evidence of the financial circumstances of both parties was accurately and transparently reflected in the Assessment. The Tribunal found: that the Mother had been working as a casual educator for some time; that there was no evidence that the Mother had changed occupation or working pattern; and that the Mother was working to her capacity, given her health and caring considerations. The Tribunal found: that until recently the Father had also been working full-time but that his employer had temporarily reduced him to four days a week; and that there was no evidence that the Father had requested that his hours of employment be reduced to affect the Assessment: Tribunal’s Decision [54] to [69].
For Reason 9, the Mother did not demonstrate that she had a duty to maintain another person which significantly affected her ability to financially support the Children. The Tribunal had regard to the Mother’s evidence that she spent money supporting her siblings and parents in Country B, which she had an obligation to do, as her parents paid for her education with their earnings. The Tribunal considered case law which held that “duty to maintain” meant a legal duty and not a moral duty: Vick & Hartcher (1991) FamCA 79; and Dwyer & McGuire (1993) FamCA 82. The Tribunal was accordingly not satisfied that the financial support the Mother provided to others could be taken into account in the Assessment: Tribunal Decision [70] to [75].
PROCEDURAL HISTORY
The Notice of Appeal was filed on 29 September 2020, outside of the 28 days of the date on which the Mother received the Tribunal’s Decision, as required by ss 44AAA(2)(a) and 44(2A)(a) of the AAT Act. The Notice of Appeal sought orders that: the time for making the application be extended (Extension of Time Application); the Tribunal’s Decision be quashed; and a writ of mandamus be issued directed to the Tribunal requiring it to determine the Mother’s application according to law.[1]
[1] Notice of Appeal (Child Support), filed by the Applicant (Mother), 29 September 2020 (Notice of Appeal), Orders Sought, [1]-[3].
The Mother filed an affidavit sworn and filed on 29 September 2020 (Mother’s Affidavit). The Mother’s Affidavit was prepared by the Mother’s Solicitors, and at [1] and [2] states:
1. I am one of the Applicant in this matter and 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.
2. Attached document is a true copy of the [Tribunal’s Decision] which was received by me on 20
(As written)
In [1] of the Mother’s Affidavit the Mother failed to depose to: when she originally lodged the Notice of Appeal; when it was returned to her by the Court; and what was said to be deficient with the original application. Further, the sentence in [2] of the Mother’s Affidavit is incomplete. It is not clear from the Mother’s Affidavit when the Mother received the Tribunal’s Decision.
At the commencement of the Hearing I questioned the Mother’s Solicitor in relation to the information that was not included in [1] and [2] of the Mother’s Affidavit, referred to in the previous paragraph. The Mother’s Solicitor conceded that: it was his fault that information in [2] was missing; and that he did not have any instructions in relation to the information that was missing in relation to [1]. The Mother’s Solicitor submitted that this information was in any event not relevant, as the Respondents were not opposing the granting of the extension of time application.[2]
[2] Transcript P6:L39-P8:L3.
On 10 November 2020 this matter came before the Court and I made Orders: removing the Tribunal as a party to the proceedings; and that the Extension of Time Application and all extant applications (if time is to be extended) be listed for hearing on 24 August 2021, with an estimate of one (1) day.[3]
[3] Orders made by Her Honour Judge C.E. Kirton KC on 10 November 2020 (10 November 2020 Orders), Orders 1 and 2.
On 10 November 2020 I also made orders by consent that the Mother could file an amended Notice of Appeal by 4:00 pm on 15 December 2020.[4] The Mother filed an Amended Notice of Appeal on 15 December 2020 (Amended Notice of Appeal).
[4] 10 November 2020 Orders, Order 3.
In the Amended Notice of Appeal the Mother appealed the Tribunal’s Decision on two (2) grounds as follows:[5]
1.The Administrative Appeal Tribunal failed to provide procedural fairness to the applicant by not inviting the applicant to present her argument and/or cross examine her husband the second respondent before accepting his submissions (Ground 1)
Particulars
[5] Amended Notice of Appeal, filed by the Mother 15 December 2020 (Amended Notice of Appeal), Grounds of Appeal, [1] and [2].
A. Failed to inquire about total amount of taxi fare costs and failed to ask for evidence concerning the number of visits applicant’s son made to her home.
B. Failed to ask for receipts regarding vehicle modifications after receiving quotes form applicant on modifications.
C. Failed to ask for son’s physiotherapy medical bills and home renovations for disabled access after being provided with specialist letter specifying the applicant’s son requires physiotherapy as well as home fittings.
D. Failed to enquire about daughter’s psychological needs after being presented with information that she suffers from anxiety and being presented with bills from psychologist.
E. Failure to look into applicant’s medical history and ask for receipts for medical expenses over the year.
F. Failure to take into consideration the pandemic and the effect that had on applicants earning capacity.
G. Failure to ascertain above facts impacted on procedural fairness being applied as in Prasad & Minister for Immigration and Ethnic Affairs due to the lack of evidence to make a logical decision and the availability of said evidence.
H. Failure to investigate the amounts paid by the applicant towards daughter’s school and extracurricular needs and use this evidence to determine if it should offset the child support payment as in Walton v Cannon (2019) AATA 2529.
2.The Administrative Appeals Tribunal erred in fact, failed to consider that there was no evidence or other material to justify the making of the decision. (Ground 2)
Particulars
A. Failed to question father about his preference for daughter to be in private school especially since she was in private school prior to being transferred to [C School].
B. The Administrative Appeals Tribunal should have conducted a review based on new evidence as in Stiglec v Stiglec (2020) AATA 4287.
C. Failed to question the father about sons visits to the applicant’s home and if he facilitated these.
[…]
(Words in bold and italics added, otherwise as written)
At the Hearing the Mother relied on the following documents:
(a)The Amended Notice of Appeal;
(b)The Mother’s Affidavit; and
(c)Mother’s Written Submissions, filed 19 August 2021 (Mother’s Submissions).
At the Hearing the First Respondent relied on the First Respondent’s Submissions.
The Court has also considered the submissions made at the Hearing by the Solicitor for the Mother and the Solicitor for the First Respondent and reviewed the transcript of the Hearing in detail.
At the Hearing I made Orders that both parties file a list of authorities that they relied on, on or before 23 September 2021 and that Judgment be reserved.[6] The First Respondent filed a list of authorities on 20 September 2021 and the Mother filed a list of authorities on 21 September 2021.
[6] Orders made by Her Honour Judge C.E. Kirton KC on 16 September 2021, Orders 1 to 3.
JURISDICTION OF THE COURT
The Tribunal’s Decision is reviewable by this Court under s 44AAA(1) of the AAT Act. The Court’s jurisdiction under s 44AAA is limited to questions of law. An applicant may not appeal to the Court because they simply disagree with the decision. An appeal lies only in relation to a question of law, which must ordinarily be set out with precision so as to ensure the merits of a case are dealt with by the Tribunal, not the Court: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 115 ALR 1; (1993) 43 FCR 289.
As submitted by the Solicitor for the First Respondent at the Hearing, the statutory right of appeal under s 44 of the AAT Act is concerned with questions of law not jurisdictional errors.[7] The question of law in the Amended Notice of Appeal was stated to be:
[7] Transcript P14:L9-12.
Question of law
1. The Administrative Appeals Tribunal constructively failed to exercise its jurisdiction or otherwise failed to carry out its statutory task by failing to consider the applicant’s application for a change to the assessment.[8]
(As written)
[8] Amended Notice of Appeal, Question of law, [1].
At the Hearing the Mother’s Solicitor conceded that the Amended Notice of Appeal did not articulate a question of law and submitted that the question of law before the Court was: whether the Tribunal constructively failed to exercise its jurisdiction or authority.[9]
[9] Transcript P8:L13-16.
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.
CONSIDERATION
Should 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.
I now turn to consider the merits of the Amended Notice of Appeal.
Did the Tribunal properly exercise its powers under s 34J of the AAT Act?
The basis of Ground 1 is that the first prerequisite in s 34J(1)(a) of the AAT Act was not given any consideration by the Tribunal and was not satisfied. The Mother contended that the Tribunal failed to hold a hearing and therefore committed an error of law. The particulars in Ground 1 identify information which the Tribunal should have enquired further into and/or did not consider.
The Mother’s Submissions at [19] submitted that the Tribunal is a decision-maker who has the necessary powers to ensure it has adequate material before it for the purpose of fulfilling its duty to come to correct and preferable decisions.[15] The Mother’s Submissions cited Bushell v. Repatriation Commissioner (1992) 175 CLR 408 at 424-425 and described the Tribunal’s proceedings as inquisitorial in nature. The Mother’s Submissions at [19] to [21] contended that the Tribunal failed to use its inquisitorial powers and therefore failed to properly exercise its power under s 34J of the AAT Act.
[15] Mother’s Submissions, [19].
The First Respondent submitted that the Tribunal properly exercised its powers under s 34J of the AAT Act. The First Respondent submitted that the reason the Tribunal did not “invit[e] the applicant to present her argument and/or cross examine her husband” nor did it “inquire”, “ask”, “enquire”, “look into”, “ascertain” or “investigate” the matters set out in the Mother’s particulars, was that the parties had consented to the Tribunal determining its review on the evidence it had before it and without conducting a hearing.[16]
[16] First Respondent’s Submissions, filed 8 September 2021 (First Respondent’s Submissions), [32].
The procedure under s 34J of the AAT Act was invoked by the Tribunal. Section 34J provides for circumstances in which hearings may be dispensed with as follows:
34J Circumstances in which hearing may be dispensed with
(1) If:
(a)it appears to the Tribunal that the issues for determination on the review of a decision can be adequately determined in the absence of the parties; and
(b)the parties consent to the review being determined without a hearing;
the Tribunal may review the decision by considering the documents or other material lodged with or provided to the Tribunal and without holding a hearing.
[…]
Did the parties consent to proceeding without a hearing?
In order to proceed without a hearing the Tribunal must be satisfied that s 34J(1)(b) of the AAT Act was met. The Tribunal recorded at [10] and [11] of the Tribunal’s Decision, that:
10.[The Mother] requested review by the Administrative Appeals Tribunal (“the Tribunal”). A telephone directions hearing was conducted with [the Mother] on 2 April 2020. [The Father] advised that he did not wish to participate in that conference and it proceeded in his absence. Both parties provided additional documents in accordance with the Tribunal’s directions.
11.Both [the Mother] and [the Father] advised, after consideration, that they wished the hearing to proceed in their absence and asked that it be conducted “on the papers”. The Tribunal proceeded on that basis and undertook the review on 11 August 2020.
Neither the Mother nor the Father has disputed the Tribunal’s account of events or that they gave consent for the Tribunal to proceed without a hearing. The First Respondent submitted that s 34J(1)(b) of the AAT Act was therefore enlivened, as the parties consented to proceeding without a hearing and there has been so suggestion that this was incorrect.[17] The Mother did not dispute that the prerequisite in s 34J(1)(b) was met but attempted to explain that consent to the Tribunal proceeding without a hearing was influenced by the Covid lockdown and the country situation at the time.[18]
[17] Transcript P15:L4-6.
[18] Transcript P8:L20-24.
The Tribunal was correct to proceed pursuant to s 34J(1) of the AAT Act on the basis that the Mother and Father had provided consent and s 34J(1)(b) of the AAT Act was satisfied.
Could the issues for determination be adequately determined in the absence of the parties?
The Mother claimed that procedural fairness was not afforded to her as the Tribunal concluded that the issues for determination could be adequately determined without a hearing, and incorrectly proceeded on the basis that s 34J(1)(a) was satisfied. The Mother’s Solicitor submitted that the parties’ consent, which satisfied s 34J(1)(b), did not take away the Tribunal’s duties, powers or investigatory authority and it had the responsibility to make its own decisions.[19] The Mother’s Solicitor submitted that the Mother’s claim was not resolved in the proper forum, as the Tribunal should have proceeded to a hearing, and if it had done so then the outcome would have been different.[20]
[19] Transcript P19:L5-7.
[20] Transcript P13:L21-24 and P11:L20-41.
The First Respondent disputed the Mother’s construction of s 34J(1) and submitted that it could not be intended that the Tribunal was not able to validly decide a review on papers, despite the AAT Act empowering it to do so and the parties asking it to do so.[21]
[21] Transcript P16:L20-23.
The Mother’s claim to have been denied procedural fairness cannot succeed. The Tribunal was evidently satisfied that the parties had consented to continue with the review without a hearing, and that it could adequately determine the review of the Objection Decision without a hearing. There is no evidence to suggest that either party raised an issue or indicated they had further material evidence that required a hearing, after they provided consent to the Tribunal to proceed with the review without a hearing. The Tribunal considered all the evidence before the First Respondent and all the evidence submitted to it. The Tribunal gave the Mother and Father the opportunity to submit any further information that they considered relevant or material. It was open to and reasonable for the Tribunal to conclude that the Mother and Father had provided all the information they considered important and relevant, and that it could properly review the Objection Decision with the information before it.
Further, in properly carrying out its duties, the Tribunal will request further information from parties where it deems it necessary in order to adequately determine issues on review. The assessment is for the Tribunal to make and where the parties do nothing to dissuade the Tribunal that the decision can be adequately determined in the absence of the parties, there is no obligation seek further information or hold a hearing.
Is the Tribunal required to give reasons for proceeding without a hearing pursuant to s 34J?
The Mother’s Solicitor submitted that the Tribunal failed to afford procedural fairness to the Mother, as it did not provide reasons for its decision to proceed without a hearing.[22] The Solicitor for the Mother submitted that the exercise of the Tribunal’s discretion pursuant to s 34J of the AAT Act creates an obligation on the Tribunal to explain its exercise of power. The Solicitor for the Mother contended that there were various other legislative provisions that required the Tribunal to obtain more information but provided no legislative sources or authorities to support this contention.
[22] Transcript P9:L15-21.
At the Hearing the Solicitor for the First Respondent submitted that there is nothing in the AAT Act that suggests that the Tribunal must give reasons for its procedural decision under s 34J.[23] The First Respondent’s Solicitor submitted that the “obvious” conclusion could be drawn that if the Tribunal was not satisfied that it could adequately determine the issues, then it would not have determined the review without a hearing. The First Respondent’s Solicitor further submitted that the Tribunal did explain why it was satisfied that the review could be adequately determined in the absence of the parties.[24] The First Respondent’s Solicitor submitted that there were no known authorities that found that decisions could be appealed on the basis that reasons were not provided for procedural decisions under s 34J.[25]
[23] Transcript P15:L26-27.
[24] Transcript P15:L31-37.
[25] Transcript P15:L40-41.
I accept the First Respondent’s submissions. Section 34J does not require the Tribunal to provide detailed reasons for exercising its power to proceed without a hearing. Administrative decision-makers are not obliged to give parties a running commentary of their assessment of the evidence before them. In the Tribunal’s Decision the Tribunal explained the background, outlined the issues for determination and in detail explained its assessment of the information before it. The Tribunal heard the Mother and Father on how they would like to proceed and provided the opportunity to submit more information. The Tribunal adequately explained that the parties consented and provided information to it, and explained the Tribunal’s Decision as it is obligated to do. The Tribunal did not have to explain its finding that s 34J was satisfied or its decision to proceed without a hearing in any more depth than it did.
Did the Tribunal have a duty to inquire?
The Mother’s Submissions at [22] contended that the Mother was denied procedural fairness as the Tribunal did not invite her to provide further information or evidence before it accepted its findings of fact. The Mother submitted that unlike Courts the Tribunal has a duty to investigate due to its unique nature and various statutory powers.[26] The Mother’s Submissions pointed to various legislative provisions that empower the Tribunal to obtain more information.[27]
[26] Mother’s Submissions, [22].
[27] Mother’s Submissions, [23]-[28].
The First Respondent’s Solicitor accepted that the AAT Act provides powers to the Tribunal to seek comment and inquire, but denied that there is an obligation or a duty to do so. The First Respondent’s Solicitor characterised the powers as permissive not mandatory and cited Minister for Immigration and Citizenship v Le and Others (2007) 164 FCR 151 at [172] which found that “the Tribunal has no obligation to initiate enquiries or to make out an applicant’s case for him or her”.[28] The First Respondent’s Solicitor also cited Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 and accepted that in rare or exceptional cases a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, can result in an error of law.[29] The First Respondent’s Solicitor submitted that this was not a rare or exceptional case, as no issue came “out of the blue” and there was no issue which was not raised by either party or the decision-maker under review.[30]
[28] Transcript P16:L45-46.
[29] Transcript P18:L6-12.
[30] Transcript P18:L14-17.
I accept the First Respondent’s submissions. The Tribunal is empowered to obtain information from parties. The Tribunal is not necessarily obliged to seek comments or information from parties when it is minded to decide a matter adversely to a party. The Tribunal’s obligation to have enough information before it to adequately review a decision does not require it to “conduct an inquiry to discover whether [the Mother] might have been able to put [her] case better or support it with other evidence”: Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41, at [49]. The Tribunal proceeded on the basis that the parties had provided information and evidence on everything they wanted to provide in support of their case. The Tribunal does not have to enquire on the mere possibility that either party might have something further to say.
The Mother’s contention at [28] of the Mother’s Submissions that the statutory provisions “clearly mandate the Tribunal go on a voyage of discovery and to investigate and request for additional information or documents” cannot be accepted. The Mother’s Submissions provide suggestions of what the Tribunal ‘could’ have done in relation to each of the Reasons she provided. The Tribunal has discretionary powers which it may choose to exercise in an appropriate case: Emerson v Emerson & Ors [2018] FCCA 812 at [26]. None of the legislative provisions cited in the Mother’s Submissions impose an unqualified duty or obligation on the Tribunal to inquire. The Mother is incorrect in suggesting that the Tribunal had to seek further information when it could not find sufficient information to support the Reasons. As correctly submitted in the First Respondent’s Submissions at [36], obligations of procedural fairness imposed on decision-makers do not require the decision-maker to disclose what it is minded to decide and seek further information whenever an adverse finding is contemplated: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152, at [48].
To the extent the Mother disagrees with the Tribunal’s assessment of the information before it, the Court cannot undertake impermissible merits review. As articulated in P v Child Support Registrar [2015] FCA 116, at [109]:
109 […]
A person likely to be affected by an administrative decision to which requirements of procedural fairness apply can support his or her case by appropriate information but cannot complain if it is not accepted [...] Within the bounds of rationality a decision-maker is generally not obliged to invite comment on the evaluation of the subject’s case […]
The Mother’s further contention that the Tribunal should have enquired further given it found that there was “insufficient evidence” to support the Reasons misunderstands the Tribunal’s Decision. As submitted by the First Respondent, the Tribunal concluded that the evidence provided by the Mother was insufficient to establish the Mother’s claims. The determination made by the Tribunal was open to it on the evidence before it.
The Tribunal is under no obligation to provide reasons for its exercise of power under s 34J, nor is there a duty to inquire imposed on the Tribunal. The Tribunal satisfied s 34J(1)(a) and (b) of the AAT Act.
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.
Particular C was considered in [24] of the Tribunal’s Decision. The Tribunal recited the Father’s evidence and submissions and made factual findings based on the Mother’s evidence. The Tribunal had no further duty to inquire.
No arguable error of law has been identified by the Mother in Ground 2.
CONCLUSION
The Amended Notice of Appeal contains no arguable error of law and has no reasonable prospect of success.
I have considered the factors relevant to the exercise of the Court’s discretion to extend time. In this case the delay is not significant and there is no prejudice to the First Respondent if the Extension of Time Application were to be granted. The First Respondent does not oppose the Extension of Time Application. However, the Amended Notice of Appeal lacks any reasonable prospect of success. I therefore determine that the lack merit in the Amended Notice of Appeal does not justify the Court exercising its discretion to grant the Extension of Time Application. The Extension of Time Application must be dismissed. Orders will be made accordingly.
The First Respondent sought costs fixed in the sum of $7,200 in accordance with Pt 2 Div 1, Item 3 of Schedule 1 of the 2021 Rules applicable at the time of the Hearing. Accordingly I will make an order that the Mother pay the First Respondent’s costs fixed in the sum of $7,200.
I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment of Her Honour Judge C.E. Kirton KC. Associate:
Dated: 20 July 2023
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