Ely v Ely & Anor - [2019] FCCA 503

FEDERAL CIRCUIT COURT OF AUSTRALIA

ELY v ELY & ANOR

[2019] FCCA 503

Catchwords:
CHILD SUPPORT – AAT Appeal – Where the Tribunal wrongly found that a TPD payment received by the applicant was not part of his property settlement with the first respondent – error of law established – decision set aside and matter remitted to the Tribunal for re-hearing.

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth), ss.33, 44, 44AAA, 46
Child Support (Assessment) Act 1989 (Cth) s.98B

Cases cited:

Apthorpe v The Repatriation Commission [1987] FCA 649

Australian Broadcasting Tribunal v Bond [1990] HCA 33
Carey & Carey (1994) FLC 92-489
CSR & Crabbe & Anor [2014] FamCAFC 10
Hickey & Hickey (2003) FLC 93-143
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Minister for Immigration and Multicultural Affairs v Al-Miahi (2001) 65 ALD 141; [2001] FCA 744

P v Child Support Registrar [2015] FCA 116
Servos v Repatriation Commission [1995] FCA 150

Applicant:

MR ELY

First Respondent:

MS ELY

Second Respondent:

CHILD SUPPORT REGISTRAR

File Number:

PAC 5499 of 2014

Judgment of:

Judge Terry

Hearing date:

27 March 2018

Date of Last Submission:

24 April 2018

Delivered at:

Newcastle

Delivered on:

29 March 2019

REPRESENTATION

Counsel for the Applicant:

Mr Tregilgas

The Respondent:

In Person

Solicitors for the Child Support Registrar:

Sparke Helmore Lawyers

ORDERS

The decision of the Administrative Appeals Tribunal made on 16 August 2017 is set aside.
The matter is remitted to the Administrative Appeals Tribunal for rehearing.

IT IS NOTED that publication of this judgment under the pseudonym Ely v Ely & Anor is approved pursuant to s.110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

PAC 5499 of 2014

MR ELY

Applicant

And

MS ELY

First Respondent

And

CHILD SUPPORT REGISTRAR
Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant, who I will refer to in these reasons as the father, has filed an appeal against a decision of the Administrative Appeals Tribunal dated 16 August 2017.
The Tribunal’s decisions consisted of two parts. It set the father’s adjusted taxable income at $81,467.00 from 7 September 2016 until the child support assessment for his older child [X] born … 2003 ended and it also increased the annual rate of child support payable by him by $1,700.00 from 7 September 2016 to 6 September 2019.
Although the father sought to have the decision set aside in whole he only sought to disturb the first part of the decision. He proposed that after setting the Tribunal’s decision aside this court make an order in terms of the second part of the decision.
The father submitted that the decision should be set aside because the Tribunal had made an error of law:
…by making erroneous findings of fact of such magnitude that went to the very jurisdiction that it purported to exercise rendering its decision unreasonable and/or an offence to logic.
To put some flesh on the bones of this…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ely v Ely & Anor

Details

AGLC: Ely v Ely & Anor [2019] FCCA 503
Case: [2019] FCCA 503
Decision Date: 29 March 2019

CaseChat Overview and Summary

This matter concerned an appeal by the mother and the Child Support Registrar against a decision of the Administrative Appeals Tribunal. The dispute centred on the Tribunal's assessment of the father's child support obligations, specifically its characterisation of certain superannuation payments and a Total Permanent Disablement (TPD) payment as not being part of the property settlement between the parties.

The court was required to determine whether the Administrative Appeals Tribunal had committed an error of law in its findings regarding the father's superannuation and TPD payment. Specifically, the court had to consider whether these amounts were correctly characterised as not being part of the property settlement, and if not, whether this mischaracterisation constituted a significant error of fact that impacted the Tribunal's subsequent assessment of child support and its decision to depart from established principles.

The court found that while the Tribunal's finding that the father's 2016 superannuation drawdown was not part of the property settlement was open to it, its conclusion that the TPD payment and the remaining superannuation were not part of the property settlement was an error of law. The court reasoned that these amounts were clearly established as part of the property settlement, citing relevant orders and case law. This mischaracterisation led the Tribunal to fail to consider the impact of departing from the Child Support Guide principle and to focus on the father's actions with his share of the settlement without inquiring into the value of the property retained by the mother, which was a significant error given the substantial size of the TPD payment.

The decision of the Administrative Appeals Tribunal was set aside, and the matter was remitted to the Tribunal for a rehearing.

Orders

Orders of the court

The decision of the Administrative Appeals Tribunal made on 16 August 2017 is set aside.

The matter is remitted to the Administrative Appeals Tribunal for rehearing.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

He also said as follows:As Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [131]:If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion. In respect of one aspect of the matter there is merit in the submissions of the mother and the Child Support Registrar that no error of law has been demonstrated. It is not clear on the face of the Tribunal’s decision that it was wrong for the Tribunal to find that the superannuation drawdown by the father in 2016 was not part of the property settlement. The father’s counsel asked me to make inferences based on paragraph 19 of the decision but I do not accept that I can draw anything from that paragraph which supports the father’s submission. It is unclear on the face of the decision whether the father drew down his superannuation prior to the property settlement orders being made or still had any of it in his possession at the time they were made. A finding that the $46,497.00 was not part of the property settlement was open to the Tribunal. However the finding that the TPD payment was not part of the property settlement is simply wrong as a matter of law. The entitlement is clearly referred to in Order 2.1.3 and if not in Order 2.1.4. The fact that the TPD entitlement was part of the property settlement is established by Hickey & Hickey. It is not something about which reasonable minds can differ. The father’s remaining superannuation of $128,000.00 was also part of the property settlement. It is referred to in Order 2.1.5. Again this is not something about which reasonable minds could differ. I accept that notwithstanding that these amounts were part of the property settlement the Tribunal was not prohibited by law or by the content of the Child Support Guide from taking them into account in determining the father’s capacity to pay child support. However the fact that the TPD payment and the remaining superannuation were not correctly characterised is a significant error of fact. As a result of finding that these amounts were not part of the property settlement the Tribunal did not consider the principle referred to in the Child Support Guide and consider whether it should depart from it. In determining whether it was just and equitable to make a departure order it did not consider the impact on the father of departing from the principle and it focussed on what the father had done with his share of the property settlement but did not make any inquiry into the value of the property the mother had retained. Given the size of the TPD payment this was a significant error. On the face of it the father received net $300,000.00 from the TPD payment. The effect of increasing his income to $81,467.00 per annum from September 2016 until the child support assessment for [X] ended was to potentially add over $200,000.00 to his income during this period. To paraphrase Carey & Carey it effectively treated his capital as income in circumstances where the capital had otherwise been adjusted between the parties.