Emerson v Emerson
[2018] FCCA 812
•5 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EMERSON v EMERSON & ORS | [2018] FCCA 812 |
| Catchwords: CHILD SUPPORT – Review of a decision of the Administrative Appeals Tribunal – where Applicant did not produce documents to the Tribunal – whether the Tribunal had a duty to inquire – no jurisdictional error – application dismissed. |
| Legislation: Administrative Appeals Tribunal Act 1975, ss.33, 42A, 43, 44AAA, 44 Child Support (Registration and Collection) Act 1988, ss.95H, 95J, 11C Evidence Act 1995 (Cth) s.163 |
| Cases cited: Haritos v The Commissioner of Taxation (2015) FCAFC 92 Minister for Immigration and Citizenship v SZIAI (2009) HCA 39 |
| Applicant: | MR EMERSON |
| First Respondent: | MS EMERSON |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| Third Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2318 of 2017 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 26 March 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 5 April 2018 |
REPRESENTATION
| The Applicant: | In Person |
| The First Respondent: | No appearance |
| Solicitor acting as Counsel for the Second Respondent: | Ms Whittemore |
| Solicitors for the Second Respondent: | Sparke Helmore Lawyers |
| The Third Respondent: | No appearance |
ORDERS
The application is dismissed.
The Applicant pay the costs of the Second Respondent fixed in the sum of $7066.00.
IT IS NOTED that publication of this judgment under the pseudonym Emerson v Emerson & Ors is approved pursuant to s.110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2318 of 2017
| MR EMERSON |
Applicant
And
| MS EMERSON |
First Respondent
| CHILD SUPPORT REGISTRAR |
Second Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Third Respondent
REASONS FOR JUDGMENT
These proceedings commenced with the Applicant filing a Notice of Appeal (Child Support) on 25 October 2017. The Applicant subsequently filed an amended Notice of Appeal (Child Support) on 8 January 2018 and it is that amended notice of appeal on which the Applicant proceeds.
The Applicant has filed submissions in the proceedings which are dated 6 March 2018 and on which the Applicant relies.
The Second Respondent seeks dismissal of the application and a costs order. The Second Respondent relies upon an affidavit affirmed by Mr J on 22 March 2018 and the Second Respondent’s submissions filed 22 March 2018.
The Court has also before it documents provided by the Administrative Appeals Tribunal (Social Services and Child Support Division) (‘the Tribunal’) as set out in correspondence of 20 November 2017 to the Court and in accordance with the agreed procedure between the Tribunal and the Court.
The orders sought by the Applicant are as follows:-
“(1) Any leave for this Appeal to proceed be given.
(2) The decision dated 15 September 2017 of the AAT in proceedings numbered (omitted) and (omitted) be set aside.
(3) The second respondent take no further action to recover any child support arrears said to be owing by the applicant until the conclusion of these proceedings.”
The grounds of appeal contain statements as to parts of the reasons of the relevant decision of the Tribunal; submissions which are in fact the same as those headed ‘Applicant’s submissions’ filed on 6 March 2018 save for the submissions inclusion of a reference to the decision of Wecker v Secretary, Department of Education, Science and Training (2008) FCAFC 10 (‘Wecker’); and ultimately one ground of judicial review. The stated ‘grounds’ are as follows:
“1. At paragraph 13 of its reasons, the AAT outlined how it considered the applicant had failed to provide complete financial disclosure in the case. The AAT thereafter considers itself unable to determine the central issues in the case and dismissed the application.
At paragraph 7 of its reasons, the AAT recorded how the applicant had made some effort to comply with the disclosure requirements which were placed upon him (“[the Applicant] has not complied with the totality of the directions”… At paragraph 12 the AAT noted that the applicant had requested the relevant documents from his bank and had relied upon the bank to produce those documents.
As part of its preparation for AAT cases of this type, the Child Support Registrar (CSR) provides the AAT with a comprehensive and detailed briefing file. Indeed, all of the documents which the CSR had used in this case were provided to the AAT. In these circumstances it is submitted the AAT erred in dismissing the application.
This is particularly the situation given that fact that the AAT could have used its powers under, inter alia, sections 95H and 95J, Child Support Registration Act, to obtain whatever information it may have sought directly from whomever it believed held that information.
The AAT is the final arbiter of fact in these child support appeals. This puts a heavy burden upon it to properly investigate questions of fact. The AAT is intended to operate on an inquisitorial rather than adversarial model. Unlike a court it is expected to make its own enquiries [sic] as to facts.
In Prasad & MIMAW (1985) 6 FCR 155 it was held that there may be a duty upon an administrative decision maker to initiate an enquiry to obtain additional information when it is obvious that material is readily available and is centrally relevant to the decision to be made.
It is submitted the AAT in this case erred in that duty.”
Consideration
By the Applicant’s amended Notice of Appeal (Child Support), the Applicant appeals from a decision of the Tribunal dated 15 September 2017 and posted on 26 September 2017, dismissing his applications for review for his failure to comply with directions made by the Tribunal pursuant to s.42A(5) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’).
Section 42A(5) of the AAT Act is as follows:-
“If an Applicant for a review of a decision fails within a reasonable time:
(a) to proceed with the application; or
(b) to comply with a direction by the Tribunal in relation to the application;
the Tribunal may dismiss the application without proceeding to review the decision.”
An appeal to this Court must be brought within 28 days of the Applicant’s receipt of the Tribunal decision.[1] The Tribunal decision was posted to the Applicant on 26 September 2017. It is taken to have been received by him on 4 October 2017.[2] The Notice of Appeal was filed with the Court on 25 October 2017 and is therefore within time.
[1] Administrative Appeals Tribunal Act 1975 (Cth) ss 44AAA(2) and 44(2)A.
[2] Evidence Act 1995 (Cth) s.163(1), Swanton v Military Rehabilitation and Compensation Commission [2017] FCA 1142, 26.
Thus, in respect of the first order sought in the amended Notice of Appeal, there is no need for leave to be granted for the appeal to proceed.
An appeal under s.44AAA of the AAT Act is limited to an appeal “on a question of law”. A question of law should be stated with precision.[3]
[3] Haritos v The Commissioner of Taxation (2015) FCAFC 92, 62.
Order 2 as sought by the Applicant requires not only that if an error of law is identified such that the decision dated 15 September 2017 be set aside, but a further order that the matter be as a consequence remitted to the Tribunal for re‑determination according to law.
Order 3 as sought is not an order the Court shall make. It seeks a stay on collection of child support arrears pending a resolution of the proceedings. S.111C of the Child Support (Registration and Collection) Act 1988 (Cth) (‘the Collection Act’) is not referenced and there is no material, nor evidence before the Court in support of any stay application.
For the reasons which follow, the Court has determined that the amended Notice of Appeal (Child Support) should be dismissed and that costs should be payable by the Applicant to the Second Respondent. The Court determines that there is no error of law attending the decision of the Tribunal.
Background
The Applicant and the First Respondent are the separated parents of the child, [X], who was born on (omitted) 2009 and is now aged 9 years. The child is in the primary care of the First Respondent.
Under the administrative assessment of child support, the Applicant was assessed to pay child support to the First Respondent as follows:-
a)from 20 July 2014 to 31 August 2014 – $3446 per annum based on the applicant’s 2012/13 Australian Taxation Office lodged adjusted taxable income (ATI) of $42,820;
b)for the period 1 September 2014 to 31 August 2015 – $3485 per annum based on the applicant’s 2013/14 ATI of $44,026;
c)for the period from 1 September 2015 to 31 August 2016 – the fixed annual rate (FAR) of $1352 based on the applicant’s 2014/15 ATI of $21,672; and
d)for the period 1 September 2016 to 30 November 2017, the FAR of $1373 based on the applicant’s 2015/16 provisional income of $21,997.
On 16 February 2017, an objections officer of the Second Respondent made a decision in relation to an objection lodged by the Applicant on 22 December 2016. That objection decision is annexed to the affidavit of Mr J and marked ‘Annexure A’. In that decision, the objections officer found that a ground for departure existed on account of the Applicant’s income, property and financial resources and that it was just and equitable and otherwise proper to depart from the assessment as follows:-
a)for the period 1 January 2015 to 31 August 2015, the applicant’s ATI was set at $309,677 (resulting in an annual rate of $19,402 to $20,483);
b)for the period 1 September 2015 to 31 August 2016, the applicant’s ATI was set at $541,777 (resulting in an annual rate of $20,989);
c)for the period 1 September 2016 to 31 December 2019, the applicant’s ATI was set at $560,800 (resulting in an annual rate of $21,733).
The objection decision and statement of reasons of the objections officer, in decision dated 16 February 2017, noted that the Applicant was a (occupation omitted) who operated his own business within a company structure, wherein he is the sole director and shareholder. The Applicant’s company is the trustee for his family trust which operates at the complete discretion of the Applicant. The objections officer found further that financial statements provided for the trust evidenced that there were no employees in receipt of wages. The conclusion reached by the objections officer was that the income generated within the trust should be considered income for the Applicant, for the purposes of a child support assessment. It was the Applicant who appeared to be the person generating the income.
The objections officer found that the Applicant had access to income and financial resources in the amounts stated in paragraph 17 herein over the 2013 to 2016 financial years, through his (business omitted) company and as trustee and beneficiary of the discretionary trust through which the company’s profits flowed.
The Applicant, on 20 February 2017 applied to the Tribunal for review of the objections officer decision of 16 February 2017.
The Applicant thereafter applied to the Tribunal for review of a further objection decision dated 20 February 2017, which is annexed to the affidavit of Mr J and marked ‘Annexure B’. The objection decision dated 20 February 2017 disallowed the objection, noting the decision made by the objections officer on 16 February 2017, as described in paragraphs 17 to 19 above. The second objection decision of 20 February 2017 and found that there were no grounds to depart from the child support assessment made on 16 February 2017.
The Tribunal
In a decision dated 15 September 2017, the Tribunal, pursuant to sub-s.42A(5) of the AAT Act, dismissed the Applicant’s applications for review. The Tribunal was satisfied that the Applicant failed to comply with directions made by the Tribunal in relation to the applications.
The Tribunal set out with some clarity its reasons for decision in paragraphs 4 to 13 of the Decision and Reasons for Decision (‘the Decision Record’). Those reasons are brief and I set them out below:
“ 4.On 13 May 2017, the Tribunal issued directions that [the Applicant] produce documents by 8 June 2017. A note to those directions advised [the Applicant] of the possibility of his applications being dismissed if he failed to comply with the directions.
5.On 15 June 2017, the Tribunal sent a letter to [the Applicant] advising him of his failure to comply with the directions and inviting him to make submissions as to why his application should not be dismissed.
6.On 29 June 2017, [the Applicant’s] applications were listed for hearing. [The Applicant] was granted a further opportunity to comply with the directions of 13 May 2017 by 10 August 2017. Further directions were made by the Tribunal to that effect on 29 June 2017. A note to those directions advised [the Applicant] of the possibility of his applications being dismissed if he failed to comply with the directions.
7.[The Applicant] has not complied with the totality of the directions. The following documents have not been produced:
·Complete statements for all bank accounts in which [the Applicant] has or has had an interest from 1 January 2015;
·Complete bank statements for bank accounts held by any company or trust in which [the Applicant] has or has had an interest from 1 January 2015;
·Complete statements for all loans including credit cards, in [the Applicant’s name] or in the name of any company or trust in which [the Applicant] has or has had an interest since 1 January 2015; and
·Settlement statements for the sale of real property.
8.[The Applicant] produced no documents which show how he currently meets his living costs. He said that his pay is deposited into a friend’s account. He did not disclose any statements for that account. He says that the money is used to repay a personal loan. He was unable to take the Tribunal to the transactions relating to that loan, which he then described as ‘more like a cash thing’.
9.[The Applicant] confirmed the accuracy of a financial statement for a company of which he was the director which showed ‘cash at bank’ of $184,868 as at 30 June 2015. He was unable to identify the statement for the account in which those savings were held on that date.
10.[The Applicant] was unable to point to the bank statements relating to the alleged distributions from the [Applicant’s] Family Trust for the financial year ended 30 June 2015 that exceeded $500,000. He was the sole trustee of the trust at that time.
11. [The Applicant] said that he paid his living costs from January to November 2016 from the proceeds of sale of his home in mid‑2015. He could point to no bank statements to corroborate that statement. He also failed to produce any statements for the home loan or the settlement statement which would have revealed the amount and application of those proceeds of sale.
12.[The Applicant] submitted that he had done everything he thought he had to do and that he had not deliberately failed to provide information. He requested relevant documents from the bank and relied on them to provide the statements. [The Applicant] was given two opportunities to comply with the directions. It was his responsibility to do so.
13.The lack of [complete disclosure] by [the Applicant] results in the Tribunal being unable to assess his income, financial resources or earning capacity, central issues arising for determination in his applications.”
Conclusion
The Applicant argues that the Tribunal failed to properly exercise its jurisdiction and made an error of law in failing to make its own inquiries to obtain the documents it had sought from the Applicant and which the Applicant had failed to produce.
As submitted by the Second Respondent, that suggestion of an error of law is misconceived. It is the Tribunal’s duty to review decisions of the Child Support Registrar.[4] The Tribunal is not under a general duty or obligation to inquire, as was said in Minister for Immigration and Citizenship v SZIAI (2009) HCA 39 (‘SZIAI’), by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ at paragraph 25:
“Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case.”
[4]Administrative Appeals Tribunal Act 1975(Cth) s.43.
Pursuant to s.33 of the AAT Act, the Tribunal has a discretion to “inform itself of any matter in such manner as it considers appropriate”. It also has powers under s.95H of the Collection Act to obtain information and under s.95J of the Collection Act to request that the Child Support Registrar do so on its behalf. However, neither of those provisions nor any other create any duty or obligation on the Tribunal to inquire. Sections 95H and 95J are clearly framed as discretionary powers which the Tribunal may choose to exercise in an appropriate case. The Second Respondent’s submission in this regard is accurate.
In the matter before it, the Tribunal requested material through the most direct means possible, namely the Applicant. The Applicant failed to comply with the Tribunal’s directions. It is clear from the Tribunal’s Decision Record at paragraphs 8 to 11 that only the Applicant could provide the material required by the Tribunal, as the Tribunal was not in receipt of details of the Applicant’s accounts from which it could make its own inquiries. As submitted by the Second Respondent, on no view could it be said that the inquiries the Applicant alleges the Tribunal should have undertaken were in relation to a critical fact, the existence of which was easily ascertained.
The authorities to which the Applicant referred the Court were not of assistance to the Applicant.
The relevant authority in these proceedings is the Full Court of the High Court of Australia decision in SZIAI. The High Court of Australia confirmed therein that the Tribunal was not under any general duty or obligation to make inquiries. The decision of Prasad & Minister for Immigration & Ethnic Affairs (1985) FCR 155, relied on by the Applicant, was a matter that turned on its own facts and had no similarity to the present case. Wilcox J comments in Prasad were considered by the Full Court of the High Court of Australia, in SZIAI.
The other decision relied upon by the Applicant, was the decision in Wecker wherein the Full Court of the Federal Court of Australia referred to Prasad. This decision was prior to that of the High Court of Australia decision in SZIAI. In any event, the Court, in Wecker, found at 109 to 110:
“ 109. Although the Tribunal is invested with these powers, the Tribunal is under no statutory duty to exercise a power of inquiry or compulsion … The circumstances under which a decision will be invalid for failure to inquire are strictly limited.
.. circumstances that enliven the Prasad principle as a possible exception to the general principle accepted by Wilcox J of no duty to inquire, involve acceptance that there is obvious material available to the decision maker centrally relevant to the decision to be made, and no attempt has been made to obtain that information before the decision maker reached a decision.”
The Applicant failed to comply with the Tribunal’s directions, wherein the Tribunal sought to have placed before it, by the Applicant, various financial documents belonging to the Applicant. The Tribunal’s finding of non-compliance and its decision to dismiss the application on this basis was open to it both on application of the relevant legislation and on the facts of the case, for the reasons that it gave. Not only did the Applicant fail to provide any documents to the Tribunal, but nor did the Applicant put before the Tribunal any evidence that he had requested such documents from any bank.
There is no error of law attending the Tribunal decision, and the appeal will be dismissed. The Applicant shall pay the Second Respondent’s costs, fixed in the sum of $7066, in accordance with Schedule 1, Part 2, Division 2 of the Federal Circuit Court Rules 2001 (Cth).
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Date: 5 April 2018
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