Eoi20 v Child Support Registrar

[2023] FedCFamC2G 745

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

EOI20 v Child Support Registrar [2023] FedCFamC2G 745  

File number(s):

LNG 9 of 2022

Judgment of:

JUDGE TAGLIERI

Date of judgment:

17 August 2023

Catchwords:

CHILD SUPPORT – where applicant seeks leave to amend application to include addition ground – leave granted  

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) s43(2B)

Child Support (Assessment) Act 1989 (Cth) pt 6A, s43(1)

Child Support (Registration and Collection) Act 1988 (Cth) s 80

Cases cited:

Alexander v Australian Community Pharmacy Authority (2010) 233 FCR 575

Wonson v Comcare [2020] FCAFC 76

Division:

Division 2 General Federal Law

Number of paragraphs:

16

Date of hearing:

8 June 2023

Place:

Hobart

For the Applicant:

In person

Solicitor for the First Respondent:

Mr Hillyard, Sparke Helmore

For the Second Respondent:

No appearance

ORDERS

LNG 9 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

EOI20

Applicant

AND:

CHILD SUPPORT REGISTRAR

First Respondent

EOJ20

Second Respondent

ORDER MADE BY:	JUDGE TAGLIERI
DATE OF ORDER:	17 AUGUST 2023

THE COURT ORDERS THAT:

1.The Applicant is granted leave to rely on an additional ground of error of law, meaning that the appeal will be determined on the basis of two alleged errors of law only, being:

(a)Operation at s 43 of the Child Support Assessment Act 1989 (Cth) and whether or not information provided by a tax payer in the tax return is dispositive of the questions that arise under subparagraph (1)(a) to(f).

(b)That the Tribunal failed to provide adequate reasons for preferring the evidence of the Second Respondent as dispositive of the evidence pertaining to the considerations in s 43(1) of the Child Support Assessment Act 1989 (Cth), where there was evidence from the Applicant tending to contradict the evidence of the Second Respondent.

2.The Applicant, within 7 days of the date of these Orders, file and serve an Amended Notice of Appeal on the First Respondent, confined to the alleged errors referred to in Order 1 of these Orders.

3.Within 14 days of the date of these Orders, the First Respondent file and serve its submissions relied upon in respect of the ground referred to in Order 1(b) of these Orders.

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

REASONS FOR JUDGMENT

Judge Taglieri

1. This ruling is delivered late, but in accordance with Order 3 of the Orders I made on 8 June 2023.

2. During the course of the hearing on 8 June 2023, while making her submissions in respect of the alleged error of law relied upon, the Applicant made a number of submissions, the effect of which were that the Administrative Appeals Tribunal (“Tribunal”) below ignored much of the evidence relating to the Second Respondent having benefits beyond ordinary taxable income. She says these ought to have been taken into account for the purposes of deciding the Second Respondent’s adjusted taxable income pursuant to s 43(1) of the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”).

3. The Applicant stated:[1]

   EOI20:Your Honour, anything that I provided, which is pretty much the entire of the court book, was – it wasn’t – it wasn’t talked about in any – any decision.

   [1] Transcript of Proceedings dated 8 June 2023 (“Transcript”) on page 14, line 38.

4. Consequently, I raised with Counsel for the First Respondent that it appeared the Applicant’s submissions asserted potential error of law based on the Tribunal providing inadequate reasons for its decision.[2]

   [2] Transcript on page 15, lines 44 to 46.

5. I enquired of Counsel whether the Court should give leave to the Applicant to rely on an additional ground of error of law.

6. Counsel submitted that this was opposed,[3] essentially on two bases.  First, that to the extent the Applicant made complaints at the Tribunal hearing that no one had looked at her material and referred to it in its decision, she has not formulated in this application a ground of legal error based on that complaint. Accordingly, he contended that the Court should infer that she had made a forensic decision not to take the complaint before the Court. 

   [3] Transcript on page 16, lines 20 to 21.

7. Second, Counsel submitted that the Court could be comfortably satisfied that the ground sought to be relied on has no reasonable prospect of success, and so leave should not be given to rely on the further ground.[4]

   [4] Transcript on page 16 , lines 35 to 45.

8. Counsel also submitted that if the Court did give leave to the Applicant to rely on an additional ground, the First Respondent should be permitted to make further submissions in respect of the ground.

9. Discussion then occurred between myself and Counsel, during which I clarified what I understood the Applicant’s contentions to be about inadequate reasons.  I granted the Applicant leave to seek to amend and made directions about determining if leave should be given to rely on the additional ground.

10. On 22 June 2023, the Applicant filed and I presume served an amended Notice of Appeal, including the additional ground upon which she sought to rely based on submissions during the hearing on 8 June 2023.  The ground sought to be relied upon is:

    That the Tribunal failed to provide adequate reasons for preferring the evidence of the Second Respondent as dispositive of the evidence pertaining to the considerations in s.43(1) of the Child Support Assessment Act, where there was evidence from the Applicant tending to contradict the evidence of the Second Respondent.

11. The First Respondent accepts it is a model litigant and does not claim any particular prejudice against it if leave is granted for the Applicant to rely on the additional ground.

12. I reject the suggestion by the First Respondent that the Applicant made a forensic decision to not rely on the ground on which she now seeks to rely. The Applicant is not a lawyer and has no particular skill in formulating in legal terms what she intends to convey is legal error. It cannot reasonably be said that she has any forensic skill attaching to how she expresses grounds in this application. However, it is abundantly clear that she complains about the lack of rigour in Tribunal’s consideration of evidence before it and absence of reasons which disclose why it adopted the evidence relied on by the Respondents.

13. While Counsel for the First Respondent submitted that the Tribunal’s decision did reveal the basis upon which the evidence upon which the Applicant relied was rejected at [16] of the reasons. At this threshold level, I do not accept that is so. The Tribunal reasons at [16] simply recite what the Applicant contended about the state of the evidence from herself and the Second Respondent.

14. At [21] and [22] of its reasons, the Tribunal identified what evidence the First Respondent used to arrive at a figure for the Second Respondent’s adjusted taxable income of $94,811, but it does not give reasons for apparently rejecting the Applicant’s evidence. Then at [25] and [26] of its reasons, the Tribunal simply concludes that the issues raised by the Applicant are more properly considered in the context of a change of assessment application under Part 6A of the Assessment Act and does not state why it was not amenable to objection under s80 of the Child Support (Registration and Collection) Act 1988 (Cth). Further, reading [27] and [28] of the Tribunal reasons, they appear to be conclusions and findings absent of reasons.

15. The duty to give reasons is express in s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) and has been subject to a number of authorities which inform the scope of the duty and what it entails. At this juncture, I am not willing to say that the additional ground upon which the Applicant has sought to rely has no prospect of success. For example, in Wonson v Comcare [2020] FCAFC 76, Katzmann, Anastassiou and Abraham JJ at [111] observed that:

    It might have been open to the Tribunal to come to the conclusion it did … [but] “[c]onclusions as to significant facts in dispute are likely to require explanation, if persons affected by the decision are to be given an understanding of the basis for the decision” for, without one, they are unlikely to understand why they lost: Alexander v Australian Community Pharmacy Authority (2010) 233 FCR 575 at [78] (Bromberg J).”

    [emphasis added]

16. As there is no asserted prejudice and for all the above reasons, the court exercises its discretion and grants leave to the Applicant to rely on the additional ground of asserted error of law. I consider it is in the interest of justice to grant such leave. It is also pertinent to note that the Applicant has filed an Amended Notice of Appeal identifying the additional ground, to the extent it does not include the Particulars that referred to in in Order 2 of the Orders made 8 June 2023, I consider the First Respondent is on notice of those particulars and should address them if it wishes to do so in the submissions it will now be permitted to file.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri.

Associate:

Dated:       17 August 2023