FEDERAL COURT OF AUSTRALIA
EOI20 v Child Support Registrar [2023] FCA 145
Appeal from: EOI20 v EOJ20 [2022] FedCFamC2G 136 File number(s): TAD 10 of 2022 Judgment of: MCELWAINE J Date of judgment: 1 March 2023 Catchwords: ADMINISTRATIVE LAW – Appeal from a decision of the Federal Circuit and Family Court of Australia (Division 2) – application for judicial review of a child support decision of the Administrative Appeals Tribunal – whether primary judge erred in failing to find an error of law – no error by the primary judge established – no question of general principle involved – appeal dismissed Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44AAA(1)
Child Support (Assessment) Act 1989 (Cth) ss 4(1), 98C, 98S, 98K, 112, 116, 117, 118
Cases cited: EOI20 v EOJ20 [2022] FedCFamC2G 136
Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39
Aronson M, Groves M and Weeks G, Judicial Review of Administrative Action and Government Liability (7th ed, Thomson Reuters, 2022) Division: General Division Registry: Tasmania National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 49 Date of hearing: 15 December 2022 Counsel for the Appellant: The Appellant appeared in person Solicitor for the First Respondent: Ms K Whittemore of Spark Helmore Counsel for the Second Respondent The Second Respondent did not appear ORDERS
TAD 10 of 2022 BETWEEN: EOI20
Appellant
AND: CHILD SUPPORT REGISTRAR
First Respondent
EOJ20
Second Respondent
ORDER MADE BY:
MCELWAINE J
DATE OF ORDER:
1 MARCH 2023
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant is to pay the first respondent’s costs as assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MCELWAINE J:
The principal object of the Child Support (Assessment) Act 1989 (Cth) (the Act) is to “ensure that children receive a proper level of financial support from their parents”: s 4(1). The central grievance of the appellant, who at all times has been self-represented, is that by virtue of certain administrative determinations, her former partner and the father of their two children, the second respondent EOJ20, has not contributed to the extent to which he is obliged pursuant to the Act. Although EOJ20 is named as a respondent to this appeal, he has played no active role in it. The history of applications, decisions by a delegate of the Child Support Registrar (Registrar), review by the Administrative Appeals Tribunal (Tribunal) and an earlier appeal to this Court is tortuous. To assist in understanding these reasons, it is desirable to record some of the history.
In March 2002, child support became payable for two children of the appellant and the father by operation of the administrative assessment provisions at Part 4 of the Act. In December 2019, the eldest child ceased to be eligible for child support and the appellant made an application to the Registrar under Part 6A of the Act to…
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Details
- Case
- [2023] FCA 145
- Decision Date
CaseChat Overview and Summary
The appeal in EOI20 v Child Support Registrar was brought by the appellant, the mother, against the decision of the Administrative Appeals Tribunal (AAT) to uphold the Child Support Registrar's decision to not depart from the administrative assessment of child support for her two children. The primary judge dismissed the appeal, and the appellant now appeals to the Federal Circuit Court of Australia. The central issue in this appeal is whether the primary judge erred in finding no error in the AAT's decision.
The court examined the appellant's arguments and found that they did not establish any factual or legal error in the primary judge's reasoning. The appellant's arguments primarily focused on the merits of the case and did not identify any error in the primary judge's findings. The court held that the primary judge had correctly found that the AAT's decision was not based on any error of law and that the appeal should be dismissed. The court also noted that the appellant's notice of appeal was poorly drafted and did not clearly identify the grounds of appeal, but allowed the appeal to proceed based on the grounds stated in the amended notice of appeal.
The court dismissed the appeal and ordered the appellant to pay the first respondent's costs. The court found that the primary judge's decision was correct and that there was no error in the AAT's decision to uphold the Child Support Registrar's decision. The court held that the appeal was not an opportunity for the appellant to re-agitate arguments that were put to the Tribunal concerning the merits of the case, but rather to identify any error in the primary judge's reasoning. As no such error was found, the appeal was dismissed.
The court examined the appellant's arguments and found that they did not establish any factual or legal error in the primary judge's reasoning. The appellant's arguments primarily focused on the merits of the case and did not identify any error in the primary judge's findings. The court held that the primary judge had correctly found that the AAT's decision was not based on any error of law and that the appeal should be dismissed. The court also noted that the appellant's notice of appeal was poorly drafted and did not clearly identify the grounds of appeal, but allowed the appeal to proceed based on the grounds stated in the amended notice of appeal.
The court dismissed the appeal and ordered the appellant to pay the first respondent's costs. The court found that the primary judge's decision was correct and that there was no error in the AAT's decision to uphold the Child Support Registrar's decision. The court held that the appeal was not an opportunity for the appellant to re-agitate arguments that were put to the Tribunal concerning the merits of the case, but rather to identify any error in the primary judge's reasoning. As no such error was found, the appeal was dismissed.
Orders
Orders of the court
1. The appeal is dismissed.
2. The appellant is to pay the first respondent’s costs as assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
I have given careful consideration to each of the appellant’s arguments as set out in her written submissions (which with respect do not assist in the articulation of her appeal grounds) and as more particularly refined in answer to questions that were put by me during the hearing of the appeal. I have concluded that there is no error in the careful reasons of the primary judge and that the appeal must be dismissed.BACKGROUND The primary judge carefully summarised the relevant background at PJ [4]-[35], which is not in issue and which for convenience I reproduce (with some deletions which do not affect the context or meaning):4.The applicant and the first respondent are the separated parents of two children. A child support assessment has been in place for the children since 15 March 2002. While the older child ceased to be an eligible child for child support in December 2019, orders have been made for the first respondent to make adult child maintenance payments in respect of that older child.5.As stated, LNG69/2020 is an appeal from a decision made by the Tribunal on 10 September 2020 and LNG82/2020 is an appeal from a decision of the Tribunal made on 13 November 2020.6.On 6 August 2018, the applicant made an application for a departure determination in relation to the child support assessment on the basis that:•the costs of maintaining the child were significantly affected by the child’s special needs; and•the child support assessment was unfair because of the first respondent’s income, property and financial resources.7.The special needs relied upon related to various orthodontic and other medical expenses incurred in relation to the older child. In relation to orthodontic treatment, the applicant stated that she had already paid $1,900 for stage one of that treatment some years ago and that the older child now requires additional orthodontic treatment at a cost of $7,000. The applicant also relied upon costs that she had incurred for the children’s speech therapy, chiropractic treatment, tonsillectomy, adenoid removal and grommets. Some of these expenses incurred by the applicant dated back to 2008.8.Insofar as the first respondent’s income, property and financial resources are concerned, it has consistently been put by the applicant that the first respondent has understated his income and has failed to fully disclose financial resources available to him. At various times, the applicant has also raised concerns about the manner in which the second respondent has assessed the first respondent’s adjusted taxable income.9.On 15 November 2018, a delegate of the Child Support Registrar refused the applicant’s application. On 29 November 2018, the applicant objected to the November 2018 decision. 10.By decision made on 21 January 2019, the objection was allowed in part. The objection decision noted ‘the costs attributable to (the older child’s) special needs (orthodontic and speech therapy treatment) do significantly affect the costs of maintaining him overall.’ The decision-maker went on to find that the costs of the orthodontic and speech therapy treatment was over $7,000, and that the parents should each contribute half of these costs.11.On 29 January 2019, the applicant sought a review of the Child Support Registrar’s January 2019 decision in the Social Services & Child Support Division of the Tribunal.12.On 16 July 2019, the Tribunal varied the January 2019 decision and increased the first respondent’s child support to reflect the conclusion reached that the father ought to be responsible for 75% of the orthodontic and speech therapy costs.13. Relevantly, in its July 2019 decision, the Tribunal noted:[12]A substantial part of the material provided by [the applicant] to the Department referred to expenses incurred prior to 6 February 2017, the 18 month period from the date of the application for which the Registrar (or the Tribunal standing in place of the Registrar) may make a departure determination, in accordance with section 98S of the Act.[13]... I do not have jurisdiction to make a determination for a period of more than 18 months before [the applicant’s] application for a change of assessment on 6 August 2018. My review is therefore limited to the matters contemplated by the objections officer in their decision of 21 January 2019.14.The Tribunal further concluded that the applicant had incurred total expenses of $2,330 in 2018 for orthodontic costs and speech therapy and that she would need to pay the balance of $5,200 in orthodontic costs over the following two years.15.After considering all of the arguments put to it, the Tribunal concluded that the total costs of the orthodontic treatment and speech therapy were $7,530 and that the first respondent ought to contribute 75% to these costs, to be paid over two years. The Tribunal therefore concluded that:The decision under review is varied so that the rate of child support payable by [the first respondent] is increased by $2,824 per annum from 1 November 2018 to 31 October 2020. 16.On 28 January 2020, in separate proceedings brought by the applicant against the first respondent, Judge McGuire also ordered that the first respondent contribute $184 per week by way of adult child maintenance for the older child, who had turned 18 by that stage, and that such payments continue until 1 December 2022. 17.It is against this background that the two matters currently before the court arise.18.As noted, the Tribunal’s July 2019 decision only related to those costs incurred by the applicant in the 18 months prior to her application for a departure determination on 6 August 2018.19.On 7 January 2019, the applicant filed an application in this court for an order under the Assessment Act granting leave to the Child Support Registrar to change an assessment more than 18 months old. On 8 May 2019, Judge McGuire (as he then was) made an order pursuant to section 112 of the Assessment Act permitting an application for a departure order out of time to be made and referring the matter to the Child Support Registrar for determination.20.On 9 December 2019, the applicant then applied for a departure from the administrative assessment of child support for the two children for the period from 7 January 2012.21.The grounds on which a departure order may be made are set out in section 117(2) of the Assessment Act. In her application, the applicant relied upon two of the statutory grounds, namely that the children have special needs and that the assessment did not correctly reflect the first respondent’s income, property and/or financial resources.22.On 26 February 2020, a delegate of the Registrar found that the reasons identified by the applicant as the basis for a departure order were not satisfied. 23.On 4 March 2020, the applicant lodged an objection to the delegate’s decision. On 13 April 2020, the first respondent responded to the applicant’s objection and made a cross-application for a departure order.24.On or about 6 May 2020, the applicant provided a reply to the first respondent’s response and cross-application.25.On 29 May 2020, an objections officer disallowed the objection and affirmed the decision made by the delegate of the Registrar on 26 February 2020 (‘objection decision’). 26.The applicant applied to the Social Services & Child Support Division of the Tribunal for a review of the objection decision on 2 June 2020. The applicant provided a written submission to the Tribunal. On 10 September 2020, the Tribunal handed down its decision in relation to the applicant’s application for review filed 2 June 2020.27.In that decision, the Tribunal affirmed a decision of an objections officer of the Child Support Registrar disallowing the applicant’s objection to a decision not to make a determination departing from the administrative assessment in force in relation to the children under section 98C of the Assessment Act.28.At paragraphs [1] to [9] of its decision record, the Tribunal sets out the history to this matter.29.At paragraph [13] of the decision record, the Tribunal notes that in light of the 16 July 2019 Tribunal decision, which relates to the period of 1 November 2018 to 31 October 2020, for the purposes of the current review, the relevant period under review was 7 January 2012 to 31 October 2018.30. The Tribunal then set out its consideration of the following factors:(a)the first respondent’s income and financial resources; (b)the first respondent’s salary and employment benefits; (c)the first respondent’s rental property; and(d)other financial resources available to the first respondent. 31. The Tribunal then concluded at paragraphs [32] to [33]:[32]There was no evidence that [the first respondent] had any significant assets that would render the assessment of child support as unjust or inequitable.[33]The Tribunal decided that there are no special circumstances in this case that make the administrative assessment unjust and inequitable due to the income or financial resources of [the first respondent].32.The Tribunal went on to consider whether in the circumstances of the case, the administrative assessment was unjust or inequitable by reference to the special needs of the children at paragraph [34] and following of the decision record.33.Relevantly, at paragraphs [36] and [37], the Tribunal set out the applicant’s evidence about the costs she had incurred in relation to medical and related expenses for each of the children. The Tribunal noted that the most significant costs related to stage one orthodontic expenses of $1,900, which the applicant incurred prior to 2012. The Tribunal noted that the applicant financed those costs through loans that were paid off over time, however, it further noted that ‘the financed costs incurred after 7 January 2012 are not medical costs incurred after 7 January 2012.’ The Tribunal went on to say that the additional medical costs were relatively minor when considered in the context of the child support paid over the relevant period.34.At paragraph [40] of the decision record, the Tribunal concluded that there were ‘no special circumstances in this case that make the administrative assessment unjust and inequitable due to the special needs of the children.’35.Consequently, the Tribunal affirmed the decision under review.(Original emphasis. Footnotes omitted.)THE DECISION OF THE PRIMARY JUDGE
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Separately, on 10 October 2019, the Registrar determined that with effect from 1 November 2019, the father’s adjustable taxable income of $88,285 would be taken to be his assessable income for the purposes of the administrative assessment. The appellant objected to that decision and on 16 December 2019, her objection was disallowed. On 12 January 2020, the appellant applied to the Tribunal to review the objection decision. On 6 April 2020, the Tribunal dismissed the application for review. On 12 August 2020, this Court quashed by consent that decision of the Tribunal and remitted the application for determination according to law on the ground that there had been a denial of procedural fairness. On 13 November 2020, the Tribunal again dismissed the review and affirmed the objection decision. I refer to this as the assessment decision. From each decision on 23 December 2020, the appellant appealed to the Federal Circuit Court of Australia. Each appeal was heard by her Honour Deputy Chief Judge Mercuri on 3 May 2021. Her Honour for reasons published on 4 March 2022, dismissed each appeal with costs: EOI20 v EOJ20 [2022] FedCFamC2G 136 (PJ). On 1 April 2022, the appellant lodged a notice of appeal from the orders made by the primary judge. The notice of appeal is prolix. It combines various contentions about error (which appear to be submissions) with 17 “grounds of appeal”. Attention was drawn to the unsatisfactory nature of that document when the appeal was case managed. Leave was granted to the appellant to file an amended notice of appeal together with an outline of submissions and a chronology of relevant events by 5 August 2022. A further document in the form of an amended notice of appeal was filed on 10 August 2022. It too combines submissions with 14 “grounds of appeal”. The difficulty with the amended notice of appeal is that it expresses the fundamental misunderstanding of the appellant that this appeal is an opportunity to re-agitate arguments that were put to the Tribunal which concern the merits. The notice commences with a preamble of 38 paragraphs commencing with “facts relied on…..which establish an error or principle or a substantial injustice”. Then follows the 14 appeal grounds, some of which are drafted by adopting grounds of review from the Administrative Decisions (Judicial Review) Act 1977 (Cth) and no attempt is made to identify error by the primary judge. The Registrar, who was the second respondent in the proceeding below and is the first respondent to this appeal, raised no objection to the drafting of that document and was content that the appeal be determined by reference to it. Accordingly, at the commencement of the hearing of the appeal, I granted leave to rely on it and the grounds stated therein. In oral argument before me, I invited the appellant to, in her own words, explain her complaints that are central to her appeal grounds. I explained to the appellant that the grounds serve to obscure rather than to illuminate the complaints. Very sensibly, counsel for the Registrar, Ms Whittemore, was content to address the arguments as they were developed. It should also be understood that many of the arguments put to me by the appellant invited merits review of all of the material that was before the original decision-makers or the Tribunal. As I repeatedly explained to the appellant it is not open to me upon this appeal to examine the merits of the various contentions that she relies upon and that for her arguments to succeed she must identify factual or legal error in the reasoning of the primary judge that founds the orders as made.
Ratio Decidendi
Legal Principle Established
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