Eoi20 v Child Support Registrar (No 2)
[2024] FedCFamC2G 14
•12 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EOI20 v Child Support Registrar (No 2) [2024] FedCFamC2G 14
File number(s): LNG 9 of 2022 Judgment of: JUDGE TAGLIERI Date of judgment: 12 January 2024 Catchwords: CHILD SUPPORT – application for judicial review of a child support decision of Administrative Appeals Tribunal – adjusted taxable income – where the applicant objected to the first respondent’s decision about the value of adjusted taxable income used for the payer in the administrative assessment of child support – whether applicant can establish an error of law – where constructive failure to discharge its function on the review amounted to an error of law – jurisdictional error established – appeal allowed – Tribunal decision set aside and remitted to be heard according to law Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44AAA
Child Support (Assessment) Act 1989 (Cth) ss 41, 43(1), 56, 98B
Child Support (Registration and Collection) Act 1988 (Cth) s 80
Fair Work Act 2009 (Cth)
Migration Act 1958 (Cth)
Cases cited: Child Support Registrar & Crabbe and Anor [2014] FamCAFC 10
Cromer v Caswell [2020] FCCA 1037
EOI20 v Child Support Registrar [2023] FCA 145
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429
PJ & Child Support Registrar (SSAT Appeal) [2007] FMCAfam 829
Walter v Fisher [2022] FedCFamC2G 136
Division: Division 2 General Federal Law Number of paragraphs: 68 Date of last submission/s: 30 August 2023 Date of hearing: 8 June 2023 Place: Hobart For the Applicant: The Applicant in person Counsel for the First Respondent: Mr Hillyard Solicitor for the First Respondent: Sparke Helmore For the Second Respondent: The Second Respondent did not appear 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:
12 JANUARY 2024
THE COURT ORDERS THAT:
1.The decision of the Tribunal dated 14 January 2022 is set aside.
2.The matter is remitted to the Administrative Appeals Tribunal to be redetermined according to law by a differently constituted Tribunal.
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 s 110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).
REASONS FOR JUDGMENT
JUDGE TAGLIERI
This judgment concerns an appeal to this Court pursuant to s 44AAA of the Administrative Appeals Tribunal Act 1975 (Cth). On such an appeal, the Court’s jurisdiction is limited to determining whether the Tribunal below erred in respect of a question of law.
On 29 January 2021, the Applicant lodged an objection to a decision of the First Respondent concerning the administrative assessment of child support concerning a child.[1] The objection raised two challenges but only one is relevant to this appeal, being the decision about the adjusted taxable income (“ATI”) used for the Second Respondent (who is the “Payer” for the purposes of this matter and will hereafter be referred to as such).
[1] Court Book, p 44.
By decision of 14 January 2022, the Tribunal decided that for the 2019/2020 period the ATI of the Payer was $94,811 and that this sum applied for the child support assessment period commencing 1 November 2020.
The only issue in this case is whether the Tribunal erred in law in fixing the Payer’s ATI at $94,811.
ERROR OF LAW – PRINCIPLES
Error of law in the context of child support proceedings has a particular meaning and this has been the subject of judicial consideration. What constitutes a “question of law” was the subject of the Full Court of the Family Court’s decision in Child Support Registrar & Crabbe and Anor [2014] FamCAFC 10 (“Crabbe”) at [54]. In Cromer v Caswell [2020] FCCA 1037, the Court summarised the principles from Crabbe as follows:[2]
[2] At [16].
•The question of whether there is evidence to support a finding of fact or an inference drawn from a finding of fact is a question of law;
•The making of a finding of fact or the drawing of an inference, in the absence of evidence, is an error of law;
•However, a wrong finding of fact is not necessarily an error of law, if it was based on evidence available to the decision maker;
•As a consequence, a finding of fact based on a faulty process of reasoning is not an error of law;
•Judicial review is not to be over zealous in seeking to find inadequacy or reasoning and so inadvertently turn judicial review of an administrative decision maker into a reconsideration of the merits of the relevant decision;
•An administrative tribunal is required to do no more than set out the findings which it did make on facts which it considered material to the decision made.
[emphasis in original, citations omitted]
Critically, as can be seen from the above principles, where a conclusion is open on the facts or certain facts are preferred to others, this does not constitute an error of law.
ALLEGED ERRORS OF LAW
The Applicant has been self-represented throughout the proceedings before the Tribunal and on this appeal. The way she has expressed the grounds of appeal and presented her contentions is confusing, complex and somewhat misguided.
On 17 February 2023, I made a ruling that the Notice of Appeal filed 29 July 2022 sought to be relied upon by the Applicant disclosed a single question of law, being that contained at [1] of the Notice under the heading “Question of law”:
Operation of section 43 of the Child Support Assessment Act 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).
On 8 June 2023, I conducted a hearing of the appeal. The Payer had been served and I received evidence of proof of service on him,[3] but he did not appear at the hearing.
[3] Affidavit of Service filed 4 October 2022 and Affidavit of Service filed 8 March 2023.
The First Respondent participated fully in the hearing through counsel and the Applicant represented herself. The parties agreed that the Court should receive into evidence the Court Book filed by the First Respondent pursuant to directions I had previously made. In addition to the Court Book, the First Respondent relied on written submissions filed 2 February 2023.
The Applicant sought to rely on the Court Book as well as the following materials:
(a)Written submissions filed on 20 January 2023;
(b)An affidavit filed on 4 April 2022, that annexed a considerable number of documents; and
(c)An affidavit filed on 27 October 2022, annexing the transcript of the proceedings in the Tribunal on 30 November 2021.
The First Respondent objected to the Court reading and receiving the affidavit and annexures filed on 4 April 2022 in its entirety, except for a particular annexure.[4] The objection was on the basis of relevance and it was submitted that not all the annexed documents were before the Tribunal at the hearing on 30 November 2021. I received the affidavit as read de bene esse and on the condition that I would only consider those documents whose content was relevant to the merits review conducted by the Tribunal below, which would be evident from the decision of 14 January 2022.
[4] That annexure being a decision of the former Social Security Appeals Tribunal: Morgan v Registrar [2010] SSATACSA 20.
During oral argument, the nature of the Applicant's complaints and submissions appeared to articulate an error of law relating to a failure to provide adequate reasons. This was not the subject of her application and after hearing submissions I granted leave for the Applicant to apply to amend her application to rely on an additional ground,[5] namely:
[5] Orders dated 8 June 2023, Order 2.
… 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.
Particulars
a. The evidence that the Applicant referred to in submissions being:
i. The documents at page 130 of the Court Book;
ii. The documents at page 176 of the Court Book;
iii. The documents at page 174 of the Court Book;
iv. The documents at page 175 of the Court Book; and
v. The Enterprise Agreement and paragraph 20 and 24 of the Applicant’s affidavit.
Because the First Respondent had not had notice of the oral submission and asserted error of law about adequacy of reasons, I also made an order giving leave to the First Respondent to file and serve written submissions in reply to the further question of law.
Pursuant to the leave granted on 8 June 2023, the Applicant purported to file an Amended Application for Appeal but its terms went partly beyond that for which leave was granted. Accordingly, this appeal will only be determined on the basis of the grounds properly raised according to the Court’s orders, being those set out at [8] and [13] above.
The First Respondent filed written submissions it relied upon in respect of the second alleged ground on 30 August 2023.
ISSUES TO BE DETERMINED
The outcome of this appeal depends on deciding if the Tribunal erred by accepting information in the Payer’s tax return are dispositive of the considerations in s 43(1) of the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”) when determining his ATI, and whether the written reasons of the Tribunal dated 14 January 2022 are inadequate and amount to an error of law.
Section 43(1) of the Assessment Act provides:
Subject to this Part, a parent’s adjusted taxable income for a child for a day in a child support period is the total of the following components:
(a) the parent’s taxable income for the last relevant year of income in relation to the child support period, disregarding the parent’s assessable FHSS released amount (within the meaning of the Income Tax Assessment Act 1997) for that year of income;
(b) the parent’s reportable fringe benefits total for that year of income
(c) the parent’s target foreign income for that year of income;
(d) the parent’s total net investment loss (within the meaning of the Income Tax Assessment Act 1997) for that year of income;
(e) the total of the tax free pensions or benefits received by that parent in that year of income;
(f) the parent’s reportable superannuation contributions (within the meaning of the Income Tax Assessment Act 1997) for that year of income.
GROUND 1 – SUBMISSIONS
The Applicant's written submissions filed 20 January 2023 are extensive and attach transcripts of proceedings before the Federal Court, as well as chronological information about the history preceding the Tribunal decision that is the subject of this appeal. Much of this is not particularly relevant or helpful when deciding the two questions of law and whether the Tribunal erred in law.
The submissions of relevance are those at [7]-[27] and [29]-[30] of the Applicant’s written submissions filed 20 January 2023. During the hearing, the Applicant repeated the substance of her written contentions in a similar manner, emphasising that the Tribunal had:
·simply accepted the information in the Payer’s tax return and his statements previously given that he did not receive benefits other than those recorded in the tax return;
·ignored evidence she had produced about other income within the description of the considerations in s 43(1) of the Assessment Act; and
·treated her objection to be without merit because her arguments were relevant to a change of assessment process.
The Applicant also sought to refer the Court to the documents annexed to her affidavit of 4 April 2022 but many of those were not before the Tribunal when it heard her review on 30 November 2021. These documents were said by the Applicant to support her contentions that the Payer was in receipt of income additional to what was captured as taxable income within the meaning of s 56 of the Assessment Act. To the extent that the documents were not before or referred to in either of the hearings before the Tribunal, I do not take them into account as they could not form the basis of legal error. The enterprise agreement was referred to at both hearings and is the subject of registration pursuant to the Fair Work Act 2009 (Cth). It is an instrument which has the force of law and is capable of being readily accessed.
The First Respondent did not dispute that the first ground was one which engaged this Court’s jurisdiction. Its contentions in relation to this are set out at [6]-[11] of the written submissions filed 31 March 2023 and provide, in summary, that:
·Contrary to the Applicant’s assertions, the Tribunal properly understood the application of s 43(1) of the Assessment Act to be requiring it to consider the matters listed within that section, not as a deeming provision under which it is bound to apply figures from a payer’s tax return;
·Paragraphs [21]-[28] of the Tribunal’s decision demonstrate its consideration of the s 43(1) matters in the context of the evidence before it; and
·Nothing in the evidence before the Tribunal caused it to doubt the correctness of the figures in the Payer’s tax return and that this conclusion – to prefer that evidence to what was put forward by the Applicant – was open to it.
During oral submissions at the hearing, counsel for the First Respondent reiterated that the written reasons of the Tribunal demonstrated that, contrary to what the Applicant claimed, the Tribunal considered all evidence before it but ultimately preferred the information in the Payer's tax return as being more reliable evidence of the components of the ATI to be fixed pursuant to s 43(1) of the Assessment Act.
Counsel emphasised that merely because the Tribunal did not prefer or accept the evidence relied upon by the Applicant, this did not constitute an error of law and that the Tribunal’s written reasons disclosed the evidence relied upon by the Applicant had been considered.
GROUND 2 – SUBMISSIONS
The alleged failure of the Tribunal to provide adequate reasons relates to the Applicant’s assertion that evidence she submitted was not “talked about” in the written decision. The evidence to which the Applicant refers is capable of being discerned from her written submissions and from what she submitted orally at the hearing on 8 June 2023.
Essentially, the Applicant’s complaint is that the Tribunal reasons demonstrate that certain evidence she provided was not referred to and so not considered. Further, no reasons were given for dismissing her evidence or not seeking further information before determining whether the ATI had been correctly fixed pursuant to s 43(1) of the Assessment Act. The evidence referred to was that:
·An extract from a submission;[6]
·The Payer received rental income in the relevant period;[7]
·The Payer received benefits from his employment, including a company car, petrol card and phone, that were not reflected in his tax return;[8]
·The Payer received income through a trust;[9] and
·The Payer salary-sacrificed to superannuation and these payments were not reflected in his tax return.[10]
[6] Court Book, p 130.
[7] Court Book, p 174.
[8] As noted in the Enterprise Agreement relating to the Payer’s employment.
[9] Court Book, p 175.
[10] Court Book, p 176.
The First Respondent contends that while framed in terms of an error of law by virtue of failing to provide adequate reasons, the Applicant effectively seeks to reagitate the merits of the Tribunal decision, which is impermissible.[11]
[11] First Respondent’s written submissions filed 30 August 2023 at [4], and [41]-[56].
In summary, the First Respondent contends that:
·The Tribunal discharged its decision-making responsibility by providing reasons that demonstrated it engaged with issues and evidence before it and exposed its reasoning process.
·The Applicant's evidence regarding matters under s 43(1) that she said were relevant to the Tribunal's decision were “unsupported and speculative assertions” and it was not surprising the Tribunal preferred the evidence of the Payer's ATI as determined by the Australian Taxation Office (“the ATO”).
·It was not surprising the Tribunal did not reference particular documents relied upon by the Applicant in its decision because they were not relevant to the issue before it. More specifically, that evidence was not relevant because:
·It related to change of assessment provisions or adult child maintenance (and not decision-making under s 43(1));
·It contained information relating to periods outside the timeframe relevant to the Tribunal’s decision (trust distribution payments in 2001 and superannuation contributions in 2005);
·The evidence drawn from the ATO about rental income or loss was quantified and more relevant than a discrepancy as to the date of sale of the investment property; and
·It had not been before the Tribunal when it made its decision and should not be admitted into evidence by this Court because it cannot be an error of law for the Tribunal to have failed to consider something that was not before it.
EVALUATION – GROUNDS 1 AND 2
It is convenient to deal with both grounds together as they are inextricably linked. That is because whether the Tribunal confined itself to the information provided by the ATO as dispositive in fixing the ATI is to be evaluated by considering the Tribunal’s reasons and how it dealt with the evidence that the Applicant relied upon as showing that the Payer was likely in receipt of income or benefits within the description of s 43(1)(a) to (f) of the Assessment Act. Further, the content and terms of the Tribunal’s reasons inform whether evidence referred to in ground 2 was considered for the purpose of the Tribunal determining the Payer’s ATI.
The parties and Tribunal proceeded on the basis that a decision taken by the First Respondent about a payer’s ATI is amenable to objection pursuant to s 80 of the Child Support (Registration and Collection) Act 1988 (Cth) (“the Registration Act”).[12] That is plainly correct and it is therefore strange that the Tribunals below took the view that the Applicant’s complaint about the decision fixing the Payer’s ATI would be more appropriately dealt with under a departure or change of assessment application.
[12] Court Book, p 246 at [14].
The Senior Member whose decision is now subject of appeal cited the views of the previous Member accepting that in some “unusual circumstances” it was possible that a factual and legal error could be made when fixing a person’s ATI.[13]
[13] Court Book, p 248 at [26].
The Applicant in effect says that the Tribunal wrongly confined itself to accepting the statement by the Payer that all income received was reflected in his tax return for the relevant assessment period and that it ignored evidence which contradicted that statement.Further, the Applicant submits that the transcripts of the proceedings before the Tribunal show there was no attempt to “evaluate” original communication from the ATO to the Child Support Agency. Nor, according to the Applicant, did the Tribunal refer to documents the ATO would have in their possession when considering the ATI to be attributed to the Payer under s 43 of the Assessment Act for the relevant assessment period.[14]
[14] Applicant’s written submissions filed 20 January 2023, [7].
The Applicant argues that the Senior Member whose decision is the subject of this appeal simply agreed with the previous Member that figures reported by the Commissioner of Taxation were final when deciding the Payer’s ATI.[15]
[15] Applicant’s written submissions filed 20 January 2023 at [8].
At [10]-[13] of her written submissions filed 20 January 2023, the Applicant refers to evidence she had previously provided to the First Respondent and the various Tribunals which, in her view, demonstrated there was evidence available to contradict the Payer’s claim that he did not receive income or benefits other than those disclosed in his tax return. The Applicant purports to make her case by showing what she said were inconsistencies, errors or unreliability between documents before the Tribunal and statements made by the Payer about the accuracy of the recorded information in his tax return and held by the ATO.
Based on the evidence contained in the Applicant’s affidavits and the Court Book, there is nothing to suggest that the Payer had target foreign income or a tax-free pension or benefit in the tax year in question. Accordingly, on the materials before the Tribunal the components referred to in s 43(1)(a), (b), (d) and (f) of the Assessment Act are those that were potentially to be totalled to arrive at the ATI for the Payer.
The Tribunal had before it the following evidence relating to the Payer:
(a)He was a tradesperson in 2020,[16] and professional at B Company;[17]
(b)He had a company supplied vehicle and made a declaration about the use of the vehicle for fringe benefit tax purposes on 31 March 2021;[18]
(c)He held superannuation with Super Fund 1 in 2020;[19]
(d)He received income from salary or wages of $1779 per week gross and rental income of $195 per week,[20] compared to $185 per week,[21] and a trust distribution from C Company of $6 per fortnight;[22]
(e)Was making repayments towards a home loan with ANZ Bank;[23]
(f)Had an investment property that was sold before 1 July 2019;[24] and
(g)Tax return records for the 2017 and 2018 financial years showing modest deductions, a rental property loss in one year and no other losses or tax off-sets, no reportable fringe benefits or reportable superannuation contributions, and a private health rebate.[25]
[16] Court Book, p 166.
[17] Court Book, p 162.
[18] Court Book, p 183.
[19] Court Book, p 172.
[20] Court Book, p 167.
[21] Court Book, p 141.
[22] Court Book, p 141.
[23] Court Book, p 148.
[24] Court Book, pp 210-211.
[25] Court Book, pp 116-129.
At the Tribunal hearing on 24 June 2021 the Member asked the Payer a number of questions. His answers were relevantly as follows but I note that, based on the transcript, his statements do not appear to have been given on oath or affirmation:
·In response to the question of whether he had his 2019/2020 tax return, the Payer said “yes” but it does not appear to have been produced or received in evidence and importantly, it does not appear in the Court Book filed for this appeal.[26]
·When asked if the tax return reported any reportable fringe benefits, the Payer did not answer directly and instead gave an answer relating to documents described as B1 to 6, which are some but not all of the documents appearing in Tab 3 of the Court Book filed in these proceedings. The Payer claims that he signed the declaration and used his own private vehicle for personal travel.[27]
·Regarding the investment property, the Payer said he did not receive rent in the 2019/2020 financial year as he thought the sale had finalised just before the start of that period.[28]
·When asked if he made superannuation contributions beyond 10% of his taxable income, the Payer said “no”.[29]
[26] Court Book, p 210, line 16.
[27] Court Book, p 210, lines 34-39.
[28] Court Book, p 211, lines 1-2.
[29] Court Book, p 211, line 11.
The Applicant had supplied evidence relevant to the components to be added to arrive at an ATI pursuant to s 43(1) of the Assessment Act, including that:
·The Payer had made personal contributions to superannuation in the past, early 2000s;[30]
·The Payer had sold his investment property in mid-2020;[31]
·There were mathematical discrepancies in the payroll record of the employer and income recorded by the ATO in the 2017/2018 financial year;[32] and
·The Payer’s income was salary packaged under an Enterprise Agreement.[33]
[30] Court Book, p 176.
[31] Court Book, p174.
[32] Court Book, pp 114-115.
[33] Applicant’s affidavit filed 4 April 2022 annexing the Enterprise Agreement, beginning at p 37.
The First Respondent had provided D Authority case notes depicted in screenshots, which include information drawn from the ATO about the Payer’s income.[34]
[34] Court Book, pp 57-78 and 197-206.
In my view, the evidence before the Tribunal as described at [36]-[39] above required findings of fact to be made about whether the Payer had received any of the following in the relevant period:
·Reportable fringe benefits and, if so, their value;
·Net investment income and, if so, the value;
·Reportable superannuation payments, if so, their value; and
·If the taxable income figure of $94,811 sourced automatically from ATO was correctly derived from the tax return of the Payer or a Notice of Assessment.
The obligation to make findings was a fundamental part of the Tribunal’s task on a merit review.[35] Whether the necessary findings were made could only be apparent from the terms of the Tribunal’s written reasons or what can be reasonably inferred from those.[36]
[35] Crabbe, [49]-[50].
[36] Crabbe, from [54].
There were no tax return statements for the 2019 or 2020 financial years before the Tribunal analogous to those for the 2017 and 2018 financial years.[37] The tax return for the financial year ending 30 June 2020 or at least the statements could readily have been produced as they had been for prior years.
[37] Court Book, pp 116-129.
There were electronic screenshots from the First Respondent purporting to record the Payer’s taxable income automatically sourced from the ATO, as well as recording as “0” amounts for reportable superannuation, target foreign income, reportable fringe benefit and foreign gift amounts.[38] The same electronic records very coincidentally recorded a “0” rental profit/loss but the difference between the gross rental income and deductions recorded mathematically is not “0”.[39] It is important to note that these records are hearsay evidence.
[38] Court Book, p 61.
[39] Court Book, p 61.
At [23] of its reasons, the Tribunal stated that the Child Support Agency applied the provisions of s 43(1) of the Assessment Act. It is sufficiently clear from the Tribunal reasons at [21]-[22] that it accepted at face value the hearsay evidence provided by the First Respondent and did not check its accuracy in any way, other than relying on what the Payer apparently had stated at a prior hearing and not on oath.
The Tribunal’s reasoning at [24]-[26] distinctly conveys that the Senior Member thought the Applicant was pursuing a legally unmeritorious review in circumstances befitting a departure application under Part 6A of the Assessment Act. Respectfully, I disagree with the Tribunal’s attitude, because:
·Section 80 of the Registration Act at Item 11 provides by express words that a carer entitled to child support, as the Applicant was in this case, is entitled to object as to “the particulars of an administrative assessment”; and
·A payer’s “adjusted taxable income” for the purpose of the parent’s “child support income” worked out pursuant to s 41 of the Assessment Act is a particular of a child support assessment.
Accordingly, the Applicant was quite entitled to pursue her review of the objection decision and the fact that she could have also prosecuted a departure application pursuant to s 98B of the Assessment Act does not inform in any way the merit of a review taken about the objection decision. There is nothing in the terms of s 80 of the Registration Act which limit the entitlement to review of a particular about a person’s ATI in an administrative assessment to “unusual circumstances”.
The Tribunal’s reasons at [21]-[22] amply demonstrate an adoption of the figure for taxable income reported as automatically sourced from the ATO and nil for other income components or reliance on unsworn evidence without any explanation other than stating that the Applicant had merely asserted the Payer may have been in receipt of additional relevant income.
At [27]-[28], the Tribunal concluded there had not been an error on the part of the First Respondent in determining the ATI of the Payer at $94,811 and that the legislation had been correctly applied. I am bound to follow the authorities referred to by the First Respondent to the effect that the Tribunal was entitled to do so in the absence of other relevant and reliable evidence.[40]
[40] Written submissions filed 30 August 2023 at [14] and [47].
I accept that the Applicant carried an onus of proof on the merits review and note the First Respondent’s reliance on EOI20 v Child Support Registrar [2023] FCA 145.[41] However, there was relevant reliable evidence before the Tribunal that:
·The Payer still owned the rental investment property in the financial year ending 30 June 2020; and
·The Payer had declared receipt of trust distributions from C Company of $6 per fortnight but there was no evidence as to whether it was income included in his tax return or related to superannuation given the terms of the applicable Enterprise Agreement.
[41] In particular, [41]-[42] and [44]-[48].
There was no evidence at the hearing about whether the Payer had made reportable superannuation contributions or salary sacrificed to superannuation, but the Applicant stated she believed he had because he had done so in earlier years. She said she had provided evidence relating to the past contributions and the Enterprise Agreement, which envisaged salary sacrificing.
The Payer had denied salary sacrificing or making personal superannuation contributions in the relevant year before the earlier Tribunal hearing.[42] This was a statement not given on oath or on the re-hearing. But the statement was confusing referring to preserved superannuation which had no bearing on personal contributions or salary sacrificing.
[42] Court Book, p 211, lines 8-14.
It was not possible to discern if the Tribunal inferred that distribution from C Company had been included in the “taxable income” figure sourced automatically from the ATO and if so the basis of such inference.
This is not a case where there was no other relevant evidence besides that automatically sourced from the ATO about components of income referred to in s 43(1). There was an obligation to consider all relevant evidence, make findings of fact and reveal some reasoning as to why the electronic records produced by the First Respondent and sourced from the ATO were taken as correct and preferable.
The Tribunal thus in my view treated the Payer’s taxable income as reported by the ATO to the First Respondent as dispositive of the ATI. It may have been entitled to do so, if it found directly or by inference that:
·rental profit (if any) and the trust distribution were included in taxable income automatically reported; and
·that it preferred the statement made by the Payer to that of the Applicant about superannuation.
However, the Tribunal reasons do not show that such findings were made. The First Respondent’s written submissions invite the Court to accept that the Tribunal had made findings to this effect when it is not, in my view, reasonably apparent from the reasons.[43]
[43] Written submissions filed 30 August 2023 at [52] and [54].
Furthermore, relating to superannuation as the reasons at [50] and [51] above demonstrate, the Tribunal merely had competing assertions about whether the Payer made personal or salary sacrificed superannuation contributions. How or why, the Tribunal then accepted the Payer’s assertion is not apparent.
Although I accept the tenor of the First Respondent’s submissions and the authorities referred to regarding the Tribunal’s duty to provide reasons,[44] the nature and scope of the obligation is influenced by the nature of the evidence, subject and jurisdiction of the decision under review. This was addressed by Riethmuller J in PJ & Child Support Registrar (SSAT Appeal) [2007] FMCAfam 829 at [40]-[42].
[44] Written submissions filed 30 August 2023 at [6]-[11].
Relevant to ground 1 is the Applicant’s submission that she was constrained in what information she could obtain about the Payer’s income for the relevant financial year, and this in my view is highly relevant to the Tribunal discharging its function on review of child support decisions. As the purpose of the statutory framework of child support is to ensure that parents contribute to support of children according to the legislative formula, the First Respondent and the Tribunal in turn when it stands in its shoes on review, ought reasonably access further information if it is readily available at minimal cost and effort, particularly because the parent providing care is unlikely to be able to access it due to privacy legislation.
The High Court judgment in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 (“SZIAI”) is no doubt the leading authority in relation to a Tribunal’s obligation to make inquiry and obtain information. Although it concerns the Tribunal’s reviews under the Migration Act 1958 (Cth), it applies similarly to the review the Tribunal undertook of the objection decision. The following principles are instructive:
·The Tribunal has a discretion to obtain any information it considers relevant for the purpose of conducting its review;
·As applied to the Tribunal, “inquisitorial” does not carry the full meaning of “one whose official duty is to inquire, examine or investigate”, it merely delimits the nature of the Tribunal’s functions and that core function is to review the decision at first instance;
·Where no plausible and possible line of inquiry is suggested, it is not necessary to consider and decide whether the Tribunal was under an obligation to make further inquiry; and
·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, capable of amounting to error by constructive failure to exercise jurisdiction.
The authorities to which I have been referred by the First Respondent are instructive at a level of general principle.[45] However, the application of the principles and those referred to by the High Court in SZIAI are influenced in my view by the policy objective of ensuring that parents contribute to child support obligations according to the legislative formula in the context of the constraints discussed at [57].
[45] First Respondent’s List of Cases filed 14 June 2023.
It would have been a simple matter for the Tribunal to request that the Second Respondent obtain:
(a)A full copy of the tax return lodged by the Payer for the relevant financial year;
(b)A transaction statement from Super Fund 1 for the Payer; and
(c)A statement from the employer of all components of remuneration paid the Payer.
Had it done so, the Tribunal could have properly reviewed the source documents and information and identified if the automatically sourced figure of $94,811 was the correct sum for ATI allowing for the potentially relevant components in s 43(1)(a), (b), (d) and (f).
During the hearing before the Court, counsel for the First Respondent conceded that a constructive failure to review was part of the Applicant’s submissions relating to ground 1.[46]
[46] Transcript of hearing on 8 June 2023, p 30, lines 7-12.
It is also pertinent to observe that where the Tribunal on review simply accepts figures entered on the Second Respondent’s database, which figures at some point are dependent on accurate data entry, it would be impossible to discern without the source information or documents whether a factual or legal error as referred to at [31] had been made. In this case, none of the source information or documents were before the Tribunal.
Whilst the First Respondent contends that it was not for the Tribunal to assist the Applicant in making her case and that she carried the onus, that does not excuse the Tribunal from its obligation to undertake its statutory task as the merit reviewer. That task required critical engagement with all the material before it. However, in addition to the reasoning given above, the attitude of the Tribunal to the Applicant’s pursuit of a review of the objection decision, rather than a change of assessment, conveys otherwise.[47]
[47] See [30] onwards of these reasons.
For all the above reasons, I have concluded that the Tribunal constructively failed to discharge its function on the review and this constitutes an error of law encompassed by both grounds.
I appreciate that the conclusion I have come to may appear to be at odds with the approach and views of Deputy Chief Justice Mercuri in Walter v Fisher [2022] FedCFamC2G 136 and Justice McElwaine in EOI20 v Child Support Registrar [2023] FCA 145. However, it is to be appreciated that they were considering decisions relating to a change of assessment and the reasons of the Member and Court respectively were far more detailed, demonstrating clear engagement in the materials relied upon by the Applicant/Appellant. Further, the questions of law and grounds of relied on were not the same as in this matter, except in relation to whether the Tribunal should have sought further information.
In this regard, I have respectfully taken a different view because:
·Of the nature of the child support jurisdiction;
·The absence of sworn evidence and the indirect unsworn answers the Payer gave at the previous hearing, which the Tribunal in this matter appears to have simply adopted; and
·The absence of source documents and information about the relevant components, which were within the Tribunal’s power to obtain but problematic for the Applicant.
As the appeal is allowed, the Applicant’s review of the objection decision is remitted to the Tribunal constituted by a different member for redetermination.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 12 January 2024
6
5