Eoi20 v Child Support Registrar (No 2) - [2024] FedCFamC2G 14

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…

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.

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Details

Case: [2024] FedCFamC2G 14
Decision Date: 12 January 2024

CaseChat Overview and Summary

In the case of EOI20 v Child Support Registrar (No 2), the applicant sought a judicial review of a decision made by the Administrative Appeals Tribunal (AAT) regarding the determination of the payer's adjusted taxable income (ATI) for child support purposes. The dispute centred on whether the AAT correctly assessed the payer's ATI, which is a crucial component in calculating child support obligations. The Federal Circuit and Family Court of Australia (Division 2) was tasked with reviewing the AAT's decision to determine if any errors of law were present.

The primary legal issue before the court was whether the AAT had constructively failed to discharge its function on the review, amounting to an error of law. The applicant argued that the AAT did not properly consider all relevant evidence when determining the payer's ATI. Specifically, the applicant contended that the AAT failed to adequately address the evidence concerning the payer's rental property, trust distributions, and superannuation contributions. The court had to assess whether the AAT's decision to rely on the income figures automatically sourced from the Australian Taxation Office (ATO) was legally sound, particularly in light of the additional evidence presented by the applicant.

The court found that the AAT's reasons did not adequately explain why it preferred the ATO-sourced income figures over other evidence. The AAT's conclusion that the payer's ATI was correctly assessed at $94,811 without sufficiently addressing the additional evidence was considered a constructive failure to discharge its function. The court held that this amounted to an error of law, as the AAT was obliged to consider all relevant evidence and make findings of fact, as well as provide reasoning for its decisions. Consequently, the court set aside the AAT's decision and remitted the matter to the AAT for redetermination by a differently constituted tribunal.

The final orders of the court included setting aside the AAT's decision dated 14 January 2022 and remitting the matter back to the AAT for redetermination according to law by a differently constituted tribunal. This ruling underscores the importance of the AAT considering all relevant evidence and providing clear reasoning in its decisions, particularly in complex matters involving child support assessments.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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].

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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

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