Greene v Jordan
[2022] FedCFamC2G 812
Federal Circuit and Family Court of Australia
(DIVISION 2)
Greene v Jordan [2022] FedCFamC2G 812
File number: PEG 237 of 2021 Judgment of: JUDGE LADHAMS Date of judgment: 7 October 2022 Catchwords: ADMINISTRATIVE LAW – Child support – judicial review of decision of the Administrative Appeals Tribunal regarding departure determination – whether Tribunal failed to afford applicant procedural fairness – whether findings of fact illogical or irrational – whether Tribunal erred by failing to make inquiry – no error of law established – appeal dismissed. Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 33, 39, 40, 44, 44AAA, 46
Child Support (Assessment) Act 1989 (Cth) ss 98B, 98C, 117
Child Support (Registration and Collection) Act 1988 (Cth) ss 95H, 95J
Cases cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515
Child Support Registrar & Scullin (SSAT Appeal) (2015) 54 Fam LR 322; [2015] FamCAFC 200
Child Support Registrar v Ahern (2014) 286 FLR 198; [2014] FamCAFC 105
Emerson v Emerson [2018] FCCA 812
Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39
Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92
Humphries & Berry (SSAT Appeal) [2008] FMCAfam 409
McKee v Allianz Australia Insurance Ltd (2008) 71 NSWLR 609; [2008] NSWCA 163
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126
P v Child Support Registrar (2014) 225 FCR 378; [2014] FCAFC 98
Division: Division 2 General Federal Law Number of paragraphs: 106 Date of hearing: 14 April 2022 Place: Perth Counsel for the Applicant: Mr R Bannerman Solicitor for the Applicant: Bannerman Solicitors Counsel for the First Respondent: Mr R G Worth Solicitor for the First Respondent: Shaddicks Lawyers Counsel for the Second Respondent: Ms A Zinn Solicitor for the Second Respondent: Mills Oakley Lawyers ORDERS
PEG 237 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS GREENE
Applicant
AND: MR JORDAN
First Respondent
CHILD SUPPORT REGISTRAR
Second Respondent
order made by:
JUDGE LADHAMS
DATE OF ORDER:
7 October 2022
THE COURT ORDERS THAT:
1.The Notice of Appeal filed by the applicant on 10 November 2021 and amended on 14 February 2022 is dismissed.
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 the pseudonym Greene v Jordan is approved pursuant to s 110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
The matter before the Court is an appeal brought pursuant to s 44AAA of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) from a decision made by the Social Services and Child Support Division of the Administrative Appeals Tribunal (Tribunal). On 6 October 2021 the Tribunal set aside an earlier decision made by a delegate of the Child Support Registrar (Registrar) and substituted a decision adjusting the applicant’s taxable income to $100,000 per annum for the period 20 August 2020 to 9 November 2025.
An appeal under s 44AAA of the AAT Act is an appeal on a question of law. The appeal raises four questions of law and six grounds. The issues raised by the appeal fall broadly into two main categories:
(a)whether the Tribunal denied the applicant procedural fairness; and
(b)whether the Tribunal made an error of law in relation to its fact finding, including whether it made findings that were illogical or irrational, or whether it failed to inquire before making a finding of fact.
For reasons explained below, I find that there is no error of law in the Tribunal decision and I dismiss the appeal.
Background
The applicant and the first respondent are the separated parents of two children who are the subject of administrative assessments of child support. The applicant is the mother of the children and the first respondent is the father of the children. The children have been the subject of a registered child support case since 7 July 2010 and the first respondent is the parent liable to pay child support.
On 9 August 2020 the first respondent applied to Services Australia (Agency) for a departure determination, otherwise referred to as a change of assessment application. The application was made on the basis that the administrative assessment of child support was unfair because of the applicant’s income, property and financial resources.
On 6 October 2020 a delegate of the Registrar made a decision that for the period 1 July 2020 to 31 October 2021 the applicant’s adjusted taxable income was set at $52,000 (original decision).
The first respondent objected to the original decision. On 29 January 2021 an authorised objections officer, who is another delegate of the Registrar, set aside the original decision, finding that no ground of departure had been established, and accordingly refused to make a departure determination (objection decision).
On 26 February 2021 the first respondent lodged an application to the Tribunal seeking review of the objection decision.
The Tribunal convened a hearing by telephone on 20 September 2021. The first respondent participated in that hearing. The applicant initially joined the hearing, but terminated her participation in the hearing shortly after it commenced.
On 6 October 2021 the Tribunal set aside the objection decision and, in substitution, decided that the applicant’s adjusted taxable income was varied to $100,000 per annum for the period 20 August 2020 to 9 November 2025.
Tribunal Decision
The Tribunal identified that the issues for its consideration were:
(a)whether a ground was established to depart from the administrative assessment of child support; and
(b)if so, whether it was just and equitable to make a particular departure determination; and
(c)if so, whether it was otherwise proper to make a particular departure determination.
The Tribunal found that grounds for departure existed under:
(a)s 117(2)(c)(ia) of the Child Support (Assessment) Act 1989 (Cth) (Assessment Act), namely, that in the special circumstances of the case, application of the administrative assessment of child support would result in an unjust and inequitable determination of child support to be provided by the liable parent in respect of the child because of the income, property or financial resources of either parent; and
(b)s 117(2)(c)(ib) of the Assessment Act, namely, that in the special circumstances of the case, application in relation to the child of the provisions of the Assessment Act relating to the administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child because of the earning capacity of either parent.
The Tribunal found that it was the applicant’s financial resources and earning capacity that gave rise to the grounds for departure.
The Tribunal found that the applicant did not earn income from self-employment at the time that the first respondent lodged the change of assessment application. The Tribunal considered it appropriate, in the special circumstances of the case, to have regard to the income, earning capacity, property and financial resources of the applicant’s husband’s family business. The Tribunal took into account that in 2016 the applicant received proceeds from the sale of three rental properties, which had previously produced rental income. The Tribunal was satisfied that the applicant had assisted her husband’s family business by meeting expenses that would otherwise be her husband’s expenses or the business’ expenses, and that she had benefited from her association with her husband’s family business, for example, by the provision of a vehicle and travel and that these benefits should be taken into account for child support purposes.
The Tribunal also found that the applicant’s self-managed superannuation account had increased by $600,000 in the period from 2013 to 2021, suggesting that the applicant was salary sacrificing or making lump sum contributions, and that this reflected income from sources other than the sale of the rental properties. The Tribunal concluded that the applicant’s decision to increase her superannuation to the level it had reached reflected a foregone capacity to derive accessible income from the capital as set out in s 117(7A)(a) of the Assessment Act. The Tribunal also found that, in the absence of other evidence, $20,000 withdrawn by the applicant from her superannuation account was a financial resource that was able to be considered for child support purposes.
In finding that the applicant’s earning capacity was a ground for departure, the Tribunal took into account the factors in s 117(7B) of the Assessment Act. The Tribunal was satisfied that the applicant’s circumstances satisfied s 117(7B)(a) of the Assessment Act. In circumstances where the applicant had worked until 2019, the Tribunal was satisfied that she did not cease work because of caring responsibilities. The Tribunal considered the evidence before it in relation to the applicant’s state of health and found that the medical information provided by the applicant was insufficient for the Tribunal to conclude that her health justified her decision to cease employment. The Tribunal was also satisfied that the applicant is an active member of her local community. In the absence of any opportunity to discuss the matters with the applicant, the Tribunal was not satisfied that the applicant had demonstrated that it was not a major purpose of her decision not to work to affect the administrative assessment of child support.
Having found that grounds for departure existed, the Tribunal then considered whether it would be just and equitable to depart from the administrative assessment of child support, taking into account the matters in s 117(4) of the Assessment Act. After addressing the s 117(4) factors, the Tribunal used a child support calculator and decided it was fair to set the applicant’s adjusted taxable income at $100,000. The Tribunal considered that this amount should apply from the date the first respondent lodged his change of assessment application, and should not be backdated. To give the parties certainty moving forward, the Tribunal set the applicant’s adjusted taxable income at $100,000 until 9 November 2025.
The Tribunal was satisfied that its decision would not have an impact on the taxpayer as neither party receives Centrelink payments, and was satisfied that its decision was otherwise proper in the circumstances of the case.
The Tribunal set aside the decision under review and substituted a decision that the applicant’s adjusted taxable income is varied to $100,000 per annum for the period 20 August 2020 and 9 November 2025.
Proceedings before the court
The applicant commenced proceedings in this Court by way of a notice of appeal filed on 10 November 2021 and supported by an affidavit filed on the same day. An amended notice of appeal was filed on 14 February 2022.
The amended notice of appeal raises the following four questions of law and six grounds of appeal:
Question of law
1. Whether the Tribunal failed to accord the Appellant procedural fairness.
3.Whether there was sufficient evidence to support a finding that the Appellant was salary sacrificing or making lump sum contributions to her self-managed superannuation account.
4.Whether the evidence before the Tribunal and the findings of fact made by the Tribunal, were capable at law, of supporting the finding that there were “special circumstances” to have regard to the Appellant’s husband’s income, earning capacity, property and financial resources as required by section 117(7A)(b)(i) of the Child Support (Assessment) Act 1989 (Cth) (“the Act”).
5.Whether there was sufficient evidence before the Tribunal to support its finding that the Appellant’s medical information was insufficient to justify her decision to cease employment.
Grounds of appeal
1.The Tribunal erred at law in that it failed to accord procedural fairness to the Appellant in failing to adjourn the hearing to a further date in circumstances where the Appellant became unable to adequately participate in the hearing.
2.The Tribunal erred at law in that it failed to accord procedural fairness to the Appellant by considering the Appellant’s earning capacity in circumstances where this was not a reason for review listed in the Respondent’s reasons and where no appropriate notice was given to the Appellant
7.The Tribunal erred at law in failing to accord procedural fairness to the Appellant by conducting the hearing in circumstances where it could not be satisfied that the Appellant had received documents referred to as A1 to A80 and B1 to B37.
8.The Tribunal erred at law in determining that the Appellant’s was salary sacrificing or making lump sum contributions to her self-managed superannuation account as that determination was not open on the evidence and was unreasonable and against logic.
9.The Tribunal erred at law in failing to provide any or sufficient reasons in determining that there were “special circumstances” to have regard to the Wife’s husband’s income, earning capacity and financial resources.
10.The Tribunal erred at law in determining that the Appellant’s medical issues were insufficient to conclude that health did not justify her decision to cease employment without making proper enquiry.
The evidence before the Court comprises:
(a)the documents provided to the Court pursuant to s 46 of the AAT Act;
(b)an affidavit of the applicant filed on 14 February 2022, which annexes a copy of a transcript of the hearing held by the Tribunal on 20 September 2021;
(c)an affidavit of the applicant filed on 7 April 2022, which annexes various correspondence and directions made by the Tribunal; and
(d)an affidavit of the first respondent filed on 4 April 2022, which annexes various correspondence and directions made by the Tribunal.
The applicant also filed an affidavit on 10 November 2021, which I treated as read subject to the resolution of objections made by the respondents, and I indicated to the parties at the hearing that I would address the admissibility of the affidavit of 10 November 2021 in my reasons for judgment.
Large parts of that affidavit provide comment on the evidence before the Tribunal or seek to provide further evidence that was not before the Tribunal. As the appeal to this Court is an appeal on a question of law, the circumstances in which new evidence will be admissible in this Court are limited. In the circumstances of this case, the only paragraphs that I consider to be admissible are paragraph 1, which simply sets out the purpose of swearing the affidavit and paragraphs 61 and 62, which address matters that might be seen as relevant to the applicant’s procedural fairness grounds. I treat paragraphs 61 and 62 as evidence of the applicant’s subjective feelings in relation to her ability to participate in the Tribunal hearing, rather than as the objective truth of the matters deposed to in those paragraphs. However, for reasons explained below, I give those paragraphs little weight.
The balance of the affidavit is inadmissible for the following broad reasons:
(a)The applicant’s beliefs as to how the Tribunal review should have been conducted and her opinions of and responses to the first respondent’s arguments before the Tribunal are not relevant to the errors of law asserted and the grounds of review.
(b)The applicant’s comments and observations about evidence that was before the Tribunal are irrelevant to the grounds of review, or are otherwise submissions. The documentary evidence that was before the Tribunal is contained in the s 46 documents and speaks for itself.
(c)The evidence that the applicant purports to adduce in response to the Tribunal’s findings, or in support of what findings she believes should have been made, goes to the merits of the Tribunal decision, which is beyond the jurisdiction of the Court. It is not relevant to the grounds of review.
Procedural Fairness
The first question of law raised by the applicant is whether the Tribunal denied her procedural fairness. There is no dispute between the parties that a question of law sufficient to invoke the jurisdiction of the Court has been raised in relation to the alleged denial of procedural fairness.
Grounds 1, 2 and 7 allege that the Tribunal denied the applicant procedural fairness in the following ways:
(a)by failing to adjourn the hearing in circumstances where the applicant became unable to adequately participate in the hearing (ground 1);
(b)by considering the applicant’s earning capacity in circumstances where this factor was not a listed reason for review and where the applicant was not given appropriate notice that this would be an issue (ground 2); and
(c)by conducting the hearing in circumstances where it could not be satisfied that the applicant had received documents referred to as A1 to A80 and B1 to B37 (ground 7).
I consider each of the procedural fairness grounds in turn.
Ground 1
The hearing before the Tribunal took place by telephone.
The transcript of the hearing before the Tribunal shows that the Tribunal took steps at the commencement of the hearing to ascertain whether the parties had provided all documents that they had been directed to provide. The applicant appears to have become upset during that process, and ultimately withdrew from the hearing. In response to the member questioning the applicant in relation to certain tax returns and wondering if what the applicant had sent to the Tribunal was what the Tribunal had asked for, the applicant said:
Well I don’t know, if they didn’t – like what I think you’re asking for and what I sent, is what I thought you were asking for. So if nobody told me that it was the wrong thing, I didn’t know and I didn’t do it on purpose.
You know, I want this over and done with, it’s not my decision to do all this and then drag it all up, it’s [the first respondent’s] decision and I – you know, I am doing the best I can and I feel really attacked and upset that you’re having a go at me and I am trying to do the best that I can.
It’s not my fault he doesn’t want to pay child support, I have to go through everything, every time this happens, and it’s not the first time he’s done it. And I am being attacked. I am really sorry; I don’t know what I don’t know. This is terrible. I think you can just go.
It appears that the applicant then left the hearing. Once the member realised that the applicant was no longer connected to the hearing, the hearing was temporarily adjourned so that the Tribunal officers could ‘reconnect the hearing’. When the hearing resumed, the member advised the first respondent that the applicant ‘doesn’t want to proceed with the hearing’ and indicated that he intended to ‘continue the hearing in her absence’.
The Tribunal also addressed the applicant’s withdrawal from the hearing at [21] of its reasons, where it said:
The mother became distressed during this conversation and said she felt she was the subject of an aggressive attack by the tribunal member. She hung up. After several minutes, the tribunal rang the mother. The mother reiterated that she felt the process was unfair. She hung up the phone and refused to participate in the hearing.
The applicant submitted that the Tribunal’s decision to proceed with the hearing, rather than to adjourn the hearing, amounted to a denial of procedural fairness for the following reasons:
(a)The Tribunal had a positive obligation to ensure that both parties received a fair hearing. The applicant cited s 39(1) of the AAT Act, which requires that ‘the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents’. The applicant also cited Child Support Registrar & Scullin (SSAT Appeal) (2015) 54 Fam LR 322; [2015] FamCAFC 200 at [35][1] for the proposition that ‘procedural fairness would require any and all necessary steps to ensure a fair hearing’.[2]
(b)The applicant became highly distressed and was unable to adequately participate in the Tribunal hearing. The Tribunal acknowledged that the applicant was ‘very upset about the matter’. It was unclear what steps the Tribunal took in order to ensure that the applicant was given a reasonable opportunity to present her case.
(c)Any conversation which took place between the Tribunal and the applicant after the applicant withdrew from the hearing was not recorded, and it is therefore unknown what options were presented to the applicant, or what course of action the applicant proposed. The appeal must proceed on the basis that no options were suggested or provided to the applicant to continue to present her case and express her position in relation to matters which were subsequently put forward to the first respondent or ultimately the subject of the Tribunal’s findings.
(d)The Tribunal made a decision based on comments made by the first respondent that the applicant did not have an opportunity to respond to. The Tribunal should have ensured that the applicant was made aware of those comments and given an opportunity to respond.
(e)The Tribunal should have adjourned the hearing, given that the applicant was ‘very upset about the matter’.
[1] The Court quoted Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39 at [41], which cited McKee v Allianz Australia Insurance Ltd (2008) 71 NSWLR 609; [2008] NSWCA 163 at [8].
[2] The applicant’s written submissions omit the word ‘necessary’ from this reference. The word ‘necessary’ is an important qualification on the obligation of the Tribunal, and I accept the submissions made by the first respondent to this effect.
I do not accept that the denial of procedural fairness asserted by ground 1 is established.
There is a necessary distinction to be drawn between an applicant who is unable to participate in the hearing and an applicant who is unwilling to participate in the hearing. In the present case, I do not accept that the applicant was unable to participate in the hearing. In her affidavit of 10 November 2021, the applicant said:
As a result of the way in which the tribunal was conducted, I became distressed and did not feel capable of continuing with the tribunal.
While I am prepared to have regard to this evidence, I give it little weight for the purposes of determining whether the applicant was unable to participate in the hearing, and I note that there is no medical evidence before the Court to suggest that the applicant was unable to participate in the hearing: contrast, for example, Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126 at [12]-[15], [40]-[41]. Nor is there anything in the description of the Tribunal’s telephone conversation with the applicant, set out in its reasons for decision and in the transcript of the hearing after the hearing resumed, to suggest that the applicant was unable to proceed with the hearing. While the applicant may well have felt emotional or stressed at having to represent herself at the hearing, this does not amount to an inability to participate. Rather, I find that the applicant chose not to further participate in the hearing after she became upset.
While the Tribunal was required to afford the applicant an opportunity to be heard, it was not required to ensure that she took full advantage of that opportunity. As Kirby J said in Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 at [38] (footnote omitted):
Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principal require.
I am satisfied in the present case that the applicant was afforded an opportunity to be heard. In particular, it is clear that the Tribunal invited the applicant to attend a hearing by telephone on 20 September 2021, at which she would have had an opportunity to make submissions. The Tribunal also gave the applicant an opportunity to present evidence and give to the Tribunal written submissions prior to the hearing. After the applicant left the hearing she provided further documents to the Tribunal and the Tribunal had regard to these documents notwithstanding that the applicant had failed to participate in the hearing.
I have reviewed the transcript of the Tribunal hearing and I do not identify anything in the manner in which the hearing was conducted that gives rise to a denial of procedural fairness to the applicant.
After the applicant left the hearing, the Tribunal stood the matter down and re-established telephone contact with the applicant. The applicant again hung up the phone and refused to participate in the hearing: see Tribunal reasons at [21].
It was open to the Tribunal to proceed with the hearing in the absence of the applicant in these circumstances. The course taken by the Tribunal was an exercise of its express discretionary power in s 40(1)(b) of the AAT Act to proceed in the absence of a party who has had reasonable notice of the preceding.
As I am satisfied that the Tribunal had afforded the applicant procedural fairness, the outcome of this matter does not turn on what options, if any, the Tribunal put to the applicant in the course of the telephone conversation it had with her after she withdrew from the hearing. However, if this was a live issue, I would not accept the applicant’s submission that the appeal necessarily has to proceed on the basis that no options were put to her. The only party to this proceeding who was a participant in that telephone conversation is the applicant. It was within the applicant’s power to put on evidence of what was and was not said in the telephone conversation with the Tribunal member.
There is a further aspect of this ground that is set out in the applicant’s written submissions, namely, that the decision was made based on comments of the first respondent to which the applicant did not have the opportunity to respond, and accordingly the Tribunal should have adjourned the hearing to give her an opportunity to respond. This again is an inaccurate reflection of what happened at the hearing. By inviting the applicant to attend a hearing, the Tribunal afforded the applicant an opportunity to make submissions at the hearing. This would necessarily have included hearing the evidence of the first respondent and providing any response to that evidence. However, the applicant did not avail herself of that opportunity. In those circumstances, there was no obligation then imposed on the Tribunal to provide to the applicant a transcript or summary of the first respondent’s evidence given and submissions made at the hearing, and invite her to comment on that. The applicant had already had the opportunity to comment and did not avail herself of that opportunity when she chose not to participate in the Tribunal hearing.
Ground 1 is not established.
Ground 2
The Tribunal had regard to the applicant’s earning capacity at [73] to [82] of its reasons and found that the applicant’s earning capacity was a ground to depart from the administrative assessment of child support. It also referred back to these findings in addressing the factors set out in s 117(4) of the Assessment Act for the purpose of considering whether it would be just and equitable to depart from the administrative assessment of child support: see [98] of the Tribunal’s reasons.
The applicant submitted that she was not advised that her earning capacity was an issue that the Tribunal would consider and she was unable to address this issue herself at the hearing because she withdrew. The applicant submitted that the Tribunal should have adjourned the hearing to allow the applicant to respond to the issue. The applicant acknowledged that in the Direction made on 3 June 2021, the Tribunal directed her to provide ‘any medical report or other documentation evidencing the commencement of the medical condition impacting upon her capacity to earn income and the prognosis for that condition’ and that she provided medical documentation in accordance with that direction. However, the applicant submitted that she was unaware that her earning capacity was an issue to be considered by the Tribunal, and therefore was unable to respond appropriately.
The first respondent and the Registrar have both submitted that this ground is not established, albeit for different reasons. The first respondent submitted that it was clear from his application to the Tribunal that one of his complaints was that the delegate who made the objection decision did not have a complete and accurate picture of the applicant’s financial circumstances, and that the applicant’s earning capacity is a matter that falls under the umbrella of her financial circumstances. The applicant was aware that her earning capacity was in issue because of the Tribunal Direction made on 3 June 2021. The Tribunal was also required to have regard to the applicant’s earning capacity pursuant to s 117(7A) of the Assessment Act. The first respondent submitted that to the extent that the applicant complains she did not have an opportunity to respond to issues relating to her earning capacity, she was provided with this opportunity at the hearing but chose not to participate.
The Registrar submitted that the applicant’s earning capacity was a mandatory relevant consideration whether or not consideration was given to it as a ground of departure under s 117(2) of the Assessment Act. The Tribunal was required to have regard to the applicant’s earning capacity under s 117(4)(da) of the Assessment Act in determining whether the proposed departure determination was just and equitable. Accordingly, the issue was apparent from the terms of the statutory power and the applicant was not denied procedural fairness. The Registrar further submitted that the Tribunal was not bound by the terms of the application made by the parties, and it was clear what case the applicant was expected to meet before the Tribunal and she was aware, or ought to have been aware, of the issues arising in the case given the legislative basis of the decision and her previous engagement in the delegate and objection decisions.
I find that the Tribunal did not deny the applicant procedural fairness in the manner alleged by ground 2.
The procedural fairness obligation to put a party on notice of the issues in the proceeding was explained by the High Court in Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1, where the Court said at [9] (footnote omitted):
… Procedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power. The decision-maker must also advise of any adverse conclusion which would not obviously be open on the known material. However, a decision-maker is not otherwise required to expose his or her thought processes or provisional views for comment before making the decision.
In the present case, the applicant was sufficiently on notice that her earning capacity may be an issue based on a combination of the terms of the relevant legislation and the direction made by the Tribunal. The applicant herself also raised matters relevant to her earning capacity in her objection to the original decision.
The terms of the legislation made clear that the earning capacity of the parties was a matter that was or may be in issue.
In the present case, the application for a departure determination made by the first respondent was an application under s 98B of the Assessment Act. The matters in relation to which the Registrar must be satisfied before making a departure determination are set out in s 98C of the Assessment Act. That section provides:
(1) Subject to this Part, if:
(a) an application is made to the Registrar under section 98B; and
(b) the Registrar is satisfied:
(i)that one, or more than one, of the grounds for departure referred to in subsection (2) exists; and
(ii) that it would be:
(A)just and equitable as regards the child, the liable parent, and the carer entitled to child support; and
(B) otherwise proper;
to make a particular determination under this Part;
the Registrar may make the determination.
(2) For the purposes of subparagraph (1)(b)(i):
(a)the grounds for departure from the provisions of this Act relating to administrative assessment of child support in relation to the child are the same as the grounds for departure set out in subsection 117(2); and
(b)subparagraph 117(2)(b)(ib) has effect subject to subsections 117(3A) to (3C).
(3)Subsections 117(4) to (9) (inclusive) apply to the Registrar in the exercise of his or her powers under this Division as if:
(a)any reference in those subsections to the court were a reference to the Registrar; and
(b)any reference to an order were a reference to a determination.
As can be seen, the grounds for departure are those set out in s 117(2) of the Assessment Act. The grounds that the Tribunal found were met in the present case were those set out in s 117(2)(c)(ia) and (ib), namely:
(c)that, in the special circumstances of the case, application in relation to the child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child:
…
(ia)because of the income, property and financial resources of either parent; or
(ib) because of the earning capacity of either parent; or…
There is no dispute that the only reason for departure identified in the first respondent’s application for a departure determination was the income, property and financial resources of either parent. However, in considering whether a ground for departure existed, the Tribunal was not limited to considering the same grounds as those that were considered by the Registrar’s delegates or that those were set out in the application for a departure determination: see Child Support Registrar v Ahern (2014) 286 FLR 198; [2014] FamCAFC 105 at [66]-[75].
Further, if the Tribunal was satisfied that one or more grounds for departure existed, it was then required to consider the matters in s 117(4) of the Assessment Act in determining whether it would be just and equitable to make a departure determination. One of the matters set out in s 117(4) is that in s 117(4)(da), namely, ‘the earning capacity of each parent who is a party to the proceeding’.
The terms of the legislation clearly set out that the earning capacity of the applicant was an issue before the Tribunal. It had the potential to be a ground for departure, but even if it was not considered as a ground of departure, it was still a relevant issue for the Tribunal to consider under s 117(4)(da) if the Tribunal found that any ground of departure was established. For these reasons, I am satisfied that the terms of the legislation made clear that the applicant’s earning capacity was a relevant consideration.
I have also had regard to the Direction issued by the Tribunal on 3 June 2021. This Direction required the applicant to provide, amongst other things, ‘any medical report or other documentation evidencing the commencement of the medical condition impacting upon her capacity to earn income and the prognosis for that condition’. This Direction should also have served to put the applicant on notice that her earning capacity was in issue.
The applicant partially complied with that Direction, providing a letter from her doctor dated 14 June 2021 which simply said:
I certify that [the applicant] is currently not seeking employment as she is undergoing and receiving treatment for a chronic medical condition that was diagnosed since 2009.
I also note that in her objection to the original decision, the applicant indicated that she was not engaged in paid work and she attached a letter from her doctor dated 19 January 2021. The full text of the letter is not visible in the form in which it is provided in the s 46 documents. However, I infer from the context that the letter, which contains only two lines, indicates the applicant is not currently seeking employment and that she is being treated for a chronic medical condition. The applicant also raised matters relevant to her earning capacity in her statement of financial affairs provided to the Tribunal, where she indicated that she was not currently seeking employment due to ongoing treatment and management of a chronic health condition.
It is clear from the terms of the legislation, the Tribunal’s direction and the information provided by the applicant herself that she was on notice that her earning capacity was an issue relevant to the Tribunal’s decision.
To the extent that the applicant’s decision not to participate at the hearing is relevant to her claims in relation to ground 2, I repeat the findings made in relation to ground 1 above.
Ground 2 is not established.
Ground 7
The transcript of the Tribunal hearing shows that, at the commencement of the hearing, the Tribunal discussed with the parties the documents it had before it. The applicant confirmed that she had received the documents provided to the Tribunal by the Agency. When asked if she had received documents provided by the first respondent, marked A1 to A80, the applicant replied ‘[y]es, no, I don’t think I do, it doesn’t matter, go ahead’. She confirmed that she had received some documents about the first respondent’s tax records which the Tribunal sent by email on the day of the hearing, having previously withheld those documents due to the applicant’s late compliance with the Tribunal’s directions. She also indicated she had not received a copy of the documents she provided to the Tribunal, which the Tribunal had marked with its own pagination. When the Tribunal indicated the documents had been sent to the applicant’s PO Box and email, the applicant indicated that she had not seen any email come in, and that she did not check her PO Box often. The Tribunal then proceeded to discuss the applicant’s documents with her. The applicant withdrew from the hearing before that discussion was complete.
In its reasons, the Tribunal said at [14]-[15]:
14. The mother said she had not received the paginated submissions…
15.The tribunal reviewed records kept by its officers. The tribunal satisfied itself in the hearing by referring to its electronic record that the mother had been sent paginated submissions by post and email on 7 September 2021 and 8 September 2021. The mother searched her email and located the tribunal’s correspondence.
The applicant submitted that the Tribunal had an obligation pursuant to s 39(1) of the AAT Act to ensure that the parties have the opportunity to inspect any documents to which the Tribunal proposed to have regard in reaching its decision and to make submissions in relation to the documents. The applicant further submitted that the Tribunal could not be satisfied that the applicant had received all relevant material and, in those circumstances, should have adjourned the hearing. The applicant submitted that she would not have anticipated that the documents would have been sent to her PO Box, because the Tribunal sent her a letter advising that it was able to send correspondence by email.
The Tribunal was required to ensure the applicant was given a ‘reasonable opportunity’ to inspect any documents to which the Tribunal proposed to have regard in reaching its decision and to make submissions in relation to those documents. As with ground 1, the obligation on the Tribunal was to ensure that the applicant was given a reasonable opportunity, and not to ensure that she availed herself of that opportunity.
I am satisfied, taking into account the circumstances as a whole, that the Tribunal here has afforded the applicant a reasonable opportunity to inspect the documents. As the respondents submitted, the Tribunal did this by sending the documents to the applicant by both post and email. I also note that the Tribunal satisfied itself in the course of the hearing that there was a record made by officers of the Tribunal to confirm that the documents had been sent: see [15] of the Tribunal’s reasons. While this is not necessarily reflected in the transcript of the Tribunal hearing, there is no reason to doubt the Tribunal’s statement in the first sentence of [15].
There may be some question as to whether the applicant acknowledged that she received all or only some of the documents by email. However, nothing turns on that in circumstances where the Tribunal also sent a copy of the documents to the applicant by post. The Tribunal provided the applicant with the opportunity to inspect the documents by sending them to her. It did not have any further obligation to ensure that she availed herself of that opportunity by collecting the documents and reading them.
I acknowledge the applicant’s submission that she did not expect to receive correspondence at her PO Box because the Tribunal sent her a letter on 4 June 2021 indicating that it could send her documents by email if she consented to this. However, this does not affect my conclusion in relation to whether the Tribunal afforded the applicant procedural fairness. Nothing in the Tribunal’s letter indicates that documents will be sent only by email or that all documents will be sent by email.
I accept the respondents’ submission that the manner in which the hearing progressed is also relevant. The applicant withdrew from the hearing before the Tribunal finished addressing the documents and apparently indicated to the Tribunal that she did not wish to participate. I accept the respondents’ submission that in circumstances where the Tribunal provided the documents to the applicant by email and post, and the applicant subsequently withdrew from the hearing, the Tribunal did not deny her procedural fairness.
I also accept an additional submission made by the Registrar that any complaint by the applicant in relation to the documents referred to as B1 to B37 can be dismissed as these were her own documents that she provided to the Tribunal. Even if she had not received a numbered bundle, she was plainly aware of the content of the documents and discussed this at the hearing.
Ground 7 is not established.
Challenges to Tribunal’s fact finding
The other three questions of law raised by the applicant all relate to whether the Tribunal had before it sufficient evidence to support its findings that:
(a)the applicant was salary sacrificing or making lump sum contributions to her self-managed superannuation account;
(b)there were ‘special circumstances’ to have regard to the applicant’s husband’s income, earning capacity, property and financial resources as required by s 117(7A)(b)(i) of the Assessment Act; and
(c)the applicant’s medical information was insufficient to justify her decision to cease employment.
An issue was raised by the respondents as to whether the questions of law raised by the applicant that relate to the Tribunal’s fact-finding are in fact questions of law.
An appeal to this Court under s 44AAA of the AAT Act is an appeal on a ‘question of law’. The Court’s jurisdiction is engaged only where a question of law is raised, and the questions of law should be ‘properly and precisely framed’: see P v Child Support Registrar (2014) 225 FCR 378; [2014] FCAFC 98 at [27]-[28].
In considering whether the applicant’s purported questions of law numbered 3, 4 and 5 are in fact questions of law, I have been guided by the principles in Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 (Haritos). In Haritos, the Full Court at [62] summarised 10 principles in relation to appeals under s 44 of the AAT Act, which also relates to appeals on ‘questions of law’. The first eight of those principles are relevant in the present matter, and read:
(1)The subject-matter of the court’s jurisdiction under s 44 of the AAT Act is confined to a question or questions of law. The ambit of the appeal is confined to a question or questions of law.
(2)The statement of the question of law with sufficient precision is a matter of great importance to the efficient and effective hearing and determination of appeals from the Tribunal.
(3)The court has jurisdiction to decide whether or not an appeal from the Tribunal is on a question of law. It also has power to grant a party leave to amend a notice of appeal from the Tribunal under s 44.
(4)Any requirements of drafting precision concerning the form of the question of law do not go to the existence of the jurisdiction conferred on the court by s 44(3) to hear and determine appeals instituted in the court in accordance with s 44(1), but to the exercise of that jurisdiction.
(5)In certain circumstances it may be preferable, as a matter of practice and procedure, to determine whether or not the appeal is on a question of law as part of the hearing of the appeal.
(6)Whether or not the appeal is on a question of law is to be approached as a matter of substance rather than form.
(7)A question of law within s 44 is not confined to jurisdictional error but extends to a non-jurisdictional question of law.
(8)The expression “may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal” in s 44 should not be read as if the words “pure” or “only” qualified “question of law”. Not all so-called “mixed questions of fact and law” stand outside an appeal on a question of law….
The Full Court in Haritos agreed with a statement of Ryan J in Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524 that merely to assert the Tribunal erred in law in making a particular factual finding does not amount to stating a question of law. Whether a question of law has been raised is not determined solely by looking at whether words such as ‘whether the Tribunal erred in law’ or whether a finding was ‘open as a matter of law’: Haritos at [92]. Rather, the Full Court explained at [94] that:
In our opinion, the issue must be approached as one of substance. In cases of doubt, the court should consider the notice of appeal, the alleged question or questions of law, the grounds raised, the statutory context, and the Tribunal’s reasons for its decision, and having considered all those matters, satisfy itself that there is in fact a question of law.
In the present case, although the questions of law might have been prepared with greater precision, when one looks at the whole of the relevant matters, it appears that the applicant is purporting to assert that the Tribunal’s findings of fact were illogical or irrational. I am prepared to accept that the notice of appeal raises questions of law. I do, however, have some concerns as to whether some the grounds raised by the applicant properly relate to the questions of law. This is discussed further below.
It appears that the applicant intends that grounds 8, 9 and 10 relate to the questions of law regarding the Tribunal’s fact-finding. By those grounds, the applicant alleges that the Tribunal:
(a)made a decision that was illogical, irrational or unreasonable in finding that the applicant was salary sacrificing or making lump sum contributions to her self-managed superannuation account (ground 8);
(a)failed to provide any or sufficient reasons for its finding that there were special circumstances to have regard to the applicant’s husbands income, earning capacity and financial resources (ground 9); and
(b)failed to make proper inquiry before finding that the applicant’s medical issues were insufficient to conclude that health did not justify her decision to cease employment (ground 10).
These grounds are addressed in turn below.
Ground 8
Ground 8 relates to the Tribunal’s findings that the applicant was salary sacrificing or making lump sum contributions to her superannuation.
The relevant consideration of this issue by the Tribunal is set out at [64]-[68] of its reasons where it said:
64.According to the father’s submission, at the time of settlement the mother received $870,617 in superannuation. The mother’s Statement of Financial Circumstances dated 17 March 2021, set out she held $1,472,307 in superannuation. In the Agency’s decision dated 15 January 2016, the officer noted:
[The applicant] has a significant superannuation fund balance of $950,000. Whilst [the applicant] is unable to access these funds until her retirement; given her age and historical taxable incomes, it indicates that she has voluntarily contributed additional significant funds to her superannuation account.
65.That the mother’s superannuation increased in value by about $600,000 in the period 2013 to 2021, implies in the tribunal’s opinion that the motherwas salary sacrificing or making lump sum contributions into her self-managed superannuation account.
66.Noting the mother’s comment at paragraph 54 of these Reasons for Decision, that the proceeds from the sale of the rental properties and her vehicle (i.e. the vehicle that was part of the property settlement) had been used to reduce household debt, meet living expenses and there in September 2020, was about $90,000 remaining, the tribunal concluded the $600,000 paid into the mother’s self-managed superannuation account reflected income from sources other than the sales of the rental properties.
67.The tribunal concluded the mother’s decision to increase her superannuation to the level it had reached reflected a foregone capacity to derive accessible income from the capital, as it is set out in paragraph 117(7A)(a) of the Act.
68.This finding reflects the tribunal’s decision to draw an adverse inference and to make a finding favourable to the father (see paragraph 27 of these Reasons for Decision).
The applicant submitted that she was unaware that the increase in her superannuation was going to be inferred as salary sacrificing, and that no such notice was given to the applicant to enable her to produce documents to respond. The applicant did not contemplate in advance of the hearing that it was going to be suggested that a significant income of hers had been used to increase her superannuation and therefore did not produce her superannuation reports for the previous few years. She sought to provide those reports to the Court, but I have found that evidence to be inadmissible. While I acknowledge the applicant’s submissions, the ground alleges an error of law based on unreasonableness (or illogicality or irrationality), not a denial of procedural fairness. I take the submissions summarised in this paragraph into account only for the purpose of assessing the reasonableness or logicality of the Tribunal’s factual finding.
The applicant said at [49]-[50] of her written submissions:
49.The Tribunal came to the finding regarding salary sacrifice by way of an inference. The law is well settled that a court or tribunal can only draw an inference when it is the only reasonable inference that could be drawn from the evidence.
50.The Appellant submits that the Tribunal should have appreciated that there were multiple inferences that could have been drawn on the same facts … but what it did was draw the inference that no notice was made of and which had the most damaging impact for the Appellant.
I do not accept the submission that an inference can only be drawn where it is the only possible inference. The applicant has not referred to any authority to support that proposition, and I acknowledge that counsel for the applicant accepted at the hearing that the submission was an overstatement. In my view, the proper question to be asked in resolving this ground is whether there was a logically probative basis for the finding made by the Tribunal or the inference drawn by the Tribunal. There are now many authorities that address illogicality, irrationality or unreasonableness in relation to fact-finding. I note in particular the following comments of Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [131] and [135]:
131.…The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
…
135.…Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn…
The Tribunal provided a logically probative basis for its finding that the applicant was salary sacrificing or making lump sum contributions to her superannuation. I accept the submission of the respondents that it was open to the Tribunal to draw the inference it did in the light of the applicant’s evidence that her superannuation entitlements were valued at $870,617 in 2013 and $1,472,307 in March 2021, and where the applicant gave evidence that the proceeds of the sale of her rental properties was not contributed to her superannuation. No explanation was provided by the applicant for a rise in her superannuation of approximately $600,000 over a period of eight years, and in these circumstances, it was reasonably open to the Tribunal to infer that the applicant had made contributions to her superannuation account.
Submissions have been made by the parties in relation to whether the applicant ought to have provided information about her superannuation to the Tribunal. I acknowledge that the Direction made on 3 June 2021 did not specifically request that the applicant provide information about her superannuation account, but the applicant nevertheless had an obligation to provide full and frank disclosure to the Tribunal: see Humphries and Berry (SSAT Appeal) [2008] FMCAfam 409 [24]-[25], referred to in the Tribunal’s reasons at [8]. It was not unreasonable, illogical or irrational for the Tribunal to draw the inference that it did in the light of the evidence before it, and in circumstances where the applicant did not offer an alternative explanation to the Tribunal, either in the documents, or at the hearing, which she chose not to participate in.
While reasonable minds might reasonably have reached different conclusions on the evidence before the Tribunal, the reasoning process adopted by the Tribunal in this matter, the inferences drawn and the conclusion reached were all reasonably and logically open to it on the evidence.
Ground 8 is not established.
Ground 9
The Tribunal found that the applicant ‘benefitted from her association with her husband’s family business for example by the provision of a vehicle for her and travel and that these benefits should be taken into account’. The applicant submitted that the business referred to is the applicant’s husband’s mother’s business and that she is simply an employee. The applicant submitted that it is unclear what benefits the Tribunal is suggesting that the applicant receives aside from the use of a motor vehicle, and the motor vehicle is registered in the applicant’s husband’s name, is part of his salary and is not owned by the applicant. The applicant submitted that there is nothing special or out of the ordinary in a long-term spouse providing assistance to their partner during a period where they are unable to work, or in a person permitting their spouse to use their vehicle as and when required. The applicant submitted that is it unclear what the Tribunal determined was out of the ordinary for it to have regard to the applicant’s husband’s income, property and financial resources, and such evidence should have been disregarded.
The first respondent submitted that this ground should fail because the adequacy of reasons was not stated as a question of law for the appeal to this Court. The first respondent also submitted that the Tribunal provided adequate reasons for determining there were special circumstances, namely at [61] and [69] of its reasons. On a fair reading of the Tribunal’s decision, it is readily apparent that the Tribunal concluded that the special circumstances of the case included the transfer of wealth from the applicant to her husband together with the benefits received by the applicant from her husband’s mother’s business.
The Registrar submitted that it was a question for the Tribunal to determine whether there were special circumstances such that it was open to it to have regard to the income, property, earning capacity and financial resources of the applicant’s husband. The Registrar adopted the first respondent’s submissions and submitted that the Tribunal gave cogent reasons for its findings and was entitled to accept, reject or give weight to the evidence before it.
This ground does not establish any error of law in the Tribunal decision.
The pleaded ground includes the failure to provide any or sufficient reasons. However, none of the questions of law raised in this matter are based on inadequacy of reasons. As discussed above, s 44AAA of the AAT Act only confers jurisdiction on the Court to conduct an appeal on a question of law. Insofar as the ground asserts that the Tribunal reasons are inadequate, it is beyond the jurisdiction of the Court.
There is an extent to which the ground asserts that the Tribunal’s conclusion was not open at law based on the evidence before the Tribunal and the findings made by the Tribunal. To this extent, the ground is another ground that asserts illogicality, irrationality or unreasonableness in the Tribunal decision.
The Tribunal’s reasons show a plausible justification for its findings. The reasons need to be read fairly and as a whole. The question that the Tribunal had to address, relevant to the present ground, was whether, in the special circumstances of the case, it was appropriate to have regard to the income, property, earning capacity and financial resources of the applicant’s husband. This question was addressed, and answered, by reference to more than just the Tribunal’s finding that the applicant derives some benefits from her husband’s family business. At the very least, it was also based on its findings that the applicant had used her own financial resources to meet expenses that would otherwise need to be met by her husband or the business. The Tribunal also acknowledged that it was making its findings in the absence of explanations of the applicant or evidence to contradict the first respondent’s submissions about the benefits the applicant derived from her husband’s family business. This was again the consequence of the applicant’s choice not to participate in the hearing.
Again, in considering whether the Tribunal’s findings were open on the evidence, the question is whether there is a logically probative basis for the findings, and not whether other findings were open. The applicant has not demonstrated that the Tribunal’s findings are ones that no reasonable decision-maker, acting rationally, could have reached on the evidence before it.
Ground 9 is not established.
Ground 10
I note at the outset that, although I have accepted above that there was a question of law raised challenging the Tribunal’s fact finding on the basis that it was illogical or irrational, and that the ground as pleaded asserts that the Tribunal erred by making the relevant finding ‘without making proper enquiry’, the ground was not advanced in this manner in the applicant’s submissions.
The applicant submitted that the Tribunal failed to properly take into account her health in relation to her decision not to maintain paid employment. The applicant’s doctor confirmed that she is not currently seeking employment due to treatment for a chronic medical condition, and an Agency file note dated 28 September 2020 stated that she cannot work full time anymore because she has a medical problem. The applicant submitted that it cannot be said the applicant’s reason to cease employment was a desire to reduce her child support liability, and that the only evidence before the Tribunal were the medical reasons for her non-employment.
To the extent that the applicant’s submissions can be seen as a simple expression of disagreement with the Tribunal decision, they are not directed to the question of law or the ground of review. There is no error of law in the Tribunal simply making a wrong finding of fact.
To the extent that the applicant’s submissions might generously be viewed as an assertion of illogicality or irrationality, they do not establish an error of law. It was open to the Tribunal not to accept that the applicant was not working because of her health. She only partially complied with the relevant direction made by the Tribunal (see above at [58]-[59]), and her medical evidence contained minimal detail. The Tribunal also had regard to information provided to the Agency about the reasons she was not working, as well as information that she was active in the community. This is not a matter where only one conclusion was open on the evidence and the Tribunal did not reach that conclusion.
I otherwise accept the respondents’ submissions that the Tribunal was entitled to make a decision on the evidence before it, and that it was up to the applicant to ensure that all relevant documents and information that she wished the Tribunal to consider at the hearing were provided to the Tribunal. The Tribunal was not required to make the applicant’s case for her. As the Registrar submitted, although the Tribunal had a discretion in s 33(1)(c) of the AAT Act to ‘inform itself on any matter in such manner as it thinks appropriate’ and might have exercised powers under ss 95H and 95J of the Child Support (Registration and Collection) Act 1988 (Cth), those provisions do not create any ‘duty or obligation to inquire’: see Emerson v Emerson [2018] FCCA 812 at [25]-[26].
Ground 10 is not established.
Conclusion
The applicant has not established any error of law in the Tribunal decision. I therefore dismiss the appeal.
I certify that the preceding one hundred and six (106) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 7 October 2022
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