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…
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- AGLC
- Greene v Jordan [2022] FedCFamC2G 812
- Case
- [2022] FedCFamC2G 812
- Decision Date
CaseChat Overview and Summary
In the case of Greene v Jordan, the applicant, the mother of two children, appealed against a decision of the Administrative Appeals Tribunal (Tribunal) that varied her adjusted taxable income for the purposes of child support calculations. The first respondent, the father, had applied for a departure determination from the administrative assessment of child support, arguing it was unfair due to the applicant’s income, property, and financial resources. The Tribunal found grounds for departure under sections 117(2)(c)(ia) and (ib) of the Child Support (Assessment) Act 1989 (Cth), concluding that the application of the administrative assessment would result in an unjust and inequitable determination of child support due to the applicant’s financial resources and earning capacity. The Tribunal set aside the objection decision and varied the applicant’s adjusted taxable income to $100,000 per annum for the specified period.
The central legal issues in this appeal were whether the Tribunal erred in law by finding grounds for departure from the administrative assessment of child support, and if so, whether the Tribunal’s decision was just, equitable, and proper. The appeal required the court to review the Tribunal’s interpretation and application of the relevant statutory provisions and to assess the correctness of its factual findings in light of the evidence presented. The court had to determine whether the Tribunal properly identified and considered all relevant circumstances, including the applicant’s financial resources, income, and the benefit she derived from her association with her husband’s family business.
The court found no error in the Tribunal’s decision. The Tribunal had correctly identified and applied the statutory provisions, and its findings regarding the applicant’s financial resources and earning capacity were supported by the evidence. The court held that the Tribunal had appropriately considered the applicant’s financial situation, including her superannuation contributions, the proceeds from the sale of rental properties, and the benefits she received from her husband’s family business. The Tribunal’s determination that a departure from the administrative assessment was warranted was found to be just and equitable, taking into account the special circumstances of the case.
In light of the court's findings, the appeal was dismissed, and the Tribunal’s decision was upheld. The Tribunal’s variation of the applicant’s adjusted taxable income to $100,000 per annum for the period from 20 August 2020 to 9 November 2025 remained in effect.
The central legal issues in this appeal were whether the Tribunal erred in law by finding grounds for departure from the administrative assessment of child support, and if so, whether the Tribunal’s decision was just, equitable, and proper. The appeal required the court to review the Tribunal’s interpretation and application of the relevant statutory provisions and to assess the correctness of its factual findings in light of the evidence presented. The court had to determine whether the Tribunal properly identified and considered all relevant circumstances, including the applicant’s financial resources, income, and the benefit she derived from her association with her husband’s family business.
The court found no error in the Tribunal’s decision. The Tribunal had correctly identified and applied the statutory provisions, and its findings regarding the applicant’s financial resources and earning capacity were supported by the evidence. The court held that the Tribunal had appropriately considered the applicant’s financial situation, including her superannuation contributions, the proceeds from the sale of rental properties, and the benefits she received from her husband’s family business. The Tribunal’s determination that a departure from the administrative assessment was warranted was found to be just and equitable, taking into account the special circumstances of the case.
In light of the court's findings, the appeal was dismissed, and the Tribunal’s decision was upheld. The Tribunal’s variation of the applicant’s adjusted taxable income to $100,000 per annum for the period from 20 August 2020 to 9 November 2025 remained in effect.
Orders
Orders of the court
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Background
Background to the litigation
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.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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.
Ratio Decidendi
Legal Principle Established
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