Heaton and Ellsworth (Child support) - [2023] AATA 4664

Heaton and Ellsworth (Child support) [2023] AATA 4664 (5 October 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/MC025406
APPLICANT:  Mr Heaton
OTHER PARTIES:  Child Support Registrar
Ms Ellsworth

CATCHWORDS
CHILD SUPPORT – reinstatement application – meaning of ‘error’ beyond procedural error - meaning of ‘reasonable timeframe’ - whether applicant denied procedural fairness –application for reinstatement refused

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988.

DECISION ON APPLICATION FOR REINSTATEMENT:

On 7 July 2023, the application for review was dismissed[1] as Mr Heaton failed to comply with a direction by the Tribunal in relation to the application. Written reasons were provided to Mr Heaton on 13 July 2023.
[1] Subsection 45A(5) of the Administrative Appeals Tribunal Act 1975
Mr Heaton, via his new legal representative now seeks reinstatement of the application on the following grounds:
·The Tribunal made an error;
·The Tribunal misconstrued section 42A(5)(b) of the Administrative Appeals Tribunal Act (1975);
·There has been a denial of procedural fairness especially as the decision under review extends departure of the child support assessment until 2027.
The second party opposes the reinstatement.
The only discretion to reinstate in this matter is found in subsection 42A(10) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) and can only be exercised if “it appears to the Tribunal that an application has been dismissed in error”. What constitutes a dismissal in error has been the subject of much judicial discussion and debate discussed below.
The Tribunal will deal with each of the grounds raised in paragraph 2 above.

Has the Tribunal made an error in dismissing Mr Heaton’s application?

Submissions on behalf of the applicant referred to the definition of ‘error’ as cited in the matter of Goldie v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 367 (Goldie) suggesting that the action taken to dismiss Mr Heaton’s matter falls within the scope of the definition expressed.
At first instance this case can be differentiated on the facts. Goldie concerned a case of nonappearance. This matter concerns a case where the applicant deliberately failed to comply with timetabled directions in a case management strategy that was not only communicated at a telephone directions hearing, attended by himself and his lawyers, but also in the direction itself. However, given the submissions and the serious allegation that the Tribunal has fallen into error, the circumstances of Goldie were revisited.
As the Tribunal understands it, the circumstances in Goldie were that the applicant instructed counsel to appear to apply on an adjournment application. The Tribunal refused the adjournment application, and then dismissed the review application for non-appearance (under AAT Act s 42A(2)), when neither the applicant nor his counsel was present at the immediately ensuing hearing. The applicant subsequently applied…

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.

Continue reading Heaton and Ellsworth (Child support)

Details

AGLC: Heaton and Ellsworth (Child support) [2023] AATA 4664
Case: [2023] AATA 4664
Decision Date: 5 October 2023

CaseChat Overview and Summary

This matter concerned an application by Mr Heaton to reinstate his child support review application, which had previously been dismissed by the Administrative Appeals Tribunal (AAT) for non-compliance with a Tribunal direction. The Child Support Registrar opposed the reinstatement. Mr Heaton sought reinstatement on the grounds that the Tribunal had made an error, misconstrued a provision of the Administrative Appeals Tribunal Act 1975 (AAT Act), and had denied him procedural fairness.

The Tribunal was required to determine whether the dismissal of Mr Heaton's application constituted an "error" within the meaning of subsection 42A(10) of the AAT Act, which is the sole basis for exercising discretion to reinstate a dismissed application. This involved considering the scope of "error" as interpreted in case law, particularly the Federal Court decision in *Goldie v Minister for Immigration and Multicultural Indigenous Affairs* [2002] FCAFC 367. The Tribunal also had to assess whether Mr Heaton had been denied procedural fairness, particularly in light of the significant consequences of the underlying child support assessment.

The Tribunal reasoned that the discretion to reinstate under subsection 42A(10) of the AAT Act is broad and extends beyond mere administrative error, potentially encompassing errors made by a party or their representative. However, in this instance, the dismissal resulted from Mr Heaton's deliberate failure to comply with a case management timetable, which had been clearly communicated to him and his legal representatives. The Tribunal found no error on its part, distinguishing the facts from *Goldie* where the dismissal was more directly linked to the Tribunal's actions. The Tribunal also found no denial of procedural fairness, noting that the timetable and consequences of non-compliance were made clear, and that proceeding without the necessary financial disclosure would have been speculative and inappropriate for child support matters.

Consequently, the Tribunal refused Mr Heaton's application for reinstatement, finding that the dismissal was a direct result of his non-compliance with Tribunal directions and not due to any error on the part of the Tribunal.

Orders