[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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AGLC
Hirst v Dalton [2021] FCCA 1697
Case
[2021] FCCA 1697
Decision Date
CaseChat Overview and Summary
This matter concerned an appeal by Mr Hirst (the applicant) against a decision of the Administrative Appeals Tribunal (AAT) regarding a child support assessment. Ms Dalton was the first respondent, and the Child Support Registrar was the second respondent. The applicant had sought a departure from an administrative assessment of child support, and the AAT had found one ground for departure established, reducing the applicant's adjusted taxable income by $95,000 for a specified period. The applicant appealed this decision to the court on questions of law.
The court was required to determine several legal issues, including the validity of the Assessment Act if certain contentions of the first respondent were accepted, and the appropriate costs order given the parties' respective successes and failures in the proceedings. The applicant had also raised a constitutional issue regarding the validity of the Assessment Act, which necessitated notification to the Commonwealth and State Attorneys-General.
During the proceedings, the applicant and the first respondent reached an agreement in concurrent family law proceedings, which included a Binding Child Support Agreement. This agreement, upon registration, discharged any unpaid child support and reduced the applicant's annual child support liability to zero. The court noted that this agreement substantially rendered moot all questions arising in the appeal proceedings. The court considered that both parties had reasonable positions regarding costs, with each experiencing some success and some lack of success.
Consequently, the court ordered that the applicant pay the costs of the second respondent in the assessed sum of $4,104.00 within 30 days. Otherwise, the matter was removed from the active pending cases list.
Orders
Orders of the court
SYG 454 of 2019
BETWEEN:
MR HIRST
Applicant
AND:
MS DALTON
Respondent
AND
CHILD SUPPORT REGISTRAR
Second Respondent
ORDER MADE BY:
JUDGE KEMP
DATE OF ORDER:
26 JULY 2021
THE COURT ORDERS THAT:
1. The applicant pay the costs of the second respondent in the assessed sum of $4,104.00 within 30 days of today’s date.
2. The matter is, otherwise, removed from the active pending cases list.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
Mr Matthews indicated that he was not aware of that provision. The Court directed on 5 February 2021 that Ms Davidson provide it with a brief written submission in terms of s. 55ZG of the Judiciary Act by 4.00pm on 12 February 2021 and Mr Matthews was given until 4.00pm on 24 February 2021 to provide any responsive submission. BACKGROUND On 21 December 2017, the applicant applied for a departure from the administrative assessment of child support, based on 6 of the statutory grounds for departure in s.117(2) of the Assessment Act. On 4 April 2018, a delegate of the CSR decided that one of the applicant’s reasons for departure had been established but that it would not be just and equitable to depart from the formula assessment. The applicant lodged an objection to that decision on 2 May 2018, which was disallowed. The applicant sought a review of the decision by the AAT on 16 August 2018. On 22 January 2019, the AAT determined, the applicant’s claim based on 6 grounds of departure from the administrative assessment and considered each of these and found that the ground for departure in s.117(2)(c)(ii) of the Assessment Act had been established, on the basis that the applicant had transferred a significant amount of property on behalf of the children and that this constituted a special circumstance supporting a departure from the formula assessment under s.117(2)(c)(ii) of the Assessment Act: AAT decision at [32]. In considering the terms and period of departure from the administrative assessment, the AAT rejected the applicant’s submission that he had met the full cost of the children’s accommodation, but accepted that his contribution was significantly greater than that of the first respondent and also that his extra contribution delivered a “substantial and quantifiable benefit to the children that should be taken into account in the child support assessment”: at [73]. The AAT found that the sum of benefits provided by the applicant outside the child support assessment could be quantified at $50,000.00 and that, having regard to his income tax rate, the applicant would need to earn $95,000.00 in gross income: at [75]. The AAT found that it would be just and equitable to reduce the applicant’s adjusted taxable income (“ATI”) by this amount, pursuant to ss.98C and 98(1)(g) of the Assessment Act. Accordingly, the AAT set aside the decision under review and decided to depart from the administrative assessment of child support pursuant to the Assessment Act by reducing the applicant’s adjusted taxable income by $95,000.00 for the period 21 December 2017 – 31 December 2020. An appeal to this Court on a question of law was available pursuant to s.44AAA(1) of the AAT Act. On 27 February 2019, in the General Federal jurisdiction of this Court, the applicant filed a Notice of Appeal, pursuant to s44AAA of the Administrative Appeals Tribunal Act 1975 on the questions of law arising from the decision of the AAT made on 22 January 2019, as referred to in paragraph 1, above.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
The Court is of the view that both parties had reasonable positions to argue in terms of the costs application and while each has had a degree of success, each has also had a degree of lack of success. There should, therefore, be no costs order in respect of the costs application, itself.Conclusion The Court is of the view that the applicant should be given 30 days to effect payment of the costs referred to in paragraph 69, above. The matter is, otherwise, removed from the active pending cases list.
Ratio Decidendi
Legal Principle Established
The Registry of this Court directed that the CSR be notified as to the proceedings pursuant to s.98D of the Child Support (Registration and Collection) Act 1998 (Cth) (“the Registration and Collection Act”). The first respondent filed a Cross Appeal on 4 April 2019. On 30 April 2019, the applicant filed an Amended Notice of Appeal which, contingently, put in issue, inter alia, whether the Assessment Act, based on certain propositions being advanced by the first respondent, was a valid law of the Commonwealth. The applicant’s primary position was that the contentions advanced by the first respondent as to the effect of the Assessment Act, should be rejected as a matter of construction, however, he took the view that, if her contentions were accepted, they would put the validity of the legislation in issue. On 6 May 2019, the first respondent discontinued her Cross Appeal. The applicant maintained that, as he was obliged to do pursuant to s.78B of the Judiciary Act, the Commonwealth Attorney General and the Attorneys General of the States of the Commonwealth were then put on notice of the constitutional issue raised in the Amended Notice of Appeal. Each of the Attorneys General chose not to intervene in these proceedings and confirmation of the same was provided. The applicant maintained that “no constitutional question should arise”. However, he also maintained that that was the position provided the first respondent’s case in answer to his appeal did not revive her restrictive contentions as to the scope for review of administrative decision making, and in that case, it may arise in reply. The applicant agreed that the first respondent did not file any written submissions and, therefore, the position that she might take in argument could not then be known. The CSR continued to participate in the appeal proceedings and advanced positions on all of the issues. On the point notified under s.78B of the Judiciary Act, the CSR submitted that it did not arise for decision. The Court notes that this corresponded with the primary thrust of the applicant although he maintained the reservation referred to in paragraph 33, above. On 28 January 2020, the applicant and the first respondent reached an agreement in relation to concurrent family law proceedings in the Family Court of Australia and, as part of that agreement, entered into, inter alia, a Binding Child Support Agreement which, upon registration: (a)Discharged any unpaid child support owing by the applicant to the first respondent; and (b)Reduced the annual rate of child support payable by the applicant under any relevant administrative assessment by 100%. In March 2020, the Binding Child Support Agreement was accepted by and registered with the Child Support Agency. The effect of the Binding Child Support Agreement being entered into between the applicant and first respondent was to eliminate the subject matter in these appeal proceedings and to, substantially, render moot all questions arising in those proceedings.