Federal Circuit and Family Court of Australia
(DIVISION 2)
Jarman v Glenham [2022] FedCFamC2G 733
File number(s): BRG 460 of 2021 Judgment of: JUDGE TONKIN Date of judgment: 5 September 2022 Catchwords: FAMILY LAW – Child Support – Appeal from decision of Administrative Appeals Tribunal – departure from administrative assessment of child support – whether Tribunal’s failure to consider decision in Douglas in its consideration of application for departure order was error of law – whether appellant denied procedural fairness – whether reasons adequate – whether decision manifestly unjust – leave to extend time refused – appeal dismissed Legislation: Administrative Appeals Tribunal Act1975 (Cth)
Child Support (Assessment) Act1989 (Cth)
Evidence Act1995 (Cth)
Cases cited: Agrippa & Horton (SSAT Appeal) [2010] FMCAfam 1144
Bedell & Kastens & Anor (SSAT Appeal) [2010] FMCAfam 1250
Blamey & Blamey [1994] FamCA 161
Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107
Child Support Registrar & Crabbe & Anor [2014] FamCAFC 10
Collector of Customs v Pressure Tanker Pty LtdandPazzolanic Enterprises Pty Ltd [1993] 43 FCR 280
CXS18 v Minister for Home Affairs [2020] FCAFC 18
Gallo v Dawson (1990) 93 ALR 479
Gyselman & Gyselman[1991] FamCA 93;
Henriques & Hatzis (SSAT Appeal) [2014] FCCA 1194
Mabry & Mabry & Anor (SSAT Appeal) [2010] FMCAfam 388
Minister for Immigration and Citizenship v Khadgi [2020] FCAFC 145
Division: Division 2 General Federal Law Number of paragraphs: 115 Date of last submission/s: 30 June 2022 Date of hearing: 26 May 2022 Place: Brisbane Counsel for the Applicant: Ms Dart Solicitor for the Applicant: Ruhl Family Law Centre Counsel for the First Respondent: Mr Fellowes Solicitor for the First Respondent: Resolute Legal Counsel for the Second Respondent: Ms Spottiswood Solicitor for the Second Respondent: Mills Oakley ORDERS
BRG 460 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR JARMAN
Applicant
AND: MS GLENHAM
First Respondent
CHILD SUPPORT REGISTRAR
Second Respondent
order made by:
JUDGE TONKIN
DATE OF ORDER:
5 September 2022
THE COURT ORDERS THAT:
1.The application for leave to extend time is refused.
2.The application for leave to rely on the transcript of the proceedings before the Tribunal on 6 April 2021 is granted otherwise the applicant for leave to adduce further evidence is refused.
3.The appeal with respect to grounds 1 (a), 1 (c ), 1 (d), 1 (e ), 3 (d) (i), 4 (a), 4 (b), 5 (a) and 6 (a) is dismissed.
4.The appeal with respect to grounds of appeal 1 (e) – 1 (f), 2, 3 (a) (i), (ii) and (iii), 3 (b) (i) and (ii), 3 (c ) (i) and (ii), 3 (d) (i) – (iii), 4 (c…
Continue reading Jarman v Glenham
Sign in free to access the full text
Details
- AGLC
- Jarman v Glenham [2022] FedCFamC2G 733
- Case
- [2022] FedCFamC2G 733
- Decision Date
CaseChat Overview and Summary
Jarman v Glenham is a case concerning an appeal from a decision of the Administrative Appeals Tribunal (AAT) in a child support matter. The applicant, Jarman, and the respondent, Glenham, were married in 2003 and separated in 2018. They have three children together. Jarman applied for a change of child support assessment, which was initially granted by the decision maker on 7 April 2020, but subsequently overturned by an objections officer on 30 October 2020. Glenham appealed the objections officer's decision to the AAT, which was reviewed and set aside on 6 April 2021. Both parties represented themselves before the Tribunal.
The legal issues in this case revolve around the scope of the appeal from the AAT to the Federal Circuit Court of Australia (FCCA). The appeal is limited to questions of law, and the court is not to re-examine the merits of the case or the evidence presented before the Tribunal. The court must determine whether the AAT's decision was within its legal powers and whether there was any jurisdictional error. Furthermore, the court's discretion to receive further evidence is limited to instances where the evidence bears on a jurisdictional error.
The court found that the AAT's decision to set aside the objections officer's decision was within its legal powers, and there was no jurisdictional error. The court held that the appeal was limited to questions of law and did not permit the reception of evidence not before the Tribunal. The court also found that the applicant's proposed further evidence did not bear on any jurisdictional error, and therefore, the court could not receive the fresh evidence.
In conclusion, the court dismissed the applicant's appeal and denied the application for leave to adduce further evidence. The AAT's decision to set aside the objections officer's decision was upheld, and the original child support assessment remains in place. The court emphasized the importance of the Tribunal providing clear reasons for its decisions, particularly where it involves the exercise of discretion, such as altering a child support amount.
The legal issues in this case revolve around the scope of the appeal from the AAT to the Federal Circuit Court of Australia (FCCA). The appeal is limited to questions of law, and the court is not to re-examine the merits of the case or the evidence presented before the Tribunal. The court must determine whether the AAT's decision was within its legal powers and whether there was any jurisdictional error. Furthermore, the court's discretion to receive further evidence is limited to instances where the evidence bears on a jurisdictional error.
The court found that the AAT's decision to set aside the objections officer's decision was within its legal powers, and there was no jurisdictional error. The court held that the appeal was limited to questions of law and did not permit the reception of evidence not before the Tribunal. The court also found that the applicant's proposed further evidence did not bear on any jurisdictional error, and therefore, the court could not receive the fresh evidence.
In conclusion, the court dismissed the applicant's appeal and denied the application for leave to adduce further evidence. The AAT's decision to set aside the objections officer's decision was upheld, and the original child support assessment remains in place. The court emphasized the importance of the Tribunal providing clear reasons for its decisions, particularly where it involves the exercise of discretion, such as altering a child support amount.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
The matter was heard on 26 May 2022 and again on 30 June 2022. I reserved judgment.Background The applicant and respondent commenced a relationship in 2001, married in 2003 and separated in July 2018 and divorced on 16 November 2020. There are three children of the marriage X born in 2005 (16), Y born in 2009 (12) and Z born in 2014 (8). On 20 December 2019 the applicant applied to the Child Support Agency for a change of assessment and the respondent cross applied. At the time of the application he was required to pay the respondent child support at the annual rate of $31,071 based on the applicant’s taxable income for the year ending 2019 of $135,855 and the respondent’s adjusted income of $60,812. On 7 April 2020 the decision maker changed the assessment to provide that for the period 1 January 2020 until 31 December 2021 the annual rate of child support the applicant was to pay was reduced by $11,804 in recognition of the respondent’s contribution to the children’s private school fees and charges. On 26 August 2020 leave was granted to the respondent to extend time to object to the decision made on 7 April 2020 and on 30 October 2020 an objections officer partially allowed the respondent’s objection and set aside the decision made on 7 April 2020. The respondent on 26 November 2020 applied to the Tribunal to review the objection decision. The review was carried out on 6 April 2021 with reasons published on 9 June 2021. Both parties represented themselves before the Tribunal. The Law Pursuant to section 44AAA of the Administrative Appeals Tribunal Act 1975 (Cth) a party to proceeding before the AAT (a child support first review) may appeal to the court in respect of a decision made by the AAT, in a child support matter on a question of law. An appeal from a first review decision of the Tribunal to the Federal Circuit Court of Australia (FCCA) does not constitute a re-hearing of the case on its merits but is limited to an appeal “on a question of law” alone. A particular question of law should be stated with sufficient precision.[2] [2] Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 at [62] In Henriques & Hatzis (SSAT Appeal) [2014] FCCA 1194 Brown J discussed the nature and legislative basis of appeals from a decision of a Tribunal to the FCCA. He said at [133] “it is the function of this court to determine whether the decision of the SSAT was within its legal powers. That is what is meant by a question of law. It is not the function of this court to examine the merits of that decision. Essentially, it is not the function of this court to reappraise the evidence led before the SSAT and re-determine the case, according to the conclusions it draws from the available evidence.” In Bedell & Kastens & Anor (SSAT Appeal) [2010] FMCAfam 1250, Sexton FM cited with approval the decision of Halligan FM in Agrippa & Horton (SSAT Appeal) [2010] FMCAfam 1144 who summarised the applicable law when a court reviews a decision of the Tribunal in the following terms at [10] to [11]:[10] …“the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error” (Collector of Customs v Pozzolanic Enterprises Pty Ltd, (1993) 43 FCR 280, at 287, cited with approval in Minister for Immigration and Multicultural Affairs v Wu Shan Liang[1996] HCA 6; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ, and see the comments of Kirby J to similar effect at 291).[11] Nonetheless as Riethmuller FM noted in PJ & Child Support Registrar, [2007] FMCAfam 829 at [38], [2007] FMCAfam 829; (2007) 38 Fam LR 31, (2007) FLC 98-035:‘[38] The only right of review of a decision of the SSAT is an appeal ‘on a question of law’ to the courts ... Most significantly, such an appeal does not allow for a review on the merits. As a result, it is important for the Tribunal to provide appropriate reasons. This will usually entail careful findings of fact and clear explanations of the reasons for any decision, particularly where it involves the exercise of a discretion such as altering a child support amount.
Evidence
Evidence Before The Court
With respect to the application for leave to extend time the Court as required intends to first consider the prospects of the appeal and whether in all the circumstances there is sufficient doubt to warrant the matter being reconsidered and secondly whether a substantial injustice would result if leave were refused. Application for leave to adduce further evidence In addition to seeking leave to extend time the applicant seeks leave to adduce further evidence. Though the Court has a discretion to receive further evidence on the hearing of an appeal[22] in SZJMG v Minister for Immigration& Anor[2008] FCA 1145 Mckerracher J said:[27] An appeal from the Tribunal to the Federal Magistrates Court or an appeal to this Court is limited to review of jurisdictional error. Fresh evidence is not admissible unless it bears on some jurisdictional error. In MZXHY v Minister for Immigration and Citizenship[2007] FCA 622, Nicholson J stated at [8]:[8] It is not open for an appellant to ask the Court to admit new evidence for the purpose of inviting the Court to disagree with a factual conclusion reached by the Tribunal. Spender J in Servos v Repatriation Commission[1995] FCA 1137; (1995) 56 FCR 377 at 380 determined the question of ‘... whether, and to what extent, an appellant for review pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) can adduce evidence which was not before the tribunal at the time of its decision’. At 381 Spender J observed that appeals to the Court from the Administrative Appeals Tribunal ‘... are only on questions of law’. His Honour further held at 382 that the Court had no power to receive the fresh evidence: see also at 385. Marshall J in Ozberk v Minister for Immigration and Multicultural Affairs (1998) 79 FCR 249 at 254 approved Servos [1995] FCA 1137; 56 FCR 377 in a migration law framework.[22] Section 44 (8) of the Administrative Appeals Tribunal Act 1975 (Cth) The applicant argued that leave to adduce further evidence in the form of his affidavits filed 13 October 2021 and 8 April 2022 should be granted on the basis that the evidence was not available to the applicant at the hearing in April 2021, that there is a need for finality in litigation and that the outcome of the appeal is likely to reduce the need for a further departure application moving forward as it will assist the Registrar how to treat the applicant’s income into the future. The applicant relied on the principles established by the High Court in CDJ v VAJ (1998) 157 ALR 686 at [104] ff where the majority comprising McHugh, Gummow and Callinan JJ identified a number of relevant factors in the context of family law proceedings. The applicant sought to rely on evidence contained in affidavits filed on 13 October 2021 and 8 April 2022 the majority of which was not available at the hearing. The applicant primarily seeks to challenge the factual findings of the Tribunal i.e. findings of fact regarding the parties’ mutual intention concerning private schooling, the applicant withdrawing financial support for private schooling and that his circumstances had “significantly changed since separation.” A consideration of the transcript indicates most factual issues were raised in the hearing before the Tribunal.
Decision
Reasons for decision
On appeal the AAT Act generally does not permit the reception of evidence not before the Tribunal. Pursuant to subsection 44 (7) the Court may make findings of fact if:(a)the findings of fact are not inconsistent with findings of fact made by the Tribunal (other than findings made by the Tribunal as a result of an error of law); and (b)it appears to the Court that it is convenient for the Court to make the findings of fact, having regard to:(i)the extent (if any) to which it is necessary for facts to be found; and(ii)the means by which those facts might be established; and(iii)the expeditious and efficient resolution of the whole of the matter to which the proceeding before the Tribunal relates; and (iv)the relative expense to the parties of the Court, rather than the Tribunal making findings of fact; and (v)the relative delay to the parties of the Court rather than the Tribunal making findings of fact;(vi)whether any of the parties considers that it is appropriate for the Court, rather than the Tribunal to make the findings of fact; and(vii)such other matters (if any) as the Court considers relevant.(19Subsection 44 (8) provides that for the purposes of making findings of fact under subsection (7) the Court may (a) have regard to the evidence given in the proceeding before the Tribunal; and (b) receive further evidence. Any further evidence provided is not for the purpose of demonstrating an error of fact: Waterford v Commonwealth[1987] HCA 25; (1987) 163 CLR 54; (1987) 61 ALJR 350; (1987) 71 ALR 673 (“Waterford”) but rather the evidence has a tendency to demonstrate an error of law: Rana v Repatriation Commission[2011] FCAFC 124; (2011) 126 ALD 1 (“Rana”).Tribunal’s decision 9 June 2021 The Tribunal set out the parameters of the parties competing applications as follows:On 20 December 2019 the applicant applied for a change of assessment on the following grounds:(a)That the costs of maintaining the children are significantly affected by the costs of caring for, educating or training them in the manner intended by both parents (Reason 3);(b)The child support assessment is unfair because the applicant as the paying parent has given money, goods or property to the children of the assessment the receiving parent or another person for the benefit of the children (Reason 5);(c)The income, property and financial resources of the respondent are not accurately reflected in the administrative assessment making it unjust and inequitable (Reason 8A); and (d)The respondent’s earning capacity it greater than is reflected in her income for the purpose of child support (Reason 8B). The respondent cross applied on the basis that:(e)Having regard to the proper needs of the children the costs of maintaining the children are significantly affected by the cost of providing for their special needs (Reason 2); and (f)The costs of maintaining the children are significantly affected by the costs of caring for, educating or training them in the manner intended by both parents (Reason 3)
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.