Jarman v Glenham
[2022] FedCFamC2G 733
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
Hunter Valley Developments Pty Ltd & Ors v The Hon Barry Cohen, Minister for Home Affairs and Environment [1984] FCA 186
Mabry & Mabry & Anor (SSAT Appeal) [2010] FMCAfam 388
Minister for Immigration and Citizenship v Khadgi [2020] FCAFC 145
Minister for Home Affairs v Omar [2019] FCAFC 188
SZSLA v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 944
Tickner v Chapman (1995) 57 FCR 451
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 ), 5 (b), 5 (c), 5 (d), 6 (b), 6 (c ), 6 (d) is dismissed.
5.The first and second respondents file written submissions as to costs within 28 days.
6.The applicant file written submissions as to costs within 14 days of receipt of the respondents’ costs submissions.
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 proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Jarman v Glenham is approved pursuant to s 110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).
REASONS FOR JUDGMENT
JUDGE TONKIN
This is an appeal from a decision of the Administrative Appeals Tribunal (“the Tribunal”) pursuant to section 4AAA of the Administrative Appeals Tribunal Act1975 (Cth) from a first review decision of the Tribunal made on 9 June 2021. The decision subject of appeal relates to a departure from administrative assessment in special circumstances pursuant to Division 4 of the Child Support Administrative (Assessment) Act 1989 (“the Assessment Act”).
The applicant seeks an order pursuant to subsection 44 (2A) of the Administrative Appeals Tribunal Act1975 (Cth) as modified by section 44AAA (2) to extend time in which to file his Appeal. Should leave to extend time be granted the applicant seeks the following orders in his Amended Notice of Appeal filed 8 April 2022:
(a)Leave be granted in which to extend time to file his Notice of Appeal
(b)Leave be granted to adduce further evidence in the appeal;
(c)The appeal be allowed and the decision of the Tribunal be set aside save for the decision to adjust the respondent’s taxable income for the period 1 January 2020 to 31 December 2021 to $71,807;
(d)the applicant’s adjusted taxable income be varied for the period 1 January 2020 to 31 December 2021 to $78,086; and
(e)the applicant not be required to contribute towards the children’s private school fees and his annual rate of child support not be increased.
In the alternative:
(a)Regarding school fees the parties contributions be calculated to take into account the bursaries received by the respondent;
(b)The amount the applicant be required to contribute be reduced by the amount directly received by the respondent from the Department of Veteran’s Affairs education allowance the eligibility for which came about as a result of the applicant’s service in the Australian Defence Force; and
(c)The applicant seeks an order that the respondent pay his costs of the appeal.
The appeal
The applicant in his Amended Notice of Appeal filed 8 April 2022 raises four questions of law and contends that the Tribunal erred:
(a)Errors in the assessment of the applicant’s adjusted taxable income and/or financial resources available to him;
(b)Errors in finding that private school fees ought to be apportioned between the parties because:
(i)There was no mutual intention of the parties concerning private schooling as at the date of the hearing;
(ii)The applicant had withdrawn financial support for private schooling and the respondent accepted liability for ongoing private school fees through her action;
(iii)The applicant’s financial circumstances had significantly changed since separation of the parties resulting in him no longer being able to afford to contribute towards private school fees.
(c)Procedural fairness not being afforded to the applicant because:
(i)He was not informed of a legal authority that materially affected the calculation of his adjusted taxable income and further that the legal authority was not followed by the Tribunal;
(ii)Consequences flowing from concessions said to be made by the applicant were not understood or explained in circumstances where the applicant was self – represented; and
(iii)Concessions said to have been made were inconsistent with the applicant’s submissions and other evidence before the Tribunal.
(d)A failure to provide adequate reasons.
Documents relied on
The applicant[1] relied on the Notice of Appeal filed on 13 October 2021 and Amended Notice of Appeal on 8 April 2022. With respect to his application for leave to extend time and leave to adduce further evidence the applicant sought to rely on affidavits filed on 23 September 2021, an affidavit filed on 31 October 2021, two affidavits filed on 8 April 2022 one of which annexed the transcript of the Tribunal hearing on 6 April 2021, an affidavit filed by his solicitor Ms Eckel on 8 April 2022, a Tender Bundle filed on 11 November 2021 and case outline filed on 22 April 2022.
[1] The appellant (applicant for review) is hereinafter referred to as the “applicant.”
The First Respondent filed a response on 12 November 2021, an amended response on 20 April 2022, a Notice of Contention filed on 12 November 2021 and amended Notice of Contention filed 20 April 2022. The first respondent sought to rely on an affidavit filed on 11 November 2021 and on 19 April 2022 and relied on outline of submissions filed 6 May 2022 and Costs Notice filed 18 May 2022.
The Second Respondent filed no evidence and relied on submissions filed on 19 May 2022. No objection was taken to the parties’ reliance on further evidence however that material save for the transcript of proceedings before the Tribunal on 6 April 2021 primarily raised issues of fact not before the Tribunal.
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.
The Full Court of the Federal Court in Collector of Customs v Pressure Tanker Pty LtdandPazzolanic Enterprises Pty Ltd [1993] 43 FCR 280 said regarding appeals from decisions of the Administrative Appeals Tribunal “the nature of the task of this court is clear. It is to leave to the tribunal of fact decisions as to the facts and to interfere only when the identified error is one of law”.
In Child Support Registrar & Crabbe & Anor [2014] FamCAFC 10 at [54] the Full Court of the Family Court set out the principles that emerge from the authorities and have relevance when reviewing a decision of the Tribunal:
•The question of whether there is evidence to support a finding of fact or an inference drawn from findings of fact is a question of law (Al-Miahi[3]);
•The making of a finding of fact or the drawing of an inference in the absence of evidence is an error of law (Al-Miahi);
•A wrong finding of fact is not an error of law (Al-Miahi);
•A finding of fact based on reasoning that is “demonstrably unsound” or on an “illogical course” or a “faulty process” of reasoning is not an error of law (Al-Miahi);
•Judicial review is not to be over-zealous in seeking to find inadequacy of reasoning by an administrative decision maker; the review of the reasons of an administrative decision maker must not be turned into a reconsideration of the merits of the decision (Wu Shan Liang[4]); and
•Section 103X(3)(b) of the Registration and Collection Act (by analogy with s 430 of the Migration Act) requires the (Tribunal) to do no more than set out the findings which it did make on facts which it considered material to the decision which it made (Yusuf[5]).”
[3] Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744; (2001) 65 ALD 141
[4] Minister for Immigration and Ethnic Affairs v Wu Shan Liang(1996) 185 CLR 259
[5] Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323
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)
The administrative assessment in place at the time of the application on 20 December 2019 required the applicant to pay child support to the respondent at the annual rate of $31,071. That assessment was based on the applicant’s 2018/2019 adjusted taxable income (ATI) of $135,855 and the respondents 2018/2019 ATI of $60,812.
On 7 April 2020 a Child Support Agency decision maker found Reason 3 was established and changed the assessment to provide that for the period 1 January 2020 until 31 December 2021 the annual rate of child support payable by the applicant 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 the CSA granted the respondent’s application for an extension of time in which to object to that decision.
When the matter was heard before the Tribunal on 6 April 2021 the following issues were identified by the Tribunal member[6]:
(a)The income, financial resources and property available to each party for child support purposes; and
(b)The level of the applicant’s contribution to the children’s private school fees and charges.
[6] Decision [10]
No challenge was made to the Tribunal’s application of the statutory provisions under the Child Support (Assessment) Act 1989 (Cth).[7]
[7] Decision [11] – [16]
The respondent’s case before the Tribunal centred around her taxable income derived from the business Company B the fact that the applicant’s Department of Veteran’s Affairs Special Rate Disability Pension (DVA pension) of $34,000 p.a. should be taken into account as a financial resource available to him for child support purposes notwithstanding that it was treated as a tax free pension by the ATO and the apportionment of the parent’s contributions to the school fees and charges for the children relative to their respective incomes and financial resources.
The applicant argued that the Tribunal was required to consider the income and financial resources available to the respondent for child support purposes from her interests in Company C and a unit trust the Company B Unit Trust and the respondent’s “unexercised capacity” to earn income in consequence of a change in her work pattern and recognition of the DVA education allowances paid to the respondent for the children in the determination of his contribution to the children’s school fees and charges.
Of significance neither parent took issue with the objections officer’s determination of the parties’ respective liability to contribute to the children’s school fees.[8] The respondent expressed a desire that those contributions be considered in light of her submissions regarding the ultimate determination of the respective parents’ taxable incomes and financial resources available to them for child support purposes.
[8] Decision [19] and transcript of proceedings before Tribunal 6 April 2021
The Tribunal undertook a thorough assessment of the evidence. In assessing the income and financial resources available to the parties an issue arose whether the DVA pension was in fact an exempt payment not available for child support purposes pursuant to the provisions of the Act. On 13 April 2021 the applicant emailed the Tribunal to advise that notwithstanding the tax free status of that pension for income tax purposes the DVA pension was a resource available for child support purposes.[9]
[9] Decision [20]
The Tribunal member analysed the information provided by the respondent with respect to her income and the financial resources and focused its attention on the financial records provided by the respondent for Company C “the principal source of her income and financial resources for the period under consideration in the objection decision 1 January 2020 and 31 December 2021.”[10] The Tribunal noted that the applicant did not challenge that evidence during the hearing. The Tribunal was satisfied that the respondent’s adjusted taxable income (ATI) for the financial year 2019/2020 was $71,961.
[10] Decision [26]
The Tribunal then assessed the applicant’s income and financial resources for child support purposes and found[11] that the income and financial resources available to the applicant for child support purposes included his DVA pension for the financial year ending 2019/2020 of approximately $34,000 and noted that the applicant reported his average gross weekly income of $2667.70 annualised to $138,720.40 observing that that amount “approximates his 2019/2020 income of $137,886 recorded in the objection decision as the income upon which he is currently assessed in the administrative assessment.”
[11] Decision [43]
The Tribunal found “that the DVA tax exempt pension he received for the 2019/2020 was a financial resource” for the purposes of child support which is not reflected in his taxable income of $137,886 for the year ending 2019/2020 and said “adding his non - taxable DVA pension to his taxable income results in a combined taxable income and financial resources of $171,886.”
The Tribunal then referred to the evidence provided by the applicant in his statement of financial circumstances where the applicant deposed to total gross weekly income as at 17 December 2020 of $3341.21 annualised to $173,742.40 (rounded down to $173,742) comprising his weekly income of $2667 (annualised to $138,684) plus his tax exempt weekly DVA pension of $673.51 annualised to $35,022.52 (rounded up to $35,023). The Tribunal said “the Tribunal considers it reasonable to assess the applicant’s income and financial resources available to him for child support purposes for the 2020/2021 financial year as equating to annual income of $173,707.[12]
[12] Decision [44] – [45]
The Tribunal indicated that the administrative assessment as at the date of change of the assessment application on 20 December 2019 required the applicant to pay the respondent child support for the period 21 November 2019 until 20 February 2021 at the annual rate of $31,071 based on his 2018/2019 taxable income assessment of $135,855 and the respondent’s 2018/2019 taxable income of $60,812. The Tribunal found that the income and financial resources available to the applicant “equated to an income of $171,886 and for 2020/2021 financial year his taxable income and financial resources available for him for child support purposes equated to an income of approximately $173,707 ”[13] and the respondent’s taxable income and financial resources for 2019/2020 financial year equated to an income of $71,961 and her taxable income for 2020/2021 based on payslips for the year 1 March 2021 will be approximately $71,653 (annualised).
[13] Decision [47]
Having considered the applicant’s assertion that the respondent had reduced her capacity to earn income the Tribunal found that the respondent did not suggest there would be any reduction in her 2019/2020 income of $71,961 and found there had been no diminution in her income as a result of a changed work pattern finding no ground for departure existed on that basis.[14]
[14] Decision [51] – [53]
The Tribunal found there was no dispute regarding the parties’ mutual intention that the children receive a private education observing that the applicant acknowledged in evidence that he accepted responsibility for meeting half of the children’s education costs.[15]
[15] Decision [54]
The respondent raised an issue with respect to the apportionment of education costs whilst the applicant raised an issue regarding the DVA education allowances and the Covid19 bursary granted by the children’s school. The Tribunal noted that the letter of 27 August 2020 from the D School to the respondent had been taken into account in the objection decision maker’s determination of the applicant’s contributions towards school fees and charges.[16] Further the applicant acknowledged that he had not made a financial contribution towards the children’s school fees and charges since October 2019.
[16] Decision [56]
The respondent reported that the DVA education allowances were paid into her bank account and applied for the benefit of the children’s education expenses. The D School’s bursary provided a 50% reduction in the balance of the school fees for Semesters 2 in 2020 and Semester 1 in 2021 after deducting the school’s family maximum discount of $421.25 p.a. and siblings’ discounts of $475 and $536.25 per term calculated at $2998.75 in the D Schools fee statement. The Tribunal found that the total amount of the adjusted school fees for the 2021 school year would be $18,943.[17]
[17] Decision [62]
In determining whether a departure from the administrative assessment would be just and equitable the Tribunal gave detailed consideration to the parties’ respective income, property and financial resources.[18]
[18] Decision [72]
Ultimately the Tribunal determined that the taxable income and financial resources available to the applicant were $173,707 for the year ending 2020/2021 and the respondents taxable income and financial resources for the same year $71,653.[19] The respondent’s “adjusted taxable income” was varied to $71,807 for the period 1 January 2020 to 31 December 2021 and the applicants “adjusted taxable income” for the same period varied to $172,796.
[19] Decision [79]
Regarding the apportionment of the parties respectively liabilities for the children’s school fees and charges for the years 2020 and 2021 the Tribunal applied the apportionment in accordance with the percentage relationship each parent’s income and financial resources bears to the other. The Tribunal determined that the percentage apportionment between the parties’ respective averaged incomes reflects percentages of 70% for the applicant and 30% for the respondent. Thus the applicant’s share of the children’s total adjusted school fees of $18,943 for each of 2020 and 2021 school years is therefore $13,260. The Tribunal determined to increase the applicant’s annual rate of child support for the period 31 January 2020 to 1 December 2020 and 31 January 2021 to 1 December 2021 by $13,260 in recognition of his contribution to the children’s school fees.[20] The Tribunal determined the decision made was otherwise proper in the circumstances.
[20] Decision [84]
Application for leave to extend time
The principles relating to whether it is appropriate to extend time are well established. In Gallo v Dawson (1990) 93 ALR 479 at page 480 McHugh J made the following observations:-
The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties: see Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1978) VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board (1973) 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185.”
In Hunter Valley Developments Pty Ltd & Ors v The Hon Barry Cohen, Minister for Home Affairs and Environment [1984] FCA 186, (1984) 3 FCR 344; 58 ALR 305; 7 ALD 315 Wilcox J discussed the applicable principles at pp.11 – 14 as follows:
(a)Prima facie, proceedings commenced outside the prescribed period will not be entertained. An extension of time will be granted, however, if it is proper to do so.
(b)It is relevant whether the appellant rested on his rights or took action to make the decision-maker aware that the decision was being contested.
(c)Any prejudice to the Respondent that would be caused by granting an extension of time is relevant.
(d)The merits of the appeal are relevant.
(e)Fairness of granting the extension of time as between the applicant and other persons in a like position is relevant and further that it must be fair and equitable in the circumstances.
In support of the application for leave to extend time Counsel for the applicant contends that the Court should first consider the prospects of the appeal and whether in all the circumstances there is sufficient doubt to warrant it being reconsidered and then secondly whether a substantial injustice would result if leave were refused. In BVG17 v BVH17 (2019) 268 FCR 448 the Full Court summarised the principles adopted whether to grant leave to extend time and said:
(a)An extension of time will not be granted unless the Court is positively satisfied that it is proper to do so;
(b)The length of delay is a relevant factor;
(c)The applicant must show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend time.
(d)Any prejudice to the respondent is a material factor militating against the grant of an extension although the absence of prejudice does not without more suffice to justify the grant of an extension of time;
(e)The merits of the substantive application are properly taken into account.
Counsel for the applicant noted that the Tribunal delivered its decision on 9 June 2021 and the appeal should have been filed by 7 July 2021 (28 days following the date of the decision). The appeal was filed on 13 October 2021 although the applicant’s solicitor first attempted to file the Notice of Appeal on 24 September 2021.
The applicant deposed in his affidavit filed on 13 October 2021 that:
(a)In early 2021 he saw on a Face Book page for veterans that a decision had been made by the Full Court which could impact some pensions. The post said to email a particular ATO address to opt out into the scheme;
(b)He emailed the ATO on 28 April 2021 and was contacted by a member of the ATO some weeks later and confirmed his identity. He heard nothing further from the ATO at that stage and did not know if the decision impacted him;
(c)In August 2021 he received via post a copy of his PAYG payment summary from the Commonwealth Superannuation Corporation. This PAYG payment summary indicated that his Military Superannuation and Benefits Scheme pension was now being categorised in a different way. Annexure 2 to his affidavit shows that his pension for the year ending 30 June 2021 now included $62,020 as a tax free component;
(d)He arranged to seek legal advice on 4 September 2021;
(e)In an attempt to avoid the need for an appeal he instructed his solicitor to write to the respondent on 9 September 2021 seeking to resolve the dispute. The dispute was not resolved and he instructed his solicitor to lodge the Notice of Appeal.
A legal secretary from the applicant’s solicitor’s office deposed in her affidavit filed 8 April 2021 that she made various attempts to file the Notice of Appeal. On 24 September 2021 the documents were sent to the Northern Appeals Registry and on 27 September 2021 she received an email from the Northern Appeals Registry stating that the documents should be filed with the Townsville Registry. She said this was done on the same day. On 7 October 2021 she received an email from the Queensland Registry stating that the proper registry to receive the documents was the Brisbane Registry. An attempt was made to file the documents in the Brisbane Registry on 11 October 2021 with the FedCourt Portal where she experienced difficulties and was then advised to email the documents to the Brisbane Registry for filing. She then was advised by the Brisbane Registry that she was given incorrect information and was assisted to file the documents through the FedCourt Portal. The documents were processed on 13 October 2021.
The applicant contends any delay in filing was the responsibility of the Court between 24 September and 13 October 2021 and he did not delay seeking to appeal the decision once he was aware of the impact of the decision in Douglas.[21] I find the explanation for delay acceptable.
[21] Commissioner of Taxation v Douglas [2020] FCAFC220
The applicant deposed to receiving various Notices of Amended Assessment from the ATO between June 2021 and December 2021 and as a result he received tax refunds. Counsel for the applicant argued that a child support debt that arose “as a result of the Tribunal’s decision” has been paid and there is no prejudice to the first respondent in the delay in filing the Notice of Appeal. Counsel relied on the grounds of appeal and argued that the appeal had particular merit. The First Respondent opposed leave being granted. Similarly Counsel for the Registrar opposed leave to extend time being granted. Neither respondents contend they would suffer prejudice should leave to extend time be granted.
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.
The appeal is limited to a review of jurisdictional error. As a merits review is not permissible I decline to admit any further affidavit evidence save for the transcript of proceedings before the Tribunal on 6 April 2021.
Questions of law 1, 2, 3 (a), 3 (b) (ii) 4, 5 (a), 5 (b), 5 (c ), 6 (c ) (i), 7 (a) and proposed grounds of appeal 1 (a), 1 (c ), 1 (d), 1 (e ), 3 (d) (i), 4 (a), 4 (b), 5 (a) and 6 (a)
The applicant argued that the Tribunal erred in failing to consider and apply the ratio in the decision in Commissioner of Taxation v Douglas [2020] FCAFC 220 in determining the applicant’s adjusted taxable income for child support purposes and contends that the Tribunal had an obligation to ensure the parties were aware of the decision in Douglas and the impact of that decision and as such the applicant was denied procedural fairness. Further the applicant contends that the Tribunal erred in adding the whole of the value of the applicant’s DVA pension to his “taxable income” including the tax free component of the applicant’s pension.
In Douglas the Full Federal Court determined that a superannuation income stream benefit under subsection 307 – 70 (1) of the Income Tax Assessment Act 1997 (Cth) (ITAA) is a superannuation benefit specified in the Income Tax Assessment Regulations 1997 (ITAR) that is paid from a superannuation income stream. The effect of the Douglas decision was that a significant portion of the applicant’s invalidity pension (MSBS pension) became tax free which was confirmed by the ATO issuing a Notice of Amended Assessments to the applicant for 30 June 2020 financial year. Prior to the decision in Douglas the applicant’s MSBS pension on the applicant’s Notice of Assessment included two components a taxed component and an untaxed component. Following Douglas the MSBS pension included a further component namely a tax free component.
Applicant’s argument
The applicant contends that in calculating the applicant’s taxable income using an average gross weekly income amount contained in his statement of financial circumstances the Tribunal failed to take into account the nature of that income and the fact that some parts were taxed, untaxed and/or tax free. As a result of the decision in Douglas the applicant’s invalidity pension (MSBS pension) amount that formed part of the “adjusted taxable income” (ATI) would have been significantly reduced as it contained an amount of “untaxed income” which the Child Support (Assessment) Act 1989 does not regard as forming part of the ATI. The applicant contends that both payments being the applicant’s DVA pension[23] which is tax exempt and the applicant’s MSBS pension (taxed, untaxed and tax free) were included by the Tribunal in its assessment and decision with the result that the total amount of income for the 2020/2021 financial year for the applicant was calculated at $173,707.[24]
[23] Disability Compensation Payment
[24] Decision [47]
The applicant argued that pursuant to section 43 of the Act a parents ATI includes the parent’s taxable income together with the total tax free pensions or benefits received by that parent in the year of income. A “tax free pension or benefit” is defined in subsection 5 (1) of the Assessment Act and does not include the applicant’s MSBS pension which is established by the Military Superannuation and Benefits Act1991 (Cth). As such the Tribunal wrongly included a tax free component of $62,020 the latter amount the result of the Court’s determination in Douglas. The applicant contends that the failure of the Tribunal to consider or give effect to the decision in Douglas caused the Tribunal to artificially increase the applicant’s ATI by including untaxed amounts where they should not have been included pursuant to the Assessment Act.
On 1 January 2022 the applicant’s DVA pension changed to a Disability Compensation Payment that change occurring after the hearing in April 2021. The effect of the change as contended for by the applicant was that the payment was brought outside the scope of a “tax free pension or benefit” as defined under subsection 5 (1) of the Assessment Act and should not have been included with the applicant’s ATI assessment and therefore the Tribunal was in error in adding the whole of the amount received by the applicant by way of a disability compensation payment (DVA pension) to his income. It was conceded by the applicant however that the Tribunal was entitled to treat the DVA pension as a financial resource available to the applicant for child support purposes.
The applicant contends he was denied procedural fairness in that the Tribunal should have made him aware of the decision in Douglas and the impact of that decision on how taxable income for child support purposes should be calculated. Further he contends the Tribunal failed to provide adequate reasons.
Second respondent’s argument
The second respondent acknowledged that the decision in Douglas was relevant on the basis that the applicant receives an invalidity pension under the Military Superannuation and Benefits Act1991 (Cth) (MSBS pension) and a Department of Veteran’s Affairs (DVA) pension[25] under the Military Rehabilitation and Compensation Act2004 (Cth). The decision in Douglas had the effect that the applicant’s invalidity pension was assessed to have a tax free component under the Income Tax Assessment Act 1997 (Cth). Counsel for the Registrar conceded that in circumstances where the decision in Douglas had the effect that the invalidity pension “was tax free” under the Income Tax Assessment Act 1997 (Cth) the Tribunal made an error “or mistake” of law.[26]
[25] Now referred to as a Disability Compensation Payment
[26] Child Support Registrar’s Outline of Submissions filed 19 May 2022 [5]
Notwithstanding that the Tribunal failed to consider the decision in Douglas the second respondent contends that in assessing the applicant’s income the Tribunal treated both his invalidity pension (MSBS pension) and his DVA pension as financial resources available to the applicant.[27] In doing so the Tribunal assessed the gross amounts of the invalidity pension and the DVA pension combining those figures.
[27] Decision [43] – [45]
Counsel for the Registrar argued that in making the assessment the Tribunal “considered it reasonable to assess the applicant’s income and financial resources available to him for child support purposes for the 2020/2021 financial year as equating to annual income of $173,707 [28] and that “the combined amount available to the applicant for child support purposes was a combination of income and a financial resource with respect to the DVA pension of $35,023.” Though the Tribunal referred at one point to “an annual income of $173,707” on several occasions the Tribunal indicated it took into consideration the applicant’s combined taxable income of $138,684 and financial resource of $35,023 in determining the amount available to the applicant for child support purposes.”[29] Ultimately for the purposes of determining child support the Tribunal was satisfied that the decision made was just and equitable and otherwise proper.
[28] Decision [44] – [45]
[29] Decision [47]
The second respondent contends that the decision in Douglas was irrelevant to the Tribunal’s decision under sections 98C, 98S and 117 (2) (c) (ai) the effect of the decision being that part of the applicant’s income that was previously taxable became tax free. As indicated by Halligan FM in Agrippa & Horton (SSAT Appeal) [2010] FMCAfam 1144 at [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”
Counsel for the Registrar contends that notwithstanding the Tribunal’s failure to consider the decision in Douglas the Tribunal’s decision should not be set aside. It was argued that the mistake about whether the invalidity pension was tax free or a component of the pension was tax free is “an immaterial error once the Tribunal’s statutory function under section 98C of the Assessment Act is properly understood. “
First respondent’s argument
The first respondent argued that the applicant was aware from January 2021 that a decision was made by the Court that may have favourably affected his pension entitlements and failed to raise that as an issue before the Tribunal. He was aware that a decision had been made that created for him a financial advantage not a financial disadvantage and as such “the merits of the appeal concerning that issue are doubtful.”
Counsel for the first respondent contends that the applicant’s appeal has been issued for a purpose other than the decision maker’s determination and the applicant has been “motivated to search for grounds of appeal because the valuable taxation refunds were intercepted and conveyed to the first respondent.”
Further Counsel argued that leave should be refused because the applicant was aware that there was a decision which may have impacted upon him favourably but took no action. He received correspondence that a significant portion of his MSBS pension would be tax free and failed to raise that issue with the decision maker. He was on notice that the Tribunal was seeking further information regarding the DVA pension and whether that pension was a tax free prescribed pension. Though the applicant responded to that issue he failed to raise the issue of the changes to his MSBS pension.
Discussion
Part 6A of the Child Support (Assessment) Act1989 (Cth) provides a process whereby both the liable parent and a carer may apply to the child support registrar for a departure from an administrative assessment of child support. The purpose of Part 6A of the Assessment Act is to provide a mechanism for departure from administrative assessment to ensure that children receive a “proper level of financial support from each of their parents” where a parent is found to have a capacity to provide that financial support.
Section 117 (1) (a) of the Assessment Act provides that “where an application is made to a court in relation to a child in the special circumstances of the case” and (b) (i) “the court is satisfied that one or more of the grounds for departure mentioned in subsection (2) exists” and (b) (ii) (A) “that it would just and equitable as regards the child, the carer entitled to child support and the liable parent” and (b) (ii) (B) “otherwise proper to make a particular order the Court may make the order.”
Section 98C of the Assessment Act provides that the Tribunal may determine to depart from an administrative assessment of child support if satisfied that in the special circumstances of the case:
(a)A ground of departure exists (s98 (1) (b) (i), (2), s 117 (2));
(b)It would be just and equitable as regards relevantly the child and liable parent (s98 (1) (b) (ii), (A); and
(c)Otherwise proper (s98 (1) (b) (ii), (B).
Once a ground for departure is established the Tribunal has a broad discretion to make a determination under section 98S subject only to what is just and equitable and otherwise proper. The only relevant ground in light of the Douglas decision is subsection 117 (2) (c ) (ia) - whether
in the special circumstances of the case the 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… (b) because of the income, property and financial resources of either parent…
The Tribunal considered whether special circumstances existed to depart from the level of financial support to be provided by the applicant for the children because of the income, property and financial resources of either parent and undertook an extensive assessment of the parties respective incomes, property and financial resources[30] and was satisfied finding that the first respondent’s taxable income and financial resources for 2019/2020 financial year equated to an income of $71,961 and her taxable income for 2020/2021 based on payslips for the year 1 March 2021 approximately $71,653 (annualised). The Tribunal rejected the applicant’s assertion that there had been a diminution in her income as a result of a changed work pattern.[31]
[30] Decision [15] – [55] and [63] – [86]
[31] Decision [51] – [53]
It’s the applicant’s contention that the Tribunal erred in taking into account the tax free component of the applicant’s MSBS pension[32] in reliance on section 43 of the Assessment Act. The Registrar argued there is nothing in sections 98C, 98S or s117 (2) (c ) that mandates the consideration of the applicant’s adjusted taxable income by reference to section 43 of the Assessment Act. To apply the same test to the word “income” as to “adjusted taxable income” in section 43 is not only contrary to the purpose of the provisions directed to departure determinations but also ignores the express provision of the statute which requires the Tribunal to consider “income” whether “taxable” or “tax free.”
[32] Not included as a tax free pension or benefit under section 5 (1) of the Assessment Act
As indicated the principle object of the Assessment Act is to ensure that children receive a proper level of financial support from their parents (s.4 (1) Assessment Act). Subsection 4(2) of the Act provides:
(a)That the level of financial support to be provided by parents for their children is determined according to their capacity to provide financial support and, in particular, that parents with a like capacity to provide financial support for their children should provide like amounts of financial support; and
(b)That the level of financial support to be provided by parents for their children should be determined in accordance with the costs of the children; and
(c)That persons who provide ongoing daily care for children should be able to have the level of financial support to be provided for the children readily determined without the need to resort to court proceedings; and
(d)That children share in changes in the standard of living of both their parents, whether or not they are living with both or either of them; and
In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] the High Court discussed the principles that apply to statutory construction (citations omitted) and said:
[69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed.
[70] A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
[71] Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent.
The drafting of section 117 (2) (c) (ia) is deliberate as elsewhere in the Assessment Act at sections 43, 56 – 58A reference is made to “taxable income” where the taxation treatment of the income is intended to be captured in the child support assessment. Under section 117 (2) (c) (ia) of the Assessment Act there is no definition of “income” and “financial resources.” Giving the word “income” its ordinary meaning the Macquarie Dictionary defines “income” as “the returns that come in periodically, especially annually, from one's work, property, business, etc.; revenue; receipts.” The definition is similar in the Oxford Dictionary which defines “income” as “the money or other assets received, especially periodically or in a year, from one’s business, lands, works, investments, etc.” Had the legislature intended that under section 117 (2) (c) (ia) “income” was restricted to “adjusted taxable income” as defined in section 43 of the Act those words would have been used.
I am satisfied that it was open to the Tribunal to consider the liable parent’s “tax free income” under the ground of departure set out in subsection 117 (2) (c ) (ia) which refers to the “income” and “financial resources” available to the either parent. Had the legislature intended the assessment be confined to “taxable income” or “taxable financial resources” then the provision would have been drafted in those terms.
Even if “income” was limited to “taxable income” the term “financial resources” is broad enough to include an amount of a tax free pension for the purposes of subsection 117 (2) (c ) (ia). The applicant conceded that the applicant’s “tax free” DVA pension or “income” was capable of being treated as a financial resource available to the applicant for child support purposes. Similarly the “tax free” component of the MSBS pension could also be considered a financial resource available to the applicant for child support purposes. However the Tribunal was not made aware that as a result of the decision in Douglas part of the applicant’s invalidity pension was now tax free. No reason was advanced by the applicant why the Tribunal could not treat any tax free component of the applicant’s invalidity pension as a financial resource.
I find it was open to the Tribunal under section 117 (2) (c ) (ia) when determining the “income” and “financial resources” available to the applicant for child support purposes to include the applicant’s taxable income and tax free income and conclude that the “combination of taxable income and financial resources” amounted to a “combined taxable income and financial resources of $171,886” such that the applicant had the financial capacity based on funds available to him to provide a proper level of support for the children.
In VXQB v Child Support Registrar [2021] FCA 48 at [54] Colvin J said “……the review provided for by section 44 of the AAT Act is confined to review on the basis of an error of law. The relief that may be granted as an error of law is determined by the terms of the statute that confer the right of appeal, an appeal always being a creature of statute. Errors of law which are “harmless” or trivial” do not normally warrant the setting aside of an administrative decision in the exercise of a statutory power of the kind conferred in respect of an appeal under subsection 44 (1): Tankey v Adams [2000] FCA 1089. An immaterial error of law will not vitiate a Tribunal’s decision where review is sought under subsection 44 (1): Scaffolding Pty Limited v Commissioner of Taxation [2009] FCAFC 75 at [35] (Emmet, Kenny and McKerracher JJ) applying BTR plc v Westinghouse Brake & Signal Co (Aust) Ltd (1992) 34 FCR 246 at 253 – 254 (Lockhart and Hill JJ).
In Commissioner of Taxation v Ross [2021] FCA 766 at [338] Derrington J in reference to judicial review of a decision of the Tribunal noted that “the Court would retain a discretion not to set aside an order of the Tribunal despite it being established that a denial of procedural fairness had occurred where it had been shown that the denial did not deprive the applicant of the chance of a successful outcome: see the cases collected in Baig v Minister for Immigration and Multicultural Affairs [2002] FCA 380 [34] and more recently the development of materiality as a necessary element of jurisdictional error in the decision of the High Court in MZAPC v Minister for Immigration and Border Protection [2012] HCA 17. Similar considerations would necessarily apply in relation to the nature of the relief which might be granted on an appeal on a question of law under section 44 of the AAT Act.”
In Comcare v Kemp [2020] FCA 865 at [82] Perry J discussed the Court’s exercise of its discretion in a case involving a hearing impairment claim under Comcare and said “even if the Tribunal overlooked the issue, relief should be refused in the exercise of discretion on the ground that it would serve no useful purpose as the result would inevitably be the same.”
Was the Tribunal’s failure to consider the decision in Douglas material to the Tribunal’s assessment of the applicant’s adjusted taxable income?
The decision in Douglas had the effect of providing to the applicant with respect to his invalidity pension a proportion of income that was no longer subject to tax. As a result of the decision in Douglas the applicant had more money available to him from his invalidity pension not less. The whole of the applicant’s invalidity pension (including the taxed, untaxed and tax free components) were taken into account by the Tribunal when setting the applicant’s adjusted taxable income.
The Tribunal considered the applicant’s gross income to be relevant to the assessment of what is a just and equitable outcome.[33] It is unclear on what basis the applicant could seek to contribute less in child support when he had more funds available to him.
[33] Decision [73]
The Tribunal weighed all the evidence and determined that it was just and equitable in the circumstances to include the whole of the income and financial resources of the applicant that were available for child support purposes. The fact that the Tribunal did not appreciate that the applicant’s invalidity pension had a tax free component did not materially affect the Tribunal’s decision to take into account the actual amount received by the applicant whether that be as income or as a financial resource because those amounts still comprised the income and financial resources available to the applicant. Given the concession made by the applicant regarding the treatment of the DVA pension as a financial resource whether the applicant’s invalidity pension was “tax free” or had a tax free component was “immaterial” to the statutory function the Tribunal performed under section 98C of the Assessment Act. I am not satisfied that had the Tribunal been aware of the decision in Douglas it would have exercised its discretion differently.
In Yip v Wreford (2015) 52 Fam LR 159 at [59] May, Thackray and Strickland JJ said there were no limits contained in the statute on the exercise of the power in section 98S save that the determination must be just and equitable and otherwise proper. The Tribunal’s analysis under section 98S was based on the gross amount of money actually received by the applicant available for child support purposes rather than the tax treatment of his income. In Yip (supra) at [73] the Court noted that the Assessment Act allows for a “variation of adjusted taxable income with no reference to what might be assessed as taxable income by the ATO.”
With respect to the applicant’s contention that he was denied procedural fairness given he was self - represented and the Tribunal should have brought to his attention the existence of the decision in Douglas and informed him of the impact of that decision I am not satisfied that the omission was unfair as I am not satisfied that had the information been available to the Tribunal that part of the applicant’s invalidity pension was now “tax free” that would have made any difference to the Tribunal’s determination. Section 98H (1) (b) of the Assessment Act provides that the Tribunal was not required to conduct an inquiry or investigation into case law that may have assisted the applicant. No unfairness is apparent in the Tribunal performing its function in accordance with the Assessment Act.
Conclusion
No issue was taken with the Tribunal’s assessment that the first respondent’s taxable income and financial resources available to her for child support purposes for the year 2019/2020 financial year equate to an income of approximately $71,961 and her taxable income for the 2020/2021 financial year will be approximately $71,653.
Though the Tribunal erred in law in failing to consider that the decision in Douglas impacted on the applicant’s invalidity pension such that it resulted in a component of that pension being determined to be “tax free” in exercising my discretion I decline to set aside the Tribunal’s decision. I am not satisfied that any failure on the part of the Tribunal to consider the decision in Douglas materially affected the Tribunal’s determination of the income and financial resources available to the applicant for child support purposes which he determined for the year 2019/2020 financial year equated to an income of approximately $171,886 and an income of approximately $173,707 for the 2020/2021 financial year.
I find no error in the Tribunal’s decision to depart from the administrative assessment and am satisfied that the decision made was just and equitable and otherwise proper.
I am not satisfied that a substantial injustice would result if leave was refused and thus leave to extend time is refused.
The appeal with respect grounds of appeal 1 (a), 1 (c ), 1 (d), 1 (e ), 3 (d) (i), 4 (a), 4 (b), 5 (a) and 6 (a) is dismissed.
Questions of law 1, 5 (a) – 5 (d), 6 (a) (i) and (ii), 6 (b) (i), (ii) and (iii) 6 (c ) (i), (ii) and (iii), 7 (a) – 7 (d) and proposed 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 ), 5 (b), 5 (c), 5 (d), 6 (b), 6 (c ), 6 (d)
DVA education allowances
The applicant contends that the Tribunal erred with respect to the treatment of the DVA Education Allowances that the applicant was entitled to receive through Veteran’s Children’s Education Scheme (VCES) which is a payment designed to assist veterans in paying education expenses for the children. He argued that the Tribunal failed to take into account that the DVA education allowance was a contribution by him by virtue of the fact that the receipt of the allowance was based on his military service. He argued that the Tribunal erred in including the DVA amounts in the applicant’s ATI assessment and the inclusion of those amounts artificially increased the applicant’s ATI and impacted on the calculation of the child support payable by the applicant.
To advance this argument the applicant sought to adduce evidence not available before the Tribunal challenging the Tribunal’s finding of facts. I declined to admit further evidence on the issue save for the transcript of the proceedings before the Tribunal.
Apportionment of school fees
The applicant argued that the Tribunal erred in finding that the liability for private school fees ought to be apportioned between the parties because there was no mutual intention of the parties concerning private schooling as at the date of the hearing, the applicant had withdrawn financial support for private schooling and the respondent accepted liability for ongoing private school fees through her conduct and the applicant’s financial circumstances had significantly changed since separation resulting in him no longer being able to afford to contribute towards private school fees. He claimed he was denied procedural fairness with respect to that issue.
He argued that if it is accepted that the parties agreed to enrol the children in the D School and the applicant continued to contribute towards the school fees for a period he did so only until he could no longer afford to do so. He argued there was a previous agreement that the applicant would continue to pay school fees until 31 December 2019 as child support however the respondent subsequently applied for child support through the child support agency. At the commencement of the school year the applicant contacted the principal to inform him he could no longer pay school fees and notified the first respondent’s lawyer. Again the applicant sought to challenge the Tribunal’s findings of fact on the issue of school fees.
In his submissions at [73] – [77] the applicant conceded that the issue of school fees was agitated at the hearing in April 2021 as follows:
(a)That the applicant made some limited contribution towards schools fees in the first semester of 2020 and the school determined the parents were eligible to receive the Covid19 bursary to bring their account to a nil balance at the conclusion of Term 2 2020;
(b)At the conclusion of Term 2 2020 the applicant informed the school that he was no longer able to continue to make any contribution to the school fees; and
(c)The first respondent was aware the applicant had withdrawn his name from the childrens’ enrolment.
The applicant argued in the alternative that the evidence before the Tribunal did not support the Tribunal’s conclusion and the amount that the parties are to contribute to private school fees should take into account bursaries received by the first respondent in reduction of the school fees and the amount the applicant is required to pay is reduced by the DVA education allowances received by the first respondent.
Second respondent’s argument
The second respondent contends that the applicant has failed to demonstrate any error on the part of the Tribunal with respect to the Tribunal’s determination of the DVA education allowances. Counsel for the Registrar argued that the DVA education allowance did not fall within the “income, property and financial resources of either parent.” The Tribunal made a finding of fact which is not the subject of an appeal under section 44AAA of the AAT Act that the DVA education allowance was “applied for the benefit of the children’s education expenses.” It was not a financial resource of either parent and it was not relevant to the ground of departure under section 117 (2) (c) (ia).
Counsel for the Registrar contends that the DVA education allowances were in fact considered by the Tribunal and having satisfied itself that a ground of departure was established the Tribunal was entitled to make any of the determination under section 98S including a variation of the annual rate of child support (s98S (1) (a)).
First respondent’s argument
The first respondent contends it is apparent from the transcript that school fees were part of the first respondent’s case the issue being raised with the Tribunal from the outset by the first respondent that the previous decision maker “got it wrong regarding school fees as the applicant claimed he had paid 100% of the school fees and her child support was reduced on the basis of that father paying 50% of the school fees.[34] The applicant addressed that contention during the hearing[35] and a lengthy exchange occurred between the parents and the Tribunal. No issue was raised before the Tribunal that the applicant was surprised by the application advanced about school fees but rather stated “I think the school fees are pretty straightforward.” The Tribunal undertook a careful analysis of the issues as they related to school fees[36] and apportioned the schools fees[37] providing both parties an opportunity to be heard on the approach the Tribunal intended to take.
[34] Transcript of Tribunal hearing 6 April 2021 p.3 - 5
[35] Transcript of Tribunal hearing 6 April 2021 p.8
[36] Decision [54] – [62]
[37] Decision [82] – [84]
Discussion
The applicant concedes that the parties had agreed previously to pay private school fees for the children.[38] As to whether the applicant accepted responsibility for meeting half the children’s education costs[39] during the hearing the Tribunal member inquired “is there any reason why I shouldn’t look at the apportionment of school fees for that particular period in the same light by taking into account whatever determination I make in relation to your respective incomes.” [40] The applicant did not oppose the Tribunal taking that course of action, nor did the applicant contest the Tribunal’s comment about that analysis. Further the Tribunal advised the applicant of an approach it intended to take regarding the assessment and the issue with respect to school fees and gave the applicant an opportunity to be heard in that regard.
[38] Applicant’s outline of submissions [59] and Decision [54]
[39] Decision [54]
[40] Transcript of Tribunal hearing 6 April 2021 p.20 ln 29
The transcript reveals that the issue of school fees was discussed at length during the Tribunal hearing and both parties advanced their respective positions. Those discussions included the applicant ceasing to pay the school fees and discussions about the Covid19 bursaries and the fact that the first respondent argued that the decision made by the previous decision maker regarding school fees was unfair. The applicant was given every opportunity to advance his case on that issue.
The applicant’s challenge to the findings of fact by the Tribunal are without merit. The Tribunal deducted the cost of the DVA education allowance from the children’s school fees to determine the actual amount of school fees payable by the parents.[41] The balance was then used to apportion an amount for school fees between the parents for the purpose of determining the annual rate of child support payable by the applicant.[42] No error is apparent in the approach taken by the Tribunal. The Tribunal took into account when considering whether the outcome with respect to the decision regarding school fees was just and equitable.[43]
[41] Decision [58] – [59] and [61]
[42] Decision [81]
[43] Decision [65]
There is no basis for the applicant’s contention that the Tribunal failed to include the bursaries received by the first respondent that reduced the school fees. The Tribunal took the bursaries into account before calculating the final figure of school fees for the 2021 school year that remained payable by the parents[44] in fact the bursaries were taken into account in favour of both parents when the Tribunal determined the total amount of school fees. [45]
[44] Decision [62]
[45] Decision [61] – [62]
In Mabry& Mabry & Anor (SSAT Appeal) [2010] FMCAfam 388 Reithmuller said at [78] to [80] regarding the approach to be taken by the Tribunal when considering the payment of school fees:
[78] …The first step is to determine whether the child is ‘being ... educated ... in the manner that was expected by his or her parents.’ The simplest method of proof of the parent’s expectations is to look to the past conduct of the parents, often evidenced by the child attending a particular school before separation. However, this is not the only method of proof of the expectations of the parents.
[79] Significantly, lack of agreement as to the specific school does not mean that the parents lack the expectation that the child will attend a private school of a particular category, for example a Catholic school. …
[80] Whether the fees can be met (and the proportions in which the parents must contribute), must be determined having regard to the parents’ actual financial positions, is a matter to consider under ‘just and equitable’.
Conclusion
None of the challenges raised by the application with respect to the DVA education allowance and/or school fees raises a question of law. The applicant has failed to establish that there was no evidence to support a finding of fact nor the making of an inference on this issue. On the contrary the reasons of the Tribunal support the conclusion that the findings of fact with respect to the DVA education allowance and apportionment of school fees are supported by the evidence as discussed above. Further regarding the applicant’s contention that as a result of a change in circumstances he was no longer able to afford to pay school fees in accordance with the Tribunal’s decision that contention is not supported by the evidence with respect to the applicant’s income and financial circumstances.[46] On the contrary as a result of the decision in Douglas the applicant had more funds available to him than before. 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 ), 5 (b), 5 (c), 5 (d), 6 (b), 6 (c ), 6 (d) is dismissed.
[46] Decision [43] – [45]
Was the applicant denied procedural fairness?
The applicant has failed to demonstrate that the Tribunal’s failure to consider the decision in Douglas and the impact of that decision had any material effect on the Tribunal’s assessment of the income and financial resources available to the applicant for child support purposes. Further the applicant failed to demonstrate any error on the part of the Tribunal regarding its apportionment of school fees as between the parties.
The first respondent contends that the Tribunal raised with the applicant an issue with respect to his DVA pension and whether that pension was a “tax free prescribed pension.” The first respondent contends it is apparent from the transcript that the applicant was aware there may have been a decision which favourably impacted on his invalidity pension but failed to make any inquiries about that at the same time providing further information to the Tribunal as requested regarding the status of his DVA pension. The applicant conceded that his DVA pension was assessable for the purposes of child support.[47]
[47] Decision [20]
The transcript reveals that the applicant was aware that the apportionment of school fees was an issue and was given full opportunity to address the Tribunal on that issue.
The fact that the applicant and the first respondent represented themselves at the Tribunal does not give rise to an obligation on the Tribunal to provide the parties’ with legal advice.[48] The transcript of proceedings supports a conclusion that both parties were given an opportunity to present their case and address issues in contention. I adopt the submission of Counsel for the Registrar that “unfairness requires more than a dissatisfaction with the Tribunal’s reasoning process.” No error is established.
[48] Re F: Litigant in person guidelines (2001) 161 FLR 189 at [215] – [216]
The applicant alleges that the decision was manifestly unreasonable or plainly unjust. I am not satisfied that the applicant has established that the decision of the Tribunal was a decision that no reasonable person could have arrived out. The Tribunal’s failure to consider the decision in Douglas did not materially affect the Tribunal’s assessment.
Adequacy of reasons
No error is apparent in the findings made by the Tribunal. I am satisfied that the Tribunal provided cogent reasons for determining that grounds for departure were established. I rely on the discussion above observing that the Tribunal considered the evidence presented by the parties, undertook a comprehensive and thorough analysis of the income and financial resources of the parties as detailed in the reasons for decision including a consideration of the DVA education allowance and bursaries and provided reasons for the Tribunal’s conclusions supported by the evidence as set out in the Tribunal’s decision dated 11 June 2021. No error has been established.
I certify that the preceding one hundred and fifteen (115) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Tonkin. Associate:
Dated: 5 September 2022
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