Marshall v Marshall

[2017] FCCA 1541

FEDERAL CIRCUIT COURT OF AUSTRALIA

MARSHALL v MARSHALL & ANOR [2017] FCCA 1541

Catchwords:
CHILD SUPPORT – Appeal from a decision of the AAT – four grounds of appeal set out by the applicant – no error of law shown – appeal dismissed.

Legislation:

Administrative Appeals Tribunal Act 1975, s.44AAA

Child Support (Assessment) Act 1989, ss.98S, 114

Cases cited:

Child Support Registrar & Crowley and Anor [2015] FamCAFC 76

Haritos v Commission of Taxation [2015] FCAFC 92

Scott & Child Support Registrar & Anor (SSAT Appeal) [2011] FMCAfam 1212

Applicant: MR MARSHALL

First Respondent: MS MARSHALL

Second Respondent: CHILD SUPPORT REGISTRAR

File Number: BRG 1138 of 2016

Judgment of: Judge Cassidy

Hearing date: 19 May 2017

Date of Last Submission: 19 May 2017

Delivered at: Brisbane

Delivered on: 12 July 2017

REPRESENTATION

The Applicant appeared in person

No appearance by the First Respondent

Solicitors for the Second Respondent: Mr C Bishop, Department of Human Services

ORDERS

1. That the Notice of Appeal filed by the Applicant on 7 December 2016 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Marshall v Marshall & Anor is approved pursuant to s.110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1138 of 2016

MR MARSHALL

Applicant

And

MS MARSHALL

First Respondent

CHILD SUPPORT REGISTRAR

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application filed by way of a Notice of Appeal on 7 December 2016 where the applicant seeks to appeal a decision of the Administrative Appeals Tribunal (‘the AAT’). That decision was made on 27 October 2016.

2. Any appeal from a decision of the AAT in relation to child support is an appeal on a question of law (s.44AAA of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’)).

3. The Notice of Appeal sets out the grounds of appeal. The applicant’s question of law is:

   “Whether the Tribunal erred in deciding that the Child Support payable by the Appellant should be varied by concluding (for the purposes of its Decision) that it should, on just and equitable grounds, vary the Appellant’s adjusted taxable income to a hypothetical sum of $64,000 rather than utilising the sum of about $55,000 which the Tribunal found to be the total of the applicant’s income and financial resources in the 2015/16 financial year.”

4. The applicant in his Notice of Appeal sets out four grounds of appeal:

   “[1] The Tribunal,  after having determined  on the facts  before it, that the Appellant had income and financial resources of “about $55,000” in the 2015/16 financial year, erred in law when concluding that the Appellant's income for the purposes of calculation of Child Support should be “grossed up” by having regard to the Appellant's net income after tax of $51,146 and the tax tables (applicable to that sum) to arrive at a hypothetical (adjusted) taxable income of $64,000.

   [2] The Tribunal erred in law by applying the hypothetical sum of $64,000 rather than the actual sum of about $55,000 as the basis for deciding that the Appellant's annual rate of Child Support should be varied.

   [3] The Tribunal erred in law in determining that it was “just and equitable” to vary the Appellant's adjusted taxable income to $64,000 for the period 1 September 2015 to 31 August 2018

   [4] The Tribunal  erred  in law  in failing  to decide  that  the Appellant's  gross  income  for  the  period 1 September 2015 to 31 August 2018 was the sum found to have been earned by the Appellant, namely about $55,000.”

The Material

1. The Applicant relied upon the following material:

   a)The Notice of Appeal filed on 7 December 2016; and

   b)Outline of Argument filed on 15 December 2016;

2. The Second Respondent relied upon the following material:

   a)Submissions filed on 12 May 2017.

Background

1. The applicant and the first respondent are the parents of X, who was born in (omitted) 2002. There is another child of the relationship, A, who is now an adult. The father sought to review a decision by the child support agency in relation to the amount of child support assessed as payable by him to the mother for X. That review ultimately occurred in the AAT.

The Law

1. Appeals from the AAT are limited to an appeal ‘on a question of law’. I accept that the question of law must be stated with particularity (Haritos v Commission of Taxation [2015] FCAFC 92 at 97). I also accept that there is a statutory requirement placed on the Federal Circuit Court to not proceed with undue formality.

2. In Child Support Registrar & Crowley and Anor [2015] FamCAFC 76 the Full Court of the Family Court stated at paragraphs 22-24:

   “[22] … Appeals from the Tribunal to, relevantly, the FCCA lie only on a question of law (s 110B of the Registration Act).

   …

   [24] A consequence of the confined nature of appeals from the Tribunal to the FCCA is a requirement that the grounds of appeal to that court be drawn with particular precision and with a precision which bears that restriction firmly in mind.”

3. Paragraph 25 of the submissions of the Child Support Registrar (‘the Registrar’) filed on 12 May 2017 summarises the principles that emerge from the authorities in child support appeals:

   “[25] As to the principles that emerge from the authorities in child support appeals the Full Court of the Family Court in Child Support Registrar & Crabbe and Anor [2014] FamCAFC 10 provided the following relevant summary:

   - 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).

   - 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).

   - Section103X(3)(b) of the Collection Act (by analogy with s430 of the Migration Act) requires the SSAT 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).”

Decision of the AAT

1. The summary of the Reasons for Decision set out in paragraphs 10 through to 21 of the submissions filed by the Registrar on 12 May 2017 accurately summarise the AAT decision. I do not intend to repeat those here, but adopt them as part of my Reasons.

Grounds of Appeal

Grounds 1, 2 and 4 (The Applicant’s Income)

1. In the first ground the applicant argues that given that the AAT found the Applicant’s income and financial resources to be $55,000 the AAT was bound to apply that figure when making the decision to vary his adjusted taxable income.

2. I note that subject to the eighteen-month rule where the decision maker may only make a determination in respect of a day in the child support period, being a day that is eighteen months earlier than a particular event (s.98S(3B) of the Child Support (Assessment) Act, 1989 (‘the Assessment Act’). Section 98S(1) of the Assessment Act provides for a decision maker to make a determination varying the parents child support income, something that was done in the present case. There was a ground for departure established.

3. In the applicant’s case the AAT found that it would be just and equitable and otherwise proper to set his adjusted taxable income to an amount equivalent to that earned by any other tax payer who received a nett income of $51,146 after tax. In doing so, the decision maker fulfilled its statutory duty to have regard to the factors under s.117(4) and (5) of the Assessment Act.

4. I accept the submission of the Registrar that the ground must therefore fail.

5. Similarly, grounds 2 and 4 assert that the AAT erred in law by applying the hypothetical sum of $64,000 rather than the actual sum of $55,000 as a basis to vary the applicant’s annual child support.

6. I accept that these grounds argue the same proposition as ground 1 and must fail for the same reasons.

Ground 3 (Just and Equitable Issue)

1. In Scott & Child Support Registrar & Anor (SSAT Appeal) [2011] FMCAfam 1212 at [38] the finding that a particular departure determination is just and equitable is one of fact and not law. As a consequence of that it is not able to be appealed and for that reason this ground must fail as well.

Conclusion

1. The applicant has failed to identify an error of law in the decision of the AAT and therefore his appeal must be dismissed.

Orders Sought

1. I note that if I was able to find an error of law the applicant sought for this Court to vary the adjusted taxable income and set it at a figure of $55,000, I accept the submissions of the Registrar if I had made I finding that there was a question of law that was identified and established, that it would be appropriate to remit the proceedings for consideration by the AAT in accordance with the Reasons for Judgment (Osland v Secretary to the Department of Justice (2010) 241 CLR 320, 332-333 at [20]).

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Cassidy

Date: 12 July 2017.