Nichol v Emerson
[2020] FCCA 1870
•8 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NICHOL v EMERSON & ANOR | [2020] FCCA 1870 |
| Catchwords: FAMILY LAW – The Family Law Act 1975 (Cth) and related legislation – children – child support legislation – procedure relating to child support legislation – application |
| Legislation: Administrative Appeals Tribunal Act 1975 (Cth), ss.44(1), 44AAA, 44AAA(1) Child Support (Assessment) Act 1989 (Cth), ss.98C(1)(b)(ii), 117(2)(c)(ii) Child Support (Registration and Collection) Act 1988 (Cth), s.110B |
| Cases cited: Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 Aziz v Minister for Immigration & Anor [2019] FCA 1397 Berry v Commissioner of Taxation [2015] FCA 1244 Child Support Registrar & Crabbe & Anor (2014) FLC ¶98–062 |
| Applicant: | MR NICHOL |
| First Respondent: | MS EMERSON |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | PEG 348 of 2019 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 20 January 2020 |
| Date of Last Submission: | 20 January 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 8 July 2020 |
REPRESENTATION
| The Applicant appeared in person. |
| The First Respondent appeared in person. |
| Solicitors for the Second Respondent: | Sparke Helmore |
ORDERS
The applicant’s Amended Notice of Appeal (Child Support) filed on 13 November 2019 be dismissed.
The applicant pay the second respondent’s costs of and incidental to the Amended Notice of Appeal (Child Support) filed on 13 November 2019 fixed in the sum of $7,200.
IT IS NOTED that publication of this judgment under the pseudonym Nichol v Emerson & 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 348 of 2019
| MR NICHOL |
Applicant
And
| MS EMERSON |
First Respondent
| CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
The applicant and the first respondent were once married but their marriage relationship has come to an end and they have separated. Their marriage lasted about 17 years. They have two children, one 17 years of age and the other 15 years of age. For the purposes of the present proceedings the arrangements for the parenting of the children seem settled. So too, the parties have reached an agreement about the adjustment of their property interests. These proceedings concern child support.
On 31 July, 2019 the Administrative Appeals Tribunal (Social Services & Child Support Division) determined to vary an earlier decision of an objections officer that made a departure determination in respect of the child support obligations between these parties. The Tribunal made a departure order that provided:
a)for the period 26 July, 2018 to 31 December, 2019 the adjusted taxable income of the respondent was varied to $146,000;
b)for the period 1 November, 2018 to 31 December, 2019 the adjusted taxable income of the applicant was varied to $108,992;
c)for the period 26 July, 2018 to 31 December, 2018 the annual rate of child support payable by the applicant was increased by $7,154;
d)for the period 1 January, 2019 to 31 December, 2019 the annual rate of child support payable by the applicant was increased by $7,316; and
e)for each calendar year from 1 January, 2020 to 31 December, 2022 the applicant’s annual child support liability was increased by one half of the tuition fees and compulsory resource/subject levies as those listed in the annual fee statement issued by the school each year for X at B School.
The applicant now seeks to appeal that decision pursuant to s.44AAA of the Administrative Appeals Tribunal Act 1975 (Cth). The respondent opposes the appeal, as does the Child Support Registrar.
An appeal under s.44AAA of the AAT Act is not strictly an appeal, but an application in this Court’s original jurisdiction: BVG17 v BVH17 (2019) 268 FCR 448 at [3]. The application is limited to an appeal on a question of law. The submission for the second respondent referred me to Child Support Registrar & Crabbe & Anor (2014) FLC ¶98–062. That decision was made in relation the previous appeal regime that existed under s.110B of the Child Support (Registration and Collection) Act 1988. Under that legislation, just as for an appeal under s.44AAA of the AAT Act, an appeal from the then Social Security Appeals Tribunal was limited to an appeal “on a question of law”.
In Crabbe the Full Court of the Family Court of Australia explored what might amount to an error of law and the distinction between an error of law and an error of fact for the purposes of an appeal under the previous legislation. The Full Court did so by reference to Minister for Immigration and Multicultural Affairs v Al-Miahi (2001) 65 ALD 141, Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. The Full Court summarised the position as follows:
54. The following principles emerge from these authorities and have relevance to our decision as to whether the Federal Magistrate erred in his review of the SSAT decision in a manner which requires our intervention:
·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).
·Section 103X(3)(b) of the Registration and Collection Act (by analogy with s 430 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).
Whilst Crabbe deals with what might amount to an error of law, it did not deal with the significance of the appeal being on a question of law. The phrase question of law is not synonymous with error of law: Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515. In Haritos v Commissioner of Taxation (2015) 233 FCR 315 the Full Court said, at [92]:
We agree with Ryan J in [Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515] that merely to assert that the Tribunal erred in law in making a particular finding is not to state a question of law. We also agree with the later statement by Ryan J, at 527, that: “[I]t simply begs the question of law to commence it with the words ‘whether the Tribunal erred in law’. If the question, properly analysed, is not a question of law no amount of formulary like ‘erred in law’ or ‘was open as a matter of law’ can make it into a question of law.” (Emphasis added.) But this is not to say that it is impermissible to commence a question of law for the purposes of s 44 with the expression ‘whether the Tribunal erred in law’ if that is given sufficiently precise content by what follows.
See also Jamal v Secretary, Department of Social Services [2017] FCA 916 at [15]; Westrupp v BIS Industries Limited (2015) 238 FCR 354 at [15] and Berry v Commissioner of Taxation [2015] FCA 1244 at [25].
Appeals on a question of law appear in other Commonwealth statutes and has garnered its own jurisprudence. For example, a similar expression appears earlier in the AAT Act:
44 Appeals to Federal Court of Australia from decisions of the Tribunal
Appeal on question of law
(1) A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.
In the context of s.44(1) of the AAT Act, it is the question of law that is the subject matter of the appeal: Haritos (above) at [84] – [90]. Earlier instances of the same statutory formulation took the same approach: e.g., Brown v Repatriation Commission [1985] FCA 236 which was concerned with s.107VZZH(1) of the Repatriation Act 1920 (Cth).
In Haritos (above) the Full Court of the Federal Court of Australia (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ) said:
62. We now turn to consider the more general questions raised by the appeal in relation to s 44 of the AAT Act. In summary, our conclusions are as follows:
(1) The subject-matter of the Court’s jurisdiction under s 44 of the AAT Act is confined to a question or questions of law. The ambit of the appeal is confined to a question or questions of law.
(2) The statement of the question of law with sufficient precision is a matter of great importance to the efficient and effective hearing and determination of appeals from the Tribunal.
(3) The Court has jurisdiction to decide whether or not an appeal from the Tribunal is on a question of law. It also has power to grant a party leave to amend a notice of appeal from the Tribunal under s 44.
(4) Any requirements of drafting precision concerning the form of the question of law do not go to the existence of the jurisdiction conferred on the Court by s 44(3) to hear and determine appeals instituted in the Court in accordance with s 44(1), but to the exercise of that jurisdiction.
(5) In certain circumstances it may be preferable, as a matter of practice and procedure, to determine whether or not the appeal is on a question of law as part of the hearing of the appeal.
(6) Whether or not the appeal is on a question of law is to be approached as a matter of substance rather than form.
(7) A question of law within s 44 is not confined to jurisdictional error but extends to a non-jurisdictional question of law.
(8) The expression “may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal” in s 44 should not be read as if the words “pure” or “only” qualified “question of law”. Not all so-called “mixed questions of fact and law” stand outside an appeal on a question of law.
(9) In certain circumstances, a new question of law may be raised on appeal to a Full Court. The exercise of the Court’s discretion will be affected not only by Coulton v Holcombe [1986] HCA 33; 162 CLR 1 considerations, but also by considerations specific to the limited nature of the appeal from the Tribunal on a question of law, for example the consideration referred to by Gummow J in Federal Commissioner of Taxation v Raptis [1989] FCA 557; 89 ATC 4994 that there is difficulty in finding an “error of law” in the failure in the Tribunal to make a finding first urged in this Court.
(10) Earlier decisions of this Court to the extent to which they hold contrary to these conclusions, especially to conclusions (3), (4), (6) and (8), should not be followed to that extent and are overruled. Those cases include Birdseye v Australian Securities and Investments Commission [2003] FCA 232; 76 ALD 321, Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244, 133 FCR 290, Etheridge, HBF Health Funds and Hussain v Minister for Foreign Affairs [2008] FCAFC 128; 169 FCR 241.
…
[94]. In our opinion, the issue must be approached as one of substance. In cases of doubt, the Court should consider the notice of appeal, the alleged question or questions of law, the grounds raised, the statutory context, and the Tribunal’s reasons for its decision, and having considered all those matters, satisfy itself that there is in fact a question of law.
The Federal Court authorities referred to above have been decided in the context of the rules of that court which provide for a particular form to be utilised in such an appeal. Presently that is form 75. It requires the specification of the question or questions of law that are the subject of the appeal. It provides thereafter for specification of the grounds relied on in the application. These are two different matters and their relationship was addressed by Branson and Stone JJ in Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 where, speaking of the former Federal Court Rules, they observed at [18] (my emphasis):
In our view, O 53 r 3(2) discloses an intention that a question of law to be raised on an appeal from the Tribunal should be stated with precision as a pure question of law. It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal.
Although Birdseye was overruled in Haritos (as I have set out above), the ratio in Haritos says nothing about the emphasised sentence in the passage from Birdseye above. It continues to be applied. In Sharma v LGSS Pty Ltd [2018] FCA 167, Gleeson J observed at [30]:
The questions of law are to be stated separately from the grounds relied upon in support of the orders sought in the notice of appeal: P v Child Support Registrar [2013] FCA 1312 at [50] (“P”). In P at [51], Wigney J said:
The specification of the grounds relied upon in support of the orders sought should expose the links between the question of law, the circumstances of the particular case and the orders sought on the appeal: Birdseye [2003] FCAFC 232 at [17]-[18]. It is not legitimate to call in aid the grounds specified in the notice to read down the questions of law stated in the notice to what are truly questions of law. If the order sought is that the decision of the Tribunal be set aside, the grounds in support of that order should assume the resolution of the specified question of law in favour of the applicant and indicate, in a summary way, why that resolution requires the decision of the Tribunal to be set aside: Lambroglou at 524. Grounds drawn up in that way could not elucidate a question of law.
Given the similarity between the text of ss.44(1) and 44AAA(1) of the AAT Act, it is appropriate in my view to apply the principles that emerge from the cases I have referred to above when determining an application under s.44AAA(1) of the AAT Act. That is to say, the subject matter of the review is the question or questions of law identified by the applicant for review and which emerges from the processes and reasons of the administrative decision maker. The review is confined to the questions of law so identified. The question or questions identified in the review application need not be “pure” questions of law, but might be seen as mixed questions of law and fact. But a question of law must be involved. The statement of the question of law is important, but a failure to so state the questions in the application for review is not fatal. It is the substance of the application which is important. The form prescribed by the Federal Circuit Court Rules 2001 requires the specification of the question or questions of law raised in the review separate from the grounds of appeal. Observance of these matters ensures that the merits of a case are dealt with, not by the Court, but by the Tribunal.
The questions of law
The application first came before the Court on 30 October, 2019. On that day orders were made for the applicant to file any amended notice of appeal that he wished to file “seeking orders within the Courts (sic) jurisdiction and pleading a question or questions of law”.
Despite being put on notice the he was required to plead a question or questions of law, the questions of law stated in the applicant’s amended application filed on 13 November, 2019 are as follows:
1. The decision of the Administrative Appeals Tribunal dated 31 July 2019 contradicts and seeks to over-ride the terms of the Family Court Orders of Consent, file number; ... dated 26 July 2019, namely the agreed liability of Ms Emerson in respect of private school fees.
2. The decision of the Administrative Appeals Tribunal dated 31 July 2019 contains a fundamental mistake of fact in overstating income of Mr Nichol resulting in a detriment to his right to a fair hearing and a lack of procedural fairness.
3. The decision of the Administrative Appeals Tribunal dated 31 July 2019 failed to take into account the undisclosed actual financial capacity and assets of Ms Emerson including her intended purchase of the property at C Street, Suburb D on 18 August 2019.
These are not questions, let alone questions of law. Rather, they are statements about the Tribunal’s decision. But, as the applicant points out, in an appropriate case, the Court should entertain the prospect of framing questions in order to found its jurisdiction. In Haritos v Commissioner for Taxation (above) the Full Court said at [103]:
As a matter of the jurisdiction of the Court, we agree with the summary by Wigney J in P v Child Support Registrar [2013] FCA 1312; 138 ALD 563 at [53], which takes account of the position of self-represented litigants:
A question which is inelegantly drafted may nonetheless be a question of law which attracts the jurisdiction of this court if its purport is tolerably clear having regard to the context in which it appears: Ergon Energy Corp Ltd v Cmr of Taxation (2006) 153 FCR 551 at [51]. In an appropriate case the Court itself may be “prepared to frame questions in order to found its jurisdiction”: Secretary, Department of Education, Employment and Workplace Relations v Ergin (2010) 54 AAR 60 at [11]; 119 ALD 155 at 159; Rana at [16]; Goodricke v Comcare (2011) 55 AAR 188 at [14]–[22]; 122 ALD 546 at 549–550. An appropriate case may arise where, as here, an applicant is unrepresented and where it is possible to discern a question which, if properly framed, could found the jurisdiction of the Court: Hoe v Manningham City Council [2011] VSC 37 at [6]–[7]; Kolya v Tax Practitioners Board (2012) 87 ATR 474 (Kolya) at [8].
To understand the substance of the applicant’s complaints, it is necessary to have regard to the facts of the matter. They are conveniently and accurately summarised in the submissions made on behalf of the Child Support Registrar as follows (footnotes omitted, paragraph references are to the decision of the Tribunal dated 31 July, 2019):
7 The father and the first respondent (mother) are the parents of [two children, one aged 17 years and the other 15 years].
8 Child support was registered for assessment on 19 December 2017 and for collection by the Australian Government Department of Human Services (Department) from 8 August 2018.
9 On 26 July 2018, the father applied for a change of assessment on grounds that related to the mother’s income, property and financial resources ([3]). The mother cross-applied for a departure on grounds that related to the children’s private school tuition costs ([3]).
10 The challenged administrative assessments provided as follows:
A. For the period 16 July 2018 to 30 September 2018, the father was liable to pay an annual rate of child support of $22,850 (based on his 2016/17 adjusted taxable income (ATI) of $163,763 and the mother’s 2016/17 ATI of $58,559);
B. For the period 1 October 2018 to 31 December 2018, the father was liable to pay an annual rate of child support of $22,394 (based on his 2017/18 provisional income of $170,599 and the mother’s 2017/18 ATI of $65,946); and
C. The children being in the shared care of parents ([4]).
11 The competing change of assessment applications were resolved on 2 October 2018 (COA decision) as follows:
A. For the period 16 July 2018 to 31 October 2019, the ATI of the mother was varied to $146,398;
B. For the period 1 January 2018 to 31 December 2018, the annual rate of child support payable by the father was increased by $7,863; and
C. During the period 1 January 2019 to 31 December 2022, the father’s annual rate of child support liability was increased by one half of the tuition fees and compulsory resource/subject levies as those listed in the annual fee statement issued by the school each year for Y and X at B School, with amended assessments of child support to issue accordingly ([5]).
12 The father objected to the COA decision. On 27 February 2019, an objections officer allowed the objection and made a departure determination (objection decision) as follows:
A. For the period 26 July 2018 to 31 December 2019, the ATI of the mother was varied to $146,000;
B. For the period 26 July 2018 to 20 November 2018, the annual rate of child support payable by the father was increased by $7,154; and
C. For the period 21 November 2018 to 31 December 2019, the ATI of the father was varied to $108,992 ([7]).
13 On 17 March 2019 the mother applied for review of the objection decision in the Tribunal. She appears to have been primarily concerned with the fact that the father was no longer obliged to pay half of the children’s school fees as part of his assessed child support into the future.
14 On 31 July 2019 the parties attended a hearing before the Tribunal at which various documents were tendered by each party ([8]). The Tribunal’s decision was made on the day of the hearing and posted to the parties on 9 August 2019.
Tribunal’s reasons
15 Pursuant to s 98C of the Child Support (Assessment) Act 1989 (Cth) (the Assessment Act), the Tribunal’s decision correctly set out the following three questions ([13]):
A. Is there a ground to depart from the administrative assessment of child support;
B. Is it just and equitable to depart; and
C. Is it otherwise proper to depart.
Grounds for departure
16 The Tribunal recorded that s 117(2)(b)(ii) of the Assessment Act provided a ground for departure where, in the special circumstances of the case, the costs of maintaining the relevant child are significantly affected because the child is being cared for, educated or trained in the manner that was expected by their parents ([19]). In relation to this ground, the Tribunal found:
A. The children have attended a private school since primary school, and it was the intention of both parties for the children to remain at their current school until they finish their secondary education ([21]).
B. The total fees for both children (tuition and compulsory resource levies) were $14,308 in 2018 and $14,633 in 2019, and these fees significantly affect the costs of maintaining the children ([22]).
C. Although both parties are jointly liable for the fees, the father had not contributed to those fees for either the 2018 or 2019 school years. He contended that he could not afford to do so ([23]).
D. The mother contended that the father should contribute 50% of the school fees and his child support liability under the assessment should be adjusted to achieve that outcome ([24]).
17 The Tribunal concluded that the ground was established ([25]). It decided to consider whether either parent could afford to contribute to the school fees at the second stage of the enquiry ([25]-[26]).
Just and equitable to depart?
18 The Tribunal set out the factors in s 117(4) of the Assessment Act that must be considered when determining whether it is just and equitable to depart from an administrative assessment ([27]).
19 In relation to this issue, the Tribunal found:
A. Other than the private school costs, there were no extra costs to be taken into account in relation to the children’s needs ([28]).
B. The eldest child is working casually whilst completing her education but this income was not sufficient to affect the assessment ([29]).
C. The children did not have any income, property or financial resource that should be taken into account for child support purposes ([30]).
D. The Tribunal recorded that both parties agreed that the findings made in the objection decision were “an accurate reflection of their current incomes” ([31]). The one caveat to that agreement was the mother’s concern that the father’s income may increase once he ceases being on sick leave, but the Tribunal determined not to make a prospective determination about that issue ([31]).
E. At the time the change of assessment applications were made, the mother was living in the former matrimonial home and paying the mortgage and the father was in rented accommodation. Since then, family law property settlement orders had been made which provided for the mother to receive $374,000 in cash and the father to receive $150,000 in cash. The property settlement provided for the mother to receive more of the cash assets in exchange for the father retaining a greater portion of his superannuation ([33]-[34]).
20 The Tribunal then set out its proposed determination, which mirrored the decision it ultimately made ([35]). It then made the following comments in relation to that proposal:
A. Under the proposed determination, the father’s weekly child support liability would be $350 per week from 26 July 2018, which would be reduced to $271 per week from 21 November 2018 ([36]).
B. The Tribunal then made certain comments about the mother’s net weekly income and outgoings and future plans as to housing ([37]-[38]).
C. The Tribunal found that the father had the capacity to pay child support as assessed according to the income of both parents, together with the additional amount being one half of the children’s school fees ([40]).
D. The Tribunal found that the father’s pay advice indicated that his net weekly pay since the reduction in November 2018 was $1,521 ([39]). That figure was taken from the father’s payslip for the period 30 November 2018 through to 13 December 2018, which the father had given to the Department on 17 January 2019. The Tribunal then considered the father’s outgoings each week, namely, rent of $400, superannuation of $155, insurance premiums of $87, credit card payments of $150, and motor car repayments of $170.18. The Tribunal also recorded the father’s evidence that he may have a superannuation debt of $20,000, and his argument that the cash he received in the property settlement orders ($150,000) should not be taken into account for child support purposes as it is “money to set himself up again (e.g. purchase a new house)” ([39]).
21 The Tribunal found that the proposed determination was not likely to cause either party hardship given their income and liquid assets (from the property settlement) were more than adequate for their self-support needs and necessary commitments ([40]).
22 Accordingly, the Tribunal concluded that it was just and equitable for the parties to both contribute to the proper needs of the children, which included the private school fees ([40]).
Otherwise proper to depart?
23 The Tribunal set out the factors in s 117(5) of the CSA Act that must be considered when determining whether it was otherwise proper to depart from an administrative assessment ([41]).
24 The Tribunal found that it was otherwise proper to make the proposed determination in circumstances where the parties were not recipients of family assistance payments in respect of the children ([42]).
Summary and effect of Tribunal’s decision
25 In the result, the Tribunal varied the objection decision under review such that:
A. For the period 26 July 2018 to 31 December 2019, the adjusted taxable income of the mother was varied to $146,000 (Variation 1);
B. For the period 1 November 2018 to 31 December 2019, the adjusted taxable income of the father was varied to $108,992 (Variation 2);
C. For the period 26 July 2018 to 31 December 2018, the annual rate of child support payable by the father was increased by $7,154 (Variation 3);
D. For the period 1 January 2019 to 31 December 2019, the annual rate of child support payable by the father was increased by $7,316 (Variation 4);
E. For each calendar year from 1 January 2020 to 31 December 2022, the father’s annual rate of child support liability was increased by one half of the tuition fees and compulsory resource/subject levies as those listed in the annual fee statement issued by the school each year for X at B School (Variation 5).
26 Variations 1 and 2 appeared to have been designed to adopt the income figures for the parties determined in the objection decision; however, the adjustment to the father’s income by the Tribunal decision operates from 1 November 2018, whereas the adjustment made in the objection decision operates from 21 November 2018. This appears to have been a typographical error by the Tribunal. Nothing in the appeal turns on this issue.
27 Variation 3 increases the father’s child support by 50% of the agreed 2018 school fees figure, and Variation 4 operates in the same way for the agreed 2019 school fees figure ([22]). Variation 5 then operates to increase the father’s annual child support liability by 50% of X’s school fees until the end of 2022 (that being the year in which she is scheduled to complete year 12).
While the review application was pending before the Tribunal, the parties were also litigating their property adjustment dispute. They attended a mediation for that matter on 15 May, 2019. They reached an agreement about property adjustment and orders were made in the Family Court of Western Australia reflecting that agreement on 26 July, 2019. The intent of the orders appears to have been to divide the parties’ net property 55% to the respondent and 45% to the applicant.
Consideration
Question 1
In practical terms the applicant’s compliant under this ground is that whilst the Tribunal acknowledged the existence of the Family Court property adjustment orders, it did not give effect to them according to their terms when it made its departure orders. He claims that by failing “to apply or even consider them” the Tribunal “thereby errs by offending the existence of the Orders, failing the test of justice, equity and fairness under section 98C(1)(b)(ii) and section 117(2)(c)(ii) of the Act”.
Of the many grounds of appeal relied upon by the applicant in his notice of appeal, only one seems to be relevant to this question of law. By that ground of appeal the applicant alleges that the Tribunal’s decision “is ultra vires and inconsistent with Family Court Orders by Consent, in terms of the private school fee liability owned solely by [the respondent]”.
The applicant argues that “The Act provides no statutory power to over-turn, over-rule, change, modify, alter or otherwise disturb orders of the Family Court”. He points to “The Guides to Social Policy Law, Child Support Guide (CS Guide) at clause 2.6.11 Reason 5 - money, goods or property received by the child, the payee or a third person” where it provides:
Any transfer or settlement of property has to be looked at in relation to any order made by a court or any agreement between the parents regarding property. The Registrar will avoid undermining the property settlement or any related agreement entered into by the parents.
The applicant refers me to Ely v Ely & Anor [2019] FCCA 503. That case was an appeal against a decision of the Tribunal where the applicant’s child support income was set at $81,467 until the assessment for his 16-year-old child ended. In June, 2016 the parties had consent orders made under the Family Law Act whereby it was noted that the husband was shortly to receive $45,262.50 from a worker’s compensation claim and that he anticipated receiving $300,000 from a TPD insurance claim. It was ordered that each party retain “all interests in life, income protection, trauma protection and any other personal protection insurance policy” in their name and retain “all choses-in-action in which he or she is a party or potential party”. The Tribunal found that the applicant’s receipt of $46,497 of superannuation should be taken into account, and that his net TPD claim of about $300,000 was “intended to compensate the applicant for his inability to work and to replace income” which justified its decision.
The applicant relied on the Department’s policy outlined in the Guides to Social Policy Law, Child Support Guide which stated that “the Registrar will avoid undermining the property settlement or any related agreement entered into by the parents”. However, the Tribunal found that the applicant’s TPD payment was not a transfer of property in the property settlement.
The applicant was successful in his appeal on the basis that the Tribunal erred in finding that the husband’s TPD payment was not part of the transfer of property in the parties’ property settlement. The Tribunal found that the only direct reference to the TPD payment was in the Notations to the parties’ property adjustment order, but that finding was incorrect. According to the Court, the Tribunal failed to have regard to order 2 of the consent orders which provided that each party would retain their interests in insurance policies and choses in action. The court determined that the finding that the TPD payment was not part of the property settlement was wrong as a matter of law. The entitlement was clearly referred to in the order. A similar error was made in relation to the applicant’s superannuation. The Tribunal decision was set aside and the case remitted for rehearing.
However, this authority does not assist the applicant here. The Tribunal acknowledged the existence of the consent orders for property adjustment between the parties. I accept that contained within those orders was a schedule that set out the intended effect of the property adjustment orders. As the applicant submits, it set out an attribution of the assets and liabilities between the parties. I accept that the schedule shows that the first respondent is attributed with the liabilities for the private school fees that had accrued up to and were outstanding as at the date of the orders and the applicant is attributed with other liabilities that had accrued and were outstanding as at the date of the orders.
Order 12 provides for the respondent to indemnify the applicant in respect of, inter alia, all liabilities in her sole name and any liabilities associated with the assets to be retained by her pursuant to the orders. Order 12 (and order 16 for that matter) does not speak to the parties’ joint liabilities unless it is a liability which is associated with an asset to be retained by a particular party. Neither order, nor any other order set out in the consent orders deals with the parties’ joint liabilities that are not associated with an asset to be retained by one or other of them. School fees is an example of such a liability. The Tribunal found that “at hearing, both parties advised that they remain jointly liable for the private school costs”. That was indeed factually correct.
Nonetheless, that the Tribunal does not expressly recognise that the school fees were listed as a sole liability of the respondent in the schedule to the property settlement orders does not reveal error in the Tribunal’s decision. I reach that conclusion for two primary reasons. First, the schedule was not an operative part of the orders. The Court’s authority when making property adjustment orders is to make orders that adjusts the parties’ interests in their property. The schedule appears to have been an attempt to set out the intended effect of the orders, but it failed in that endeavor because the orders that effected the adjustment in the parties’ interests in their property provided for no indemnity in respect of joint debts in the event that one or other of the parties was to take on sole responsibility for a joint liability. Second, the orders of the Family Court of Western Australia remain operative. They have not been amended on the basis that they contain an error or a slip. They should be observed according to their terms. That does not mean that the joint liability for outstanding school fees should be seen as the sole responsibility of the respondent because the schedule is not an operative part of the order. It does no work. Third, the liability is in any event a joint liability and one for which each remained liable to the creditor having regard to the agreed facts before the Tribunal.
Moreover, statements of policy do not bind the Tribunal in its decision making. The policy applies to the Child Support Registrar. The matters that the Tribunal are to take into account are set out in the Acts and Regulations governing the Tribunal’s work. Whilst the Tribunal might have regard to Departmental or Ministerial policy, it is not bound to observe such policies.
A similar position exists in relation to the migration work undertaken by the Tribunal. In the migration arena the relevant department publishes a document known as the Procedures Advice Manual. It is referred to in the cases as PAM3. It contains policies that are said to be applied or observed by the Department when considering visa applications. However, those policies and procedures do not bind the Tribunal when conducting reviews of visa decisions. An example will help illustrate the point. In Aziz v Minister for Immigration & Anor [2019] FCA 1397, the Court said:
19 The FCC Judge noted that PAM3 is a guide to decision-making only and it is the facts of each case which must be assessed. Inferentially, the FCC Judge found (correctly) that PAM3 did not dictate that the Tribunal had to find that the appellant’s family connections were a positive factor, could legitimately have influenced her decision to study in Australia or did not provide a strong incentive for her to wish to stay in Australia. The FCC Judge also noted, correctly, that the weight to be given to any particular factor was a matter for the Tribunal: NAHI v Minister Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]; Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27] (French J).
20 In support of the Minister’s submission concerning the status of PAM3, counsel referred to El Ess v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1038; (2004) 142 FCR 43 in which Gray J said of the status of PAM3:
[45] … PAM3 is not a binding document. PAM3 is intended by its own terms to be nothing more than procedural and policy guidance to officers applying the Migration Act and the Migration Regulations. … PAM3 does not have the effect of a direction pursuant to s 499 of the Migration Act, which would bind a person or body having functions or powers under the Migration Act as to the performance of those functions or the exercise of those powers. Because the PAM3 guidelines are not binding on a decision-maker, they cannot be relevant considerations, in the sense of considerations that the decision-maker is bound by legislation to take into account. See Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 39 – 40 per Mason J, with whom Gibbs CJ and Dawson J agreed. A failure to apply the guidelines may have significance in establishing some error on the part of a decision-maker, but it is not of itself a jurisdictional error.
21 I take the same view.
22 Further, by virtue of s 499(2A) of the Migration Act 1958 (Cth) (the Act), the Tribunal was obliged to comply with Direction No.53 issued by the Minister concerning the assessment of the genuine temporary entrant criterion in applications for Student visas. That Direction stipulates that, in considering an applicant’s circumstances in their own home country, decision-makers must have regard to the extent of the applicant’s personal ties to their home country (for example, family, community and employment) and whether they would serve as a significant incentive to return to their home country (cl 9(b)) and that, in considering an applicant’s potential circumstances in Australia, decision-makers must have regard to the applicant’s ties with Australia, including family and community ties (cl 11a)), which would present a strong incentive for the applicant to remain in Australia.
23 Accordingly, the Tribunal member was not bound to have regard to, and to apply, the passage in PAM3 on which the appellant relied. Moreover, the Tribunal was positively bound to have regard to the appellant’s family ties with Australia which would provide a strong incentive to remain in Australia. In addition, the Tribunal was bound in the appellant’s case to have regard to the relative absence of her family ties in Pakistan.
The same approach is apposite in this case. The Tribunal is not bound by the Child Support Guide in its decision making.
This ground does not raise any arguable question of law.
Ground 2
By this “question” the applicant contends that the decision of the Tribunal contains a fundamental mistake of fact. In particular, he argues that it overstates his income “resulting in a detriment to his right to a fair hearing and a lack of procedural fairness”.
The grounds of appeal relevant to this question appear to be grounds 15 and 16. They provide as follows:
15. The decision includes a significant factual error at point 39. where it is stated that [the applicant’s] net weekly pay is $1,521.00.
16. The net weekly income of [the applicant] is $1,422.63. This mistake of fact presents a significant error in the decision of [the applicant’s] financial capacity.
The relevant finding of the Tribunal appears at paragraph 39 of its reasons:
39. [The applicant] provided an updated Statement of Financial Circumstances to the tribunal and [the respondent] during the hearing (folio B48-B57). His pay advices indicate that that his net weekly pay (since his reduction in November 2018) is $1,521. His weekly commitments are rent of $400 per week, superannuation contributions of $155 and health insurance premiums of $87.04. He indicated that he had a credit card debt of almost $8,000 for which he makes a minimum payment of $150 per week. [The applicant] told the tribunal that he had just entered into an agreement to purchase a motor vehicle for $49,900 (nil deposit) and will be liable for weekly repayments of $170.18. He said that he required a vehicle suitable for himself and his two children and his partner and her two children. He also indicated that he potentially has a superannuation debt of $20,000. In his view the $150,000 he will receive from settlement should not be taken into account for child support purposes as it is money to set himself up again (e.g. purchase a new home).
Although the second respondent submits that the Tribunal did not make a finding that the father’s net weekly pay was $1,521, I think that the better view is that it did. The purpose of the discussion in the paragraph I have just extracted was plainly to set out the applicant’s income and expenses. In doing so it recorded what it considered to be the applicant’s net income.
The second respondent submits that the Tribunal “simply recorded the content of one piece of evidence before the Tribunal in relation to the broader issue it was considering, namely, his financial circumstances and whether they provided him with capacity to pay child support under the proposed determination”. However, I do not accept this submission in full. I think it takes too broader view of what the Tribunal was required to do to complete its task.
However, assuming for the moment that the Tribunal’s decision is in error about the applicant’s net weekly income as he contends, it is a question of fact, not a question of law. A wrong finding of fact is not an error of law, nor is a finding of fact based on reasoning that is “demonstrably unsound” or on an “illogical course” or a “faulty process” of reasoning.
But, in any event, I do not accept that the Tribunal’s finding was an error. There was before the Tribunal at least three pay slips from the applicant. They are difficult documents to follow and there are some areas of redaction that make them difficult to understand. However, the last slip – the most recent provided to the Tribunal showed a net fortnightly pay of $3,042.73, or $1,521 per week as the Tribunal found. That amount was made up of two amounts paid to the applicant to give the total of $3,042.73. I was taken to nothing in the evidence to suggest that the receipt of that income would not be ongoing.
Thus, that there was some evidence upon which the tribunal could make its finding means that there is no error of law by the Tribunal. I reject the applicant’s argument that there was no evidence before the Tribunal upon which it could make the relevant finding. The weight to be afforded to the evidence upon which the tribunal relied in light of the other pay slips was a matter entirely for the Tribunal. As the second respondent submits, the weighing of evidence lies at the heart of merits review and it is not something upon which this Court can embark on this application.
Nor do I accept the applicant’s argument that by making this finding of fact in a way with which the applicant does not agree, he has been deprived of his right to a hearing and thus the Tribunal failed to accord him a fair hearing. He was afforded a hearing. He took the opportunity to put evidence before the Tribunal. I accept the second respondent’s submission that the fact that the Tribunal did not make the decision or the findings of fact that the applicant desired does not mean it failed to afford him procedural fairness.
There is no merit in the proposed second question of law.
Question 3
This ground centers upon the proposition that the respondent did not make full and frank disclosure of her financial position to the Tribunal before its decision and therefore, the Tribunal’s decision “failed to take into account the undisclosed actual financial capacity and assets of the respondent”. The focus of the applicant’s argument appears to be that the respondent purchased another home to live in soon after the Tribunal hearing but did not “disclose” that she intended to do so. He refers to some other matters as well.
The applicant recites the following matters in his grounds of appeal. To the extent that they are statements of fact and are not otherwise controverted by the respondent, I assume them to be true for the purposes of these reasons:
The Member received evidence during the [Tribunal] hearing that settlement of the former matrimonial residence … was to occur on 16 August 2019.
During the hearing [the mother] stated that upon settlement of the [the former matrimonial home] she was unsure where she and the children were going to live and that she was searching for a house to rent.
On 18 August 2019, [the mother] purchased the residential property located at [a specified address] for the sum of $825,000.00
The [former matrimonial home] settled on 19 August 2019, with the residual proceeds of that sale held in trust by [the mother’s lawyers].
The funds remain in that trust account as of 25 September 2019 with agreement on disbursement of those funds still to occur.
The [mother’s] offer to purchase the [property at the specified address] was not disclosed at the hearing and is contradictory with [her] statement during the hearing that she was unsure where she and the children were going to reside after settlement of the [former matrimonial home].
The decision fails to take into account the actual financial capacity, assets and property holdings of [the mother] which are significantly higher than those disclosed.
Whilst it is beyond doubt, I think, that the parties have an obligation in proceedings before the Tribunal to disclose truthfully their financial circumstances, there is nothing to which the applicant points that establishes that the respondent did not make proper disclosure of her financial position to the Tribunal or to the applicant. Assuming that a failure to make proper disclosure might somehow raise a question of law and might lead to the conclusion that the Tribunal’s decision ought to be set aside, in the present case, the argument fails for want of evidence.
An evidential onus rests upon the applicant to make out the factual matters upon which his argument relies. He does not discharge that onus. The chronology of events upon which he relies does not make out his case of non-disclosure. He argues that on 18 August, 2019 the respondent purchased a property for $825,000. There is no evidence before me that she did so. Moreover, there is no evidence that demonstrates whether, if she did indeed “purchase” a property, 19 August, 2019 was the contract date or the completion date for any contract of purchase. There is no evidence that she had made any offer to purchase a property at the time of the Tribunal hearing.
The respondent has not filed any evidence in the proceedings. She has filed written submissions in which she makes a number of factual assertions. In particular she says:
34. [The Applicant] stated I purchased a property at [address] on the 18th of August 2019, this is not correct.
35. My father [redacted] purchased the property I currently reside in on the 26th of August, (well after the hearing on the 31st of July) During his submission [the applicant] makes numerous references to myself not declaring this property, they are all incorrect, and in any case the property was fully purchased by my father.
36. My father currently has a full mortgage over the property. My father’s lawyer has drawn up and we have signed mortgage documents in relation to this property. They are in the process of being registered with E Land Authority.
37. My first mortgage payment to my father was made on the 18th November 2019, being a sum of $300,000.
Although I do not treat these statements as evidence, they demonstrate the danger in relying upon the applicant’s assertions. His case consists of assertion only, rather than any evidence that is probative of the facts that he wants to prove. There is assertion and counter-assertion and no evidence one way or another. Thus, even if I was persuaded that this aspect of the matter raised a question of law that invoked the jurisdiction of the Court (which I do not), it would nonetheless fail for want of proof.
There is no merit in the applicant’s proposed third question of law.
Other matters
The submissions delivered by the applicant in support of his application range beyond matters which might reasonably be seen as arising from the questions of law that he promulgates. None of them, in my view, give rise to arguable questions of law, but seek to engage with the merits of the Tribunal’s decision.
I accept the second respondent’s submission that (citations omitted):
48. The father’s submissions filed on 22 December 2019 (AS) commences with a lengthy series of factual statements under the headings of “introduction” and “background”. The evidential basis of those factual statements has not been identified, and for that reason it is not clear whether evidence proving those statements was before the Tribunal. Some of the factual statements (see AS[36]-[44]) post-date the Tribunal’s decision and appear to have been included in AS with a view to impugning the Tribunal’s decision. Any evidence that postdates the Tribunal’s decision cannot bear upon the correctness of the Tribunal’s decision in law, and such evidence is therefore not admissible (AIM15 v Minister for Immigration and Border Protection [2017] FCA 734 at [31] citing MZXHY v Minister for Immigration and Citizenship [2007] FCA 622 at [8]). It is not open to the father to rely on developments subsequent to the Tribunal’s decision to falsify the findings of the Tribunal (see ECJ17 v Minister for Home Affairs [2019] FCA 2121 at [66] citing NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [15]). This Court’s ability to make findings of fact in an appeal on a question of law under s 44AAA of the AAT Act is very limited and would not appear to be engaged in the circumstances of this case (s 44AAA(2)(a) and 44(7) of the AAT Act.
Conclusion
The appeal raises no questions of law, and in that sense it is incompetent. It must be dismissed.
The second respondent seeks his costs of the appeal fixed in the sum of $7,200 in accordance with Schedule 1, Part 2, Division 2, Item 3 of the Federal Circuit Court Rules 2001 (Cth). The applicant has been wholly unsuccessful. It is appropriate, having regard to that justifying circumstance, to order the applicant to pay the second respondent’s costs in the amount claimed.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 8 July 2020.
Associate:
Date: 8 July 2020
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