Nichol v Emerson

Case [2020] FCCA 1870


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
Repatriation Act 1920 (Cth), s.107VZZH(1)

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
Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321
Brown v Repatriation Commission [1985] FCA 236
BVG17 v BVH17 (2019) 268 FCR 448

Child Support Registrar & Crabbe & Anor (2014) FLC ¶98–062
Ely v Ely & Anor [2019] FCCA 503
Haritos v Commissioner of Taxation (2015) 233 FCR 315
Jamal v Secretary, Department of Social Services [2017] FCA 916
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
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Sharma v LGSS Pty Ltd [2018] FCA 167
Westrupp v BIS Industries Limited (2015) 238 FCR 354

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

  1. The applicant’s Amended Notice of Appeal (Child Support) filed on 13 November 2019 be dismissed.

  2. 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

  1. 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. 

  2. 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…

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Details
AGLC
Nichol v Emerson [2020] FCCA 1870
Case
[2020] FCCA 1870
Decision Date

CaseChat Overview and Summary

This matter came before Judge Jarrett concerning an appeal by the applicant against a decision related to child support legislation. The second respondent sought the dismissal of the applicant's Amended Notice of Appeal (Child Support) filed on 13 November 2019.

The central legal issue before the court was whether the applicant's appeal raised a question of law, as required for the court to exercise its jurisdiction. This involved determining the nature of the grounds of appeal and whether they constituted a genuine question of law or were primarily questions of fact.

The court's reasoning, drawing on established jurisprudence regarding appeals on questions of law, particularly from administrative tribunals, emphasised that such appeals are confined to questions of law. The court noted that the substance of the appeal, rather than its form, is paramount. In assessing whether an appeal is on a question of law, the court must consider the notice of appeal, the alleged questions of law, the grounds raised, the relevant statutory context, and the reasons provided by the original decision-maker. The court concluded that the applicant's appeal did not present a question of law.

Consequently, the court ordered that the applicant's Amended Notice of Appeal (Child Support) filed on 13 November 2019 be dismissed. The applicant was also ordered to pay the second respondent's costs of and incidental to the appeal, fixed at $7,200.

Orders

Orders of the court

1.

The applicant’s Amended Notice of Appeal (Child Support) filed on 13 November 2019 be dismissed.

2.

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 TribunalAppeal 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.

Ratio Decidendi

Legal Principle Established

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