Oliver v Oliver
[2021] FCCA 965
•11 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Oliver v Oliver [2021] FCCA 965
File number(s): SYG 2969 of 2020 Judgment of: JUDGE MCNAB Date of judgment: 11 May 2021 Catchwords: ADMINISTRATIVE LAW – child support – appeal seeking judicial review of an Administrative Appeals Tribunal decision – matter transferred from Federal Court of Australia – six grounds of appeal, seven questions of law and five findings of fact on which the applicant asks the Court to make findings – submissions in support of appeal unclear and obscure – no legal error found – appeal dismissed. Legislation: Administrative Appeal Tribunal Act 1975 (Cth) ss 44, 44AA
Child Support (Assessment) Act 1989 (Cth) ss 98, 98C, 98S, 117
Child Support (Registration and Collection) Act 1988 (Cth) s 111C
Federal Court Rules 2011 (Cth) r 27.11B
Cases cited: Child Support Registrar & Crowley and Anor [2015] FamCAFC 76
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6
Number of paragraphs: 48 Date of last submission/s: 17 February 2021 Date of hearing: 19 February 2021 Place: Melbourne The Applicant: Appearing in Person The First Respondent: Appearing in Person Solicitor for the Second Respondent: Mills Oakley ORDERS
SYG 2969 of 2020 BETWEEN: MR OLIVER
Applicant
AND: MS OLIVER
First Respondent
CHILD SUPPORT REGISTRAR
Second Respondent
ORDER MADE BY:
JUDGE MCNAB
DATE OF ORDER:
11 MAY 2021
THE COURT ORDERS THAT:
1.The originating application filed on 10 September 2020 be dismissed.
2.The Applicant pay the Second Respondent’s costs fixed in the sum of $8,700.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Oliver v Oliver is approved pursuant to s.110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).
REASONS FOR JUDGMENT
JUDGE MCNAB:
INTRODUCTION
By an application filed on 10 September 2020, the Applicant appeals a decision of the Administrative Appeals Tribunal (“the AAT” or “the Tribunal”) made on 11 August 2020 in a child support matter (“the AAT decision”). The application was originally filed in the Federal Court of Australia pursuant to s44 of the Administrative Appeal Tribunal Act 1975 (Cth) (“the AAT Act”).
On 12 November 2020, the Applicant filed an interlocutory application in the Federal Court seeking various stay orders pursuant to s111C of the Child Support (Registration and Collection) Act 1988 (Cth).
On 22 December 2020, orders were made for the originating application and the interlocutory application to be transferred to this Court, pursuant to s44AA of the AAT Act and r27.11(b) of the Federal Court Rules 2011 (Cth).
The interlocutory application was heard on 20 January 2021 and was discontinued by consent. The originating application was heard on 19 February 2021, and judgment was reserved.
BACKGROUND
The Applicant and First Respondent are the separated parents of two children, born in 2006 and 2009 (“the children”). The parents separated in 2012, but lived under one roof until October 2018, when the Applicant moved out. The Child Support Registrar (“the Registrar” or “the Second Respondent”) issued administrative assessments of child support for the children, with the initial assessment taking effect from 26 March 2019.
The children are in the primary care of the First Respondent. Relevant to this application, the children currently attend a Grammar school (“the School”), a ‘non-public system’ school.
On 16 September 2019, the First Respondent lodged a change of assessment application, ultimately on the basis that:
(1)the costs of maintaining the children were significantly affected by the costs of caring for, educating or training the children; and
(2)the original assessment did not correctly reflect one or both parent’s income, property and/or financial resources.
Decision of the Child Support Registrar
On 12 December 2019, a delegate of the Registrar (“the delegate”) found that the grounds of the application were established and amended the child support assessment as follows:
(1)the Applicant’s adjusted taxable income (“ATI”) was set at $90,272 from 31 October 2019 until 31 December 2020;
(2)the annual rate of child support was increased by $6,242 from 1 January 2020 to 30 April 2020 in recognition of the children’s school fees;
(3)the annual rate of child support was increased by $12,484 from 1 May 2020 to 31 August 2020 in recognition of the children’s school fees; and
(4)the annual rate of child support was increased by $18,726 from 1 September 2020 to 31 December 2020 in recognition of the children’s school fees.
On 14 January 2020, the Applicant objected to the delegate’s decision. On 18 March 2020 an objections officer of the Registrar partly allowed the objection, and the decision of the delegate was set aside. The delegate’s decision was varied as follows:
(1)for the period 31 October 2019 to 31 December 2021, the Applicant’s ATI will be set at $94,177 per annum;
(2)for the period 25 February 2020 to 30 June 2020, the First Respondent’s ATI will be set at $154,588 per annum;
(3)for the period 1 January 2020 to 31 December 2020, the costs of the children will increase by $58,001 per annum; and
(4)for the period 1 January 2021 to 31 December 2021, the costs of the children will increase by $64,772 per annum.
Decision of the AAT
On 13 April 2020, the Applicant lodged an application with the AAT to review the decision of the Registrar.
On 11 August 2020, the AAT varied the decision under review so that the annual rate of child support payable by the Applicant was varied to $19,500 for the period 1 August 2020 to 31 December 2021.
The AAT’s decision addressed three questions pursuant to s98C of the Child Support (Assessment) Act 1989 (Cth) (“the Child Support Act”), those being:
(1)whether a ground for departure existed under s98C(2);
(2)if so, whether it would be just and equitable to make particular changes to the Registrar’s assessment; and
(3)if so; would it be otherwise proper to make those changes to the Registrar’s assessment.
In relation to whether there was a change of circumstances, the AAT noted at [14] – [15] of its decision that the Applicant gave evidence to the effect that he had only agreed that the children could attend the School on the basis that the First Respondent would pay the School’s fees. The First Respondent gave evidence that:
(1)while she could not recall having a specific conversation with the Applicant in relation to the School and school fees, the Applicant was aware of the fees by the fact that he signed the enrolments forms for the children to attend the School; and
(2)at no stage did the Applicant tell her that the children should not go to the School: see AAT decision at [16].
The AAT found that the Applicant had acceded to a request from the First Respondent in 2017 that the children be enrolled at the School, and that this followed from the Applicant signing the enrolment forms in 2017 for the children to attend the School, and that the Applicant had said “he did not want to stand in the way” of the children going to the School: see AAT decision at [19]. The AAT found that, by the fact the children were being educated at the School (where the combined fees were $58,000 per annum) and that the parents expected the children to be educated at the School, there were ‘special circumstances’ where the costs of maintaining the children are significantly affected: see AAT decision [19] – [20].
The AAT found that even if the Applicant’s expectation that the children be educated at a different ‘non-public system’ school was met, the cost of maintaining the children would still be significantly affected due to the costs of having the children educated at that school: see AAT decision at [21].
At [21] of its decision, the AAT noted that, as the first ground of the First Respondent’s initial application had been made out, there was “no purpose in considering whether the other ground upon which [the First Respondent] relied is also established”.
In relation to whether a departure was just and equitable, the AAT considered the factors set out in s117(4) of the Child Support Act at [23] of its decision, which included the earning capacity of each party, as set out at [24] – [50].
The AAT found that the Applicant was a professional with many years’ of experience, could obtain employment as a professional, and that he had ample opportunity to work. The AAT was also satisfied that:
(1)the Applicant’s decision not to work was not justified on the basis of care responsibilities for the children as he only has care for them for two days a fortnight;
(2)there was no evidence the Applicant suffered from ill health;
(3)the Applicant’s decision not to seek work as a professional since September 2019 was partially motivated by an intent to reduce his child support obligations; and
(4)the Applicant could obtain an income of at least $75,000 per annum as a professional: see AAT decision at [33] – [35].
The AAT ultimately found at [37] – [40] of its decision that the Applicant had modest expenses, being that he lives with his parents and only has a lease for a motor vehicle obtained on 12 August 2019. The AAT noted that the amount paid each month for the lease, being $1,616.36, was “well out of proportion” with his child support obligation of $36.25 a month. The AAT also noted at [42] of its decision that:
42. […] were it to make a determination departing from the provisions of the Act with respect to the assessment of child support so as to increase [the Applicant’s] obligation towards his children, hardship would be caused to him, but the Tribunal considers that that in large part is due to his not exploiting his capacity to earn an income and to his committing himself to the lease of the motor vehicle.
The AAT found that the First Respondent had expenses by way of mortgage repayments, paying the children’s school fees, and otherwise her expenses were modest: see AAT decision at [49].
In relation to the children, the AAT found that the children have “all the usual needs”, but that one of the children has a special medical need that is likely to increase the costs of his care: see AAT decision at [51]. The AAT also found that, as set out above, due to the children attending the School, the costs of the maintaining the children would increase substantially: see AAT decision at [53].
On the basis of these findings, the AAT was satisfied that it was just and equitable to depart from the child support assessments that were made (see AAT decision at [54]), and to vary the objection decision of the Registrar, as set out above. Relevantly, the AAT found at [57] that:
57. The Tribunal notes that the amount that it considers is just and equitable for [the Applicant] to pay going forward represents only a very small part of the costs of the children's care, which have been substantially increased as a consequence of their attending [The School], the fees for which amount to $58,000 a year. However, the Tribunal considers that [the Applicant’s] earning capacity and present financial situation with respect to his assets is such that he is unable to contribute any more.
The AAT also found that it was otherwise proper to make the determination it has found to be just and equitable to make: see AAT decision at [60].
Interlocutory Application
By way of the interlocutory application filed on 12 November 2020, the Applicant relevantly sought:
3. The Court orders that the operation and implementation or enforcement, of the following decisions, are stayed pending the determination of the appeal:
(i) The decision of the AA T given on 11 August 2020 that the decision under review is varied so that the annual rate of child support payable by the Applicant/Appellant ls varied to $19,500 for the period 1 August 2020 to 31 December 2021;
(ii) The decision of the Delegate of the Second Respondent dated 18 March 2020 on the condition that the Applicant/Appellant's adjusted taxable income for the period 1 November 2019 to the determination of the appeal is based upon an adjusted taxable income for the Applicant/Appellant of $43,368, and an annual rate of child support of $4,249 per year;
…
The interlocutory application was heard on 20 January 2021. In making oral submissions at that hearing, the Court was told that the stay was sought due to the possibility of a delay in having the originating application brought on for final hearing. However, in the course of discussions, the Court informed the parties that the matter could be listed for final hearing on 19 February 2021. On that basis, orders were made by consent for the stay application to be discontinued and the matter was listed for final hearing on 19 February 2021.
GROUNDS OF REVIEW
By way of the originating application, the Applicant seeks that the Court make orders as follows:
2.
(i)Set aside the decision of the AAT given on 11 August 2020 that the decision under review is varied so that the annual rate of child support payable by the Applicant is varied to $19,500 for the period 1 August 2020 to 31 December 2021.
(ii)The decision in (i) shall take effect from 31 October 2019.
(iii)Set aside the decision of the Delegate of the Second Respondent dated 18 March 2020 and substitute the decision that the Applicant's adjusted taxable income for the period 1 November 2019 to 30 June 2020 is based upon an adjusted taxable income amount for the Applicant of $43,368 and the annual rate of child support is $4,249 per year;
(iv)The decision in (iii) shall take effect from 31 October 2019.
(v)Set aside the decision of the AA T that there ought to be no retrospective variation to the departure to the provisions of the Act that the Child Support Registrar's delegate determined should occur by way of the objection decision.
(vi)The Court orders that the particulars in the Child Support Register shall be amended in accordance with orders (i)-(v) above, with the Applicant's Child Support Account Statement balance being in credit, as at 31 July 2020, in the amount of $13,469.35 if this amount is not re-paid by the First Respondent to the Applicant within 28 days from the making of the Court's decision.
3.The Court declares that the Tribunal should have been satisfied that there are no grounds for departing from the provisions of the Act, relating to administrative assessment of child support in relation to the children concerned; or that it would not be just or equitable as regards the children or the Applicant; or otherwise proper; to make the determination, and should have refused to make the determination without taking any further action under Part 6A of that Act, in accordance with s98F of the Act.
4.Costs.
In support of the orders sought, the Applicant relies on six grounds of appeal, as well as seven questions of law and five findings of fact on which the Applicant asks the Court to make findings. The grounds on which the Applicant relies are as follows:
1.The Tribunal failed to consider the way the Applicant put his case; or submissions of substance which, if accepted, are capable of affecting the outcome of the case.
2.The Tribunal breached the rules of natural justice in connection with the making of the decision,
3.The making of the decision by the Tribunal was an improper exercise of the power conferred by the Act in pursuance of which it was purported to be made in that:
(i)the exercise of the power was for a purpose other than a purpose for which the power is conferred;
(ii)it involved taking an irrelevant consideration into account in the exercise of the power;
(iii)procedures that were required by law to be observed in connection with the making of the decision were not observed.
4.The making of the decision was an improper exercise of the power conferred by the Act in pursuance of which it was purported to be made, because the Tribunal took an irrelevant consideration into account in the exercise of a power by determining that the conditions in the Act were satisfied when there was no material evidence upon which the Tribunal could reasonably make those findings,
5.The Applicant was denied procedural fairness, or the making of the decision was otherwise an improper exercise of the power conferred by the Act in pursuance of which it was purported to be made, because the Tribunal failed to take a relevant consideration into account by the erroneous application of the statutory test in the Act to facts not in dispute.
6.There was an error of law in the determination of whether the facts, fully found, fell within the provisions of the Act, properly construed.
The Applicant’s written submissions in support of this appeal were confusing and at times obscure. The Court has done the best that it could with those submissions which were supplemented with oral submissions at the Final Hearing.
CONSIDERATION
Ground One
The Applicant’s first ground of appeal is whether the AAT failed to consider whether the agreement between the parties for the children to attend the School was conditional on the First Respondent agreeing to pay the associated fees, and therefore the costs of maintaining the children was not significantly affected.
As was noted at [11] of the AAT decision, the relevant ground of departure was s117(2)(b)(ii). That subsection reads as follows:
(2) […] the grounds of departure are as follows:
…
(b) that, in the special circumstances of the case the costs of maintaining the children are significantly affected:
…
(ii) because the children have been cared for, educated or trained in the matter was expected by his or her parents.
At [12] – [18] of the AAT decision, the AAT recited the respective party’s submissions in relation to the choice of school. At [19], the AAT stated that they were satisfied that:
(1)from “a time before 2016, [the parties] expected the children would be educated outside the public school system”;
(2)the Applicant acceded to request from the First Respondent to sign a form to enable the enrolment of the children and he gave evidence that he “did not want to stand in the way” of the children going to the School; and
(3)the Applicant signed an enrolment form to enable them to do so.
At [20] of the AAT decision, the AAT accepted the Applicant’s evidence that he did not make any commitment to the First Respondent to pay the fees associated with the children’s education at the School. The AAT found that the Father’s agreement to pay the School’s fees was not a requirement for the ground of departure and instead found that what is required is that:
(1)there are special circumstances in the case;
(2)the children are being educated in the manner expected by the parties; and
(3)the costs of maintaining the children are significantly affected as a consequence of that.
The AAT made specific reference to the evidence of the Applicant that he signed the form conditional upon the First Respondent paying the School’s fees.
There is no error on the part of AAT on the basis of ground one, and therefore this ground must fail.
Ground Two
The Applicant’s second ground of appeal is whether the AAT denied the Applicant natural justice by failing to consider the Applicant’s case in relation to ‘any satisfaction that the ground for departure”, under s98(2)(a), s98C(1)(b) and s117(2)(c)(ia) of the Child Support Act did not exist. Essentially, this ground asserts that the AAT failed to consider whether a ground for departure under s117(2)(c)(ia) existed.
On its face, this ground of review is unclear. I assume that the ground is an assertion that the AAT failed to consider whether a ground for departure under s117(2)(c)(ia) existed. In circumstances where the AAT found that the ground for departure under s117(2)(b)(ii) had been established, there was no need for the AAT to ascertain whether a further ground of departure had been established: see Child Support Registrar & Crowley and Anor [2015] FamCAFC 76 at [33]. This ground must fail.
Ground Three
The Applicant’s third ground of appeal is whether the AAT’s decision was an ‘improper exercise’ of the power under the Child Support Act, because the AAT took into account the Applicant’s earning capacity, allegedly under s117(4)(da) and s117(7B) of the Child Support Act, when the decision under review allegedly ‘did not concern’ the ground under s117(2)(c)(ib).
Once the AAT is satisfied that there are grounds for departure under s98S of the Child Support Act, it may make the orders under section 98S, subject to being satisfied that the orders are just and equitable: see s117(1)(b)(ii)(A) of the Child Support Act.
In considering whether an order is just and equitable the AAT must have regard to the matters under s117(4) of the Child Support Act which include, pursuant to s117(4)(da), the earning capacity of each parent who is a party to the proceeding. In this matter, the AAT, being satisfied that there was a ground for departure, is obliged to take into account the earning capacity of each parent and therefore the AAT was not in error in considering the Applicant’s earning capacity. Further there is no substance to the complaint made in the Applicant’s submissions that he was “ambushed” by the AAT’s findings in relation to his earning capacity. That issue had been raised by the delegate and given the legislative provisions regarding the review, the requirement to consider the party’s earning capacity would have been apparent. This is particularly the case given that the Applicant is a professional. This ground has no substance and therefore must fail.
Ground Four
The Applicant’s fourth ground of appeal is whether the AAT’s decision was an improper exercise of power because it took into account an irrelevant consideration, being that the AAT found that the conditions in s117(7B)(a)(i) and s117(7B)(c) of the Child Support Act were met and there was no evidence on which the AAT could have reasonably made those findings.
Subsection 117(7B) provides:
(7B) In having regard to the earning capacity of a parent of the child, the court may determine that the parent's earning capacity is greater than is reflected in his or her income for the purposes of this Act only if the court is satisfied that:
(a) one or more of the following applies:
(i) the parent does not work despite ample opportunity to do so;
(ii) the parent has reduced the number of hours per week of his or her employment or other work below the normal number of hours per week that constitutes full-time work for the occupation or industry in which the parent is employed or otherwise engaged;
(iii) the parent has changed his or her occupation, industry or working pattern; and
(b) the parent's decision not to work, to reduce the number of hours, or to change his or her occupation, industry or working pattern, is not justified on the basis of:
(i) the parent's caring responsibilities; or
(ii) the parent's state of health; and
(c) the parent has not demonstrated that it was not a major purpose of that decision to affect the administrative assessment of child support in relation to the child.
At [31] – [35] of the AAT decision, the AAT set out the findings in relation to the matters set out in s117(7B). The ground is a challenge to findings of fact made by the AAT, however there is no basis for finding that the findings are affected by legal unreasonableness such as to constitute an error of law. In submissions in reply filed on 17 February 2020, the Applicant states that the complaint under this ground is that the matters under s117(7B) of the Child Support Act were not properly before the AAT, as the parties were not given any proper opportunity to make submissions and give evidence in relation to any earning capacity application. It is plain from the terms of the AAT decision that the Applicant gave evidence in relation to the matters that were dealt with at [30] – [35] of the decision. Again, the Applicant will have known that those matters were relevant given the terms of the legislation which govern the conduct of the review. This ground must fail.
Ground Five
The Applicant’s fifth ground of appeal is whether the Applicant was denied procedural fairness, because the AAT failed to take into account a relevant consideration due to the erroneous application of the test in s117(4)(e)(i) of the Child Support Act to facts ‘not in dispute’.
Subsection 117(4)(e)(i) provides as follows:
(4) In determining whether it would be just and equitable as regards the child, the carer entitled to child support and the liable parent to make a particular order under this Division, the court must have regard to:
…
(e) the commitments of each parent who is a party to the proceeding that are necessary to enable the parent to support:
(i) himself or herself
Subsection 117(4)(e)(i) of the Child Support Act requires the AAT to take into account the commitments of each party to the proceeding that are necessary to enable the parent to support himself or herself. At [36] – [41] of their decision, the AAT did this. At [41] the AAT made a finding of fact that “other than other than his commitments to pay the motor vehicle lease, [the Applicant] has very modest expenses”. The Applicant’s challenge to the findings set out at [22] – [24] of the AAT decision is an attempt to engage in impermissible merits review: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6. It is not apparent that the AAT failed to consider and make findings regarding, or taking into account, the commitments of each party. This ground must fail.
Ground Six
The Applicant’s sixth ground of appeal is whether the AAT failed to consider that the First Respondent retained all the property from their marriage as well as the ‘overwhelming majority’ of the income and financial resources.
The Applicant relies upon a judgement of the Family Court of Australia involving the parties which was handed down in October 2020, approximately two months after the AAT decision was published on 11 August 2020. The fact that the AAT decision did not consider that there may have been a change of circumstances arising as a result of the Family Court decision, which was handed down after the AAT decision, does not establish any error of law in the AAT’s decision. The AAT specifically referred to those proceedings at [46] (incorrectly referring to the Federal Court of Australia but plainly referring to the Family Court of Australia given the nature of the proceedings described) and noted that the First Respondent owns a property which she estimates of value to be $2,557,000 with a mortgage of $580,562. Any change of circumstances arising from the Family Court decision were not before the AAT when it considered the matter. This ground must fail.
CONCLUSION
For these reasons, the application filed on 10 September 2020 must be dismissed with costs.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McNab. Associate:
Dated: 11 May 2021
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