Oliver v Oliver

Case [2021] FCCA 965

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

  1. 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”).

  2. 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).

  3. 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).

  4. 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

  5. The Applicant and First Respondent are the separated parents of two children, born in 2006 and 2009 (“the children”). The parents separated in 2012,…

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AGLC
Oliver v Oliver [2021] FCCA 965
Case
[2021] FCCA 965
Decision Date

CaseChat Overview and Summary

This case involved an appeal by Mr Oliver (the Applicant) against a decision of the Administrative Appeals Tribunal (AAT) concerning child support assessments for his two children. Ms Oliver was the First Respondent and the Child Support Registrar was the Second Respondent. The dispute centred on the AAT's decision to vary child support assessments to account for the costs of the children attending a private grammar school.

The court was required to determine whether the AAT erred in finding that a ground for departure from the standard child support assessment existed under section 117(2)(b)(ii) of the *Child Support (Assessment) Act 1989* (Cth). Specifically, the Applicant argued that the AAT failed to consider whether the agreement for the children to attend the school was conditional on the First Respondent paying the associated fees, and therefore the costs of maintaining the children were not significantly affected. The Applicant also contended that the AAT denied him natural justice by failing to consider other potential grounds for departure.

McNab J dismissed the Applicant's grounds of appeal. The court found that the AAT correctly applied section 117(2)(b)(ii) by determining that there were special circumstances, the children were being educated in a manner expected by the parents, and the costs of maintaining the children were significantly affected. The AAT's finding that the Applicant acceded to the children attending the school and did not want to "stand in the way" was sufficient, and it was not necessary for the Applicant to have committed to paying the fees for the ground of departure to be established. Furthermore, the court held that as the AAT had established a valid ground for departure under section 117(2)(b)(ii), it was not required to consider other potential grounds for departure, thus negating the natural justice argument.

The originating application was dismissed, and the Applicant was ordered to pay the Second Respondent's costs fixed at $8,700.

Orders

Orders of the court

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.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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].

Ratio Decidendi

Legal Principle Established

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. CONSIDERATIONGround 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