P v Child Support Registrar

Case [2014] FCAFC 98

FEDERAL COURT OF AUSTRALIA

P v Child Support Registrar [2014] FCAFC 98

Citation: P v Child Support Registrar [2014] FCAFC 98
Appeal from: P v Child Support Registrar [2013] FCA 1312
Parties: P v CHILD SUPPORT REGISTRAR and M
File number: NSD 2517 of 2013
Judges: PERRAM, PERRY & GLEESON JJ
Date of judgment: 11 August 2014
Catchwords:

ADMINISTRATIVE LAW – appeal from the Administrative Appeals Tribunal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) – whether there was evidence or material before the AAT capable of supporting findings of fact – whether departure from Child Support Agency policies constitutes jurisdictional error – appeal dismissed

STATUTORY INTERPRETATION – construction of ss 50, 54A and 54B of the Child Support (Assessment) Act 1989 (Cth)

PRACTICE AND PROCEDURE – whether AAT failed to afford procedural fairness – whether primary judge failed to afford procedural fairness  
Legislation: A New Tax System (Family Assistance) (Administration) Act 1999 s 35N(1)
Acts Interpretation Act 1901 (Cth) s 33
Administrative Appeals Tribunal Act 1975 (Cth) s 44
Child Support (Assessment) Act 1989 (Cth) ss 3, 4, 35, 35A, 36, 40C, 50, 54A, 54B, 54E
Federal Court of Australia Act 1977 (Cth)
Federal Court Rules 2011 (Cth)
Cases cited: Collins v Administrative Appeals Tribunal (2007) 163 FCR 35
Comcare v Etheridge (2006) 149 FCR 522
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Confidential and Child Support Registrar [2013] AATA 426
Confidential v Social Security Appeals Tribunal (2010) 118 ALD 620
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Kowalski v Chief Executive Officer of Medicare Australia (2010) 185 FCR 42
Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189
Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465
P v Child Support Registrar [2012] FCA 1398
P v Child Support Registrar [2013] FCA 1312
Polec v Staker (2011) 253 FLR 339
Rawson Finances Pty Ltd v Commissioner of Taxation (2013) 296 ALR 307
Re Father and Child Support Registrar [2012] AATA 396
Date of hearing: 21 March 2014
Date of last submissions: 11 June 2014
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 117
Counsel for the Appellant: The appellant appeared in person
Solicitor for the First Respondent: Mr N Gouliaditis (Australian Government Solicitor)
Counsel for the Second Respondent: The second respondent filed a submitting notice save as to costs

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 2517 of 2013
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN:

P
Appellant
AND:

CHILD SUPPORT REGISTRAR
First Respondent

M
Second Respondent

JUDGES:

PERRAM, PERRY & GLEESON JJ

DATE OF ORDER:

11 AUGUST 2014

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.P’s application to the Court to receive further evidence on the appeal be:

a.   refused as to the affidavit of P made on 20 March 2014;

b.   allowed as to the affidavit of P made on 31…

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AGLC
P v Child Support Registrar [2014] FCAFC 98
Case
[2014] FCAFC 98
Decision Date

CaseChat Overview and Summary

The case before the court involves P, appealing against a decision of the Child Support Registrar, regarding his percentage of care for his child C. P contends that his percentage of care should be substantially above 50% due to his payment of fees for C to reside as a boarder at St Joseph’s College. The legal issues the court was required to decide involve the proper interpretation of sections 50, 54A, and 54B of the Child Support (Assessment) Act 1989 (Cth) and whether there was evidence or material before the Administrative Appeals Tribunal (AAT) capable of supporting its findings of fact. The court also considered whether there was a failure to afford procedural fairness by the AAT and the primary judge.

The court found that the word "may" in sections 54A(1) and 54A(2) indicates that those provisions apply as a matter of discretion, not as a mandatory requirement. This conclusion was based on the ordinary rule of construction in relation to the word "may" when appearing in statutes, as well as the absence of any textual indication to displace the prima facie meaning of "may" as permissive. Additionally, section 54A(4) of the CSA Act states that it does not limit other sections, which supports the discretionary nature of section 54A. The court also found that there was sufficient evidence before the AAT to support its findings of fact. The court further found that there was no failure to afford procedural fairness by the AAT or the primary judge.

The appeal was dismissed, and the parties were directed to file and serve submissions as to costs within 14 days. The appellant and the second respondent were referred to in these orders and reasons for judgment by the pseudonyms 'P' and 'M' respectively.

Orders

Orders of the court

1. P’s application to the Court to receive further evidence on the appeal be:

a. refused as to the affidavit of P made on 20 March 2014;

b. allowed as to the affidavit of P made on 31 March 2014.

2. The appeal be dismissed.

3. The parties file and serve submissions as to costs within 14 days.

4. The appellant and the second respondent be referred to in these orders and reasons for judgment by the pseudonyms ‘P’ and ‘M’ respectively.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

P appeared unrepresented. His underlying contention is that his “percentage of care” for the relevant period substantially exceeds 50% when proper allowance is made for his payment of fees for C to reside as a boarder at St Joseph’s College Hunters Hill. As P said: “It is abhorrent to me that I have to pay child support when I’m already paying through the nose for a very good education and caring of my children”. BACKGROUND FACTS P and M are the parents of C, born in 1998. P and M also have other, younger children. At the beginning of 2011, C commenced as a weekly boarding student at St Joseph’s College. Prior to 6 June 2011, P had been assessed by the Child Support Agency to have 86% care of C. June 2011 parenting orders On 6 June 2011, orders were made by consent in the (then) Federal Magistrates Court in relation to the parenting of C, A and B (“parenting orders”). The parenting orders provided, among other things: a)“That [P] and [M] have equal shared parental responsibility” for the three children including but not limited to:i. The school or schools that each child is to attend;ii. The religious instruction and upbringing of each child;iii. The medical treatment that each child is to receive;iv. The sporting and other activities that the children are to engage in that would occur when the children are to spend time with each of them (clause 2);b)“That the parent with whom the children are living with at that time is to be responsible for the day to day decisions concerning the care, welfare and development of the children” (clause 3);c)“That during school terms the children… live with [P] each alternate week from after school Monday until the commencement of school the following Monday, and that the children otherwise live with [M]…” (clause 4);d)“That during school holidays the children spend one half of each school holidays with each of their parents …” (clause 5);e)A notation that C was currently at boarding school (clause 7);f)“That [P] and or [P’s mother] will be solely responsible for the payment of all and any school fees and expenses at St Joseph’s College Hunters Hill and that any such payments will not be claimed by [P] as a non-agency child support payments [sic] (clause 13)”;g)That P and M would do all things necessary to transfer the control of the Australian Scholarship Group (ASG) Fund to P (clause 33); andh)That P “must not use the said ASG fund for any purpose other than the education expenses of the children to attend St Joseph’s College Hunter’s Hill or such other school as agreed in writing between [P] and [M] or their tertiary education expenses” (clause 34). Despite the terms of clause 4 of the parenting orders, as noted in clause 7, C was a weekly boarder during the school term. The practical result was that, generally during the school term, C spent Monday to Friday nights inclusive at boarding school and Saturday and Sunday nights at the home of one of his parents.August 2011 decision to change P’s percentage of care, internal review and SSAT review

Evidence

Evidence Before The Court

During the hearing before this Court, P contended that the primary judge had not correctly identified all of the questions of law which P had sought to raise. We address this issue in dealing with P’s fourth ground of appeal.P’S APPLICATION TO ADDUCE FURTHER EVIDENCE ON APPEAL Section 27 of the Federal Court of Australia Act 1977 (Cth) allows the Court to receive further evidence on appeal. Rule 33.29 of the FCA Rules provides relevantly that an application for the Court to receive further evidence on appeal must be accompanied by an affidavit stating matters including the grounds of appeal to which the application relates and why the evidence was not adduced in the court appealed from. P filed two affidavits annexing material on which he sought to rely in the appeal. P’s first affidavit, sworn on 20 March 2014, annexes:a)An affidavit of Samer Husseini affirmed 21 January 2014; andb)An affidavit of P’s mother affirmed 22 January 2014. This evidence is directed to whether there was a loan arrangement between P and his mother in connection with the payment by P’s mother of C’s school fees. P’s second affidavit, made on 31 March 2014, annexes P’s outline of submissions provided to the primary judge. It was filed with the amended notice of appeal which P was granted leave to file. The Registrar did not oppose P’s reliance on the second affidavit. As to P’s first affidavit, the evidence that P seeks to adduce is relevant to a question of fact, namely the existence of the loan arrangement between P and his mother. The only issue in this appeal to which this evidence could conceivably relate is the second ground of appeal. That ground of appeal concerns whether there was evidence before the AAT to support its finding that there was no loan arrangement. The existence of other evidence of the loan arrangement is not relevant to the narrow question whether there was evidence before the AAT to support its finding. Accordingly, we will not receive P’s first affidavit as further evidence on the appeal. In the absence of any opposition from the Registrar, and having regard to ground 4 of P’s amended notice of appeal, we will receive P’s second affidavit as further evidence on the appeal.CONSIDERATIONFirst ground of appeal: misconstruction of CSA Act The primary judge addressed this issue at [55] to [71] of his reasons. As recorded by the primary judge, P’s submission was that, to work out ‘actual care’ for the purposes of the comparison mandated by s 50(3) of the CSA Act, it is mandatory to work out actual care in the way stipulated in s 54A. The primary judge rejected this submission, referring to the following matters:a)The use of the word “may” in s 54A(1) and s 54A(2) indicates that those provisions apply as a matter of discretion, having regard to s 33(2A) of the Acts Interpretation Act 1901 (Cth) and the ordinary rule of construction in relation to the word “may” when appearing in statutes.b)The absence of any textual indication to displace the prima facie meaning of “may” as permissive, and not mandatory.c)Section 54A(4) of the CSA Act provides that “This section does not limit section 50, 51, 52 or 54”. A requirement to apply s 54A when working out “actual care” for the purposes of s 50(3) could perhaps be considered a limitation.d)Extrinsic material tends to confirm the ordinary meaning of “may” in s 54A of the CSA Act. The primary judge referred to the following passage from the Explanatory Memorandum to the Child Support and Family Assistance Legislation Amendment (Budget and Other Measures) Bill 2010 (Cth):New section 54A provides guidance for the Registrar in working out the actual care and extent of care that a person has of a child. New subsection 54A(1) provides that actual care may be worked out based on the number of nights that the child is likely to be in the care of the person during the care period. New subsection 54A(2) provides that the extent of care under a care arrangement may be worked out based on the number of nights that the child is to be in the care of the person during the care period under the care arrangement. Both of these requirements are for guidance and new subsection 54A(4) provides that they do not limit the application of new sections 50, 51, 52 and 54. New subsection 54A(3) provides that a child cannot be in the care of more than one person at the same time. Therefore, if the number of nights in care does not appropriately reflect the actual care or extent of care the person has, then the Registrar may use a different method to determine the percentage of care. An example of where nights in care may be shown not to be appropriate would be where a child does not stay overnight with a parent because the parent works night shifts but the parent does provide significant periods of daytime care.e)His Honour observed (at [62]) that the Explanatory Memorandum makes it “fairly clear” that it is open to the Registrar to employ a methodology other than the one set out in s 54A if the s 54A method is not appropriate.

Decision

Reasons for decision

Despite the terms of clause 4 of the parenting orders, as noted in clause 7, C was a weekly boarder during the school term. The practical result was that, generally during the school term, C spent Monday to Friday nights inclusive at boarding school and Saturday and Sunday nights at the home of one of his parents.August 2011 decision to change P’s percentage of care, internal review and SSAT review On 12 August 2011, the Registrar made a decision changing P’s percentage of care to 50% from 6 June 2011 on the basis of the parenting orders made by the Federal Magistrates Court. P objected to that determination. The basis of the objection, according to the subsequent SSAT decision, was “that his care percentage for [C] should revert to the percentage applicable before June 2011 and that he is fully responsible for [C’s] care as he pays for all of [C’s] expenses relevant to his attendance at boarding school”. On 21 October 2011, the objection was disallowed. P lodged an application for review of the objection officer’s decision with the SSAT. On 23 January 2012, the SSAT varied the decision so that P was assessed as having 50% of care for C from 29 July 2011. According to the SSAT decision:a)P said that he was wholly responsible for all school fees and associated costs.b)P’s stated belief was that the parenting orders “when read in their entirety, simply ratify the pre-existing care arrangements. That is, on the basis that [C] is fully supported by him throughout his 40 weeks of schooling, with the parents sharing equally in the remaining period of 12 weeks (school holidays), and further noting that [C] spends one or two nights additional per week in his parents’ shared care, his care percentage should certainly be much greater than 50%”.c)P estimated that [C] was in his care 82% of the time “but he would be happy to settle for 77%”.2012 AAT review and first appeal to the Federal Court On 28 June 2012, the AAT affirmed the SSAT’s determination as to P’s percentage of care but varied the decision so that the determination was to take effect from 6 June 2011: Re Father and Child Support Registrar [2012] AATA 396 (“2012 AAT decision”). P appealed to this Court from the first AAT decision and was successful: P v Child Support Registrar [2012] FCA 1398 (“the 2012 FCA decision”). Buchanan J held that the AAT failed to “observe the strictures in s 54A(3) of the Act” in finding that C’s care during the period of time that he was at boarding school was shared equally between the parents because s 54A(3) requires that, for the purposes of s 54A, a child cannot be in the care of more than one person at the same time. Buchanan J questioned, but did not decide, whether it was necessary to apply s 54A of the CSA Act to work out actual care in respect of the nights that C resided at St Joseph’s College. His Honour remitted the matter to the AAT to be further determined according to law. Buchanan J further noted that:a)the evidence before the AAT was that the parenting orders had been complied with (at [5]; see also at [17]). This observation was directed to those orders which contemplated that C would be a weekly boarder during ordinary school terms, but that otherwise he would spend his time with one or other of his parents in a way which divided that time equally;b)“It was agreed that C was in the care of [P] or [M] on each of the 82 nights of the year that C spent with one or the other, and there is no basis to doubt or disturb that common position” (at [11]);c)“[P]’s position has been that he is entitled to be regarded as C’s carer during the whole of the period that C is at St Joseph’s College because [P], or someone on his behalf, meets the whole of the costs of those arrangements” ([12]. See also [21] and [31]);d)P accepted that each parent was entitled to be consulted if questions about the wellbeing of C arose during the period he spent at St Joseph’s College. P also confirmed that credit for the payments of the school fees, which were paid by him or on his behalf, was “the paramount issue at the heart of his case” (at [22]).

Ratio Decidendi

Legal Principle Established

In the absence of any opposition from the Registrar, and having regard to ground 4 of P’s amended notice of appeal, we will receive P’s second affidavit as further evidence on the appeal.CONSIDERATIONFirst ground of appeal: misconstruction of CSA Act The primary judge addressed this issue at [55] to [71] of his reasons. As recorded by the primary judge, P’s submission was that, to work out ‘actual care’ for the purposes of the comparison mandated by s 50(3) of the CSA Act, it is mandatory to work out actual care in the way stipulated in s 54A. The primary judge rejected this submission, referring to the following matters:a)The use of the word “may” in s 54A(1) and s 54A(2) indicates that those provisions apply as a matter of discretion, having regard to s 33(2A) of the Acts Interpretation Act 1901 (Cth) and the ordinary rule of construction in relation to the word “may” when appearing in statutes.b)The absence of any textual indication to displace the prima facie meaning of “may” as permissive, and not mandatory.c)Section 54A(4) of the CSA Act provides that “This section does not limit section 50, 51, 52 or 54”. A requirement to apply s 54A when working out “actual care” for the purposes of s 50(3) could perhaps be considered a limitation.d)Extrinsic material tends to confirm the ordinary meaning of “may” in s 54A of the CSA Act. The primary judge referred to the following passage from the Explanatory Memorandum to the Child Support and Family Assistance Legislation Amendment (Budget and Other Measures) Bill 2010 (Cth):New section 54A provides guidance for the Registrar in working out the actual care and extent of care that a person has of a child. New subsection 54A(1) provides that actual care may be worked out based on the number of nights that the child is likely to be in the care of the person during the care period. New subsection 54A(2) provides that the extent of care under a care arrangement may be worked out based on the number of nights that the child is to be in the care of the person during the care period under the care arrangement. Both of these requirements are for guidance and new subsection 54A(4) provides that they do not limit the application of new sections 50, 51, 52 and 54. New subsection 54A(3) provides that a child cannot be in the care of more than one person at the same time. Therefore, if the number of nights in care does not appropriately reflect the actual care or extent of care the person has, then the Registrar may use a different method to determine the percentage of care. An example of where nights in care may be shown not to be appropriate would be where a child does not stay overnight with a parent because the parent works night shifts but the parent does provide significant periods of daytime care.e)His Honour observed (at [62]) that the Explanatory Memorandum makes it “fairly clear” that it is open to the Registrar to employ a methodology other than the one set out in s 54A if the s 54A method is not appropriate.