FEDERAL COURT OF AUSTRALIA
P v Child Support Registrar [2015] FCA 116
Citation: P v Child Support Registrar [2015] FCA 116 Appeal from: P v Child Support Registrar [2014] AATA 229 Parties: P v CHILD SUPPORT REGISTRAR and M File number: NSD 409 of 2014 Judge: KATZMANN J Date of judgment: 27 February 2015 Catchwords: ADMINISTRATIVE LAW – appeal from Administrative Appeals Tribunal under s 44 of Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) in relation to assessment of child support under Child Support (Assessment) Act 1989 (Cth) – whether tribunal failed to give adequate reasons– whether tribunal denied applicant procedural fairness – whether tribunal applied incorrect legal principles – whether tribunal erred by departing from Child Support Registrar’s policies – whether there was evidence or material before the tribunal capable of supporting its findings of fact – whether tribunal erred by disregarding certain evidence – whether tribunal’s decision illogical or irrational
STATUTORY INTERPRETATION – construction of Child Support (Assessment) Act 1989 (Cth) – whether tribunal was bound to determine percentage of care by reference to s 54A(3) of the Act
Legislation: A New Tax System (Family Assistance) Act 1999 (Cth), s 35N(1)
Administrative Appeals Tribunal Act 1975 (Cth), ss 35, 36D, 43(1), 43(2), 43(2B), 44, 44(7), 44(8), 46
Administrative Appeals Tribunal (Amendment) Act 2005 (Cth)
Child Support (Assessment) Act 1989 (Cth), ss 5, 50, 50(1), 50(1)(a), 50(2), 51, 52, 54, 54A, 54A(1), 54A(2), 54A(3), 54A(4), 54B
Family Law Act 1975 (Cth), s 61B, 61DA, 61DA(1), 65DAA, 65DAC, 65DAE
Federal Court of Australia Act 1976 (Cth), s 24, 27
Federal Court Rules 2011 (Cth), r 33.29Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630
Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500; [1983] FCA 179
Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Comcare Australia v Lees (1997) 151 ALR 647
Comcare v Etheridge (2006) 149 FCR 522
Comcare v Martin [2015] FCA 4
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Committee of Direction of Fruit Marketing v Delegate of the Australian Postal Commission (1979) 37 FLR 457
Confidential and Child Support Registrar [2013] AATA 426
Confidential and Social Security Appeals Tribunal [2010] AATA 892
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Minister for Immigration and Multicultural Affairs v Al-Miahi (2001) 65 ALD 141; [2001] FCA 744
Minister for Immigration v Li (2013) 249 CLR 332
Minister for Immigration and Multicultural Affairs v Singh (2002) 209 CLR 533
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
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…
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Details
- Case
- [2015] FCA 116
- Decision Date
CaseChat Overview and Summary
The appellant, P, appeals against the decision of the second respondent, the Child Support Registrar, as varied by the Administrative Appeals Tribunal (AAT). P challenges the tribunal's decision to vary the determination of the percentage of care for his son, A, who attends boarding school. The tribunal's decision was to set the percentage of care for A at 55% for P and 45% for M, effective from 8 January 2013. The primary issue before the court was whether the tribunal's decision was in accordance with the law and based on the evidence presented. The court had to determine whether the tribunal provided adequate reasons for its decision, whether it had denied P procedural fairness, whether it applied the correct legal principles, whether it departed from the Child Support Registrar's policies, whether there was evidence to support the tribunal's findings, and whether the tribunal's decision was illogical or irrational.
The court found that the tribunal's decision was in accordance with the law and based on the evidence presented. The court rejected P's argument that the tribunal should have applied the method for determining actual care provided by s 54A(1) of the Child Support (Assessment) Act 1989 (Cth). The court held that the tribunal was not bound to apply this method and that it was not useful or appropriate in this case. The court found that the tribunal had considered all relevant evidence and had made its decision based on the ordinary meaning of the term "actual care". The court also rejected P's argument that the tribunal had denied him procedural fairness or that it had erred in its application of the law. The court held that the tribunal had given adequate reasons for its decision and that it had not departed from the Child Support Registrar's policies. The court found that the tribunal's decision was not illogical or irrational and that it was supported by the evidence presented.
The court dismissed the appeal and ordered P to pay the first respondent's costs. The court held that the tribunal's decision was in accordance with the law and based on the evidence presented. The court found that the tribunal had considered all relevant evidence and had made its decision based on the ordinary meaning of the term "actual care". The court rejected P's argument that the tribunal should have applied the method for determining actual care provided by s 54A(1) of the Child Support (Assessment) Act 1989 (Cth). The court held that the tribunal was not bound to apply this method and that it was not useful or appropriate in this case. The court also rejected P's argument that the tribunal had denied him procedural fairness or that it had erred in its application of the law. The court held that the tribunal had given adequate reasons for its decision and that it had not departed from the Child Support Registrar's policies. The court found that the tribunal's decision was not illogical or irrational and that it was supported by the evidence presented.
The court found that the tribunal's decision was in accordance with the law and based on the evidence presented. The court rejected P's argument that the tribunal should have applied the method for determining actual care provided by s 54A(1) of the Child Support (Assessment) Act 1989 (Cth). The court held that the tribunal was not bound to apply this method and that it was not useful or appropriate in this case. The court found that the tribunal had considered all relevant evidence and had made its decision based on the ordinary meaning of the term "actual care". The court also rejected P's argument that the tribunal had denied him procedural fairness or that it had erred in its application of the law. The court held that the tribunal had given adequate reasons for its decision and that it had not departed from the Child Support Registrar's policies. The court found that the tribunal's decision was not illogical or irrational and that it was supported by the evidence presented.
The court dismissed the appeal and ordered P to pay the first respondent's costs. The court held that the tribunal's decision was in accordance with the law and based on the evidence presented. The court found that the tribunal had considered all relevant evidence and had made its decision based on the ordinary meaning of the term "actual care". The court rejected P's argument that the tribunal should have applied the method for determining actual care provided by s 54A(1) of the Child Support (Assessment) Act 1989 (Cth). The court held that the tribunal was not bound to apply this method and that it was not useful or appropriate in this case. The court also rejected P's argument that the tribunal had denied him procedural fairness or that it had erred in its application of the law. The court held that the tribunal had given adequate reasons for its decision and that it had not departed from the Child Support Registrar's policies. The court found that the tribunal's decision was not illogical or irrational and that it was supported by the evidence presented.
Orders
Orders of the court
1. The appeal be dismissed.
2. The applicant pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
After P filed his appeal in the present case, some of the questions of law he raised were determined against him in the appeal from the AAT’s decision regarding C (P v Child Support Registrar [2013] FCA 1312). Last year, a Full Court dismissed an appeal from that judgment (P v Child Support Registrar [2014] FCAFC 98) (“C’s case”)). Many of the points P raised in his notice of appeal in the present case were rejected in C’s case. On 2 September 2014, pursuant to leave granted by the Court, P filed an amended notice of appeal but the amended notice of appeal failed to take heed of the Full Court’s decision.Background Since January 2013 A has been a weekly boarder at a private school in Sydney. Until January 2014 he was living with one or other of his parents on alternate weekends and during school holidays. Under the terms of consent orders made on 6 June 2011 in the Federal Magistrates Court (now the Federal Circuit Court), P and M have “equal shared parental responsibility” for each of their three children. That includes, but is not limited to, responsibility for the schools the children attend; their religious instruction and upbringing; their medical treatment; and their sporting and other activities. Responsibility for day-to-day decisions concerning their care, welfare and development lies with the parent with whom the child is living at any particular time. Each parent is required to ensure that the children are adequately supplied with all equipment (including sporting equipment), uniforms, footwear and school books that they would require whilst living with the other parent. The orders noted that C was at boarding school and contemplated that from 2013 A would be, too. Responsibility for the payment of school fees and expenses rests with P and/or P’s mother. According to the judgments in C’s case, before the consent orders were made, the Registrar determined that P’s percentage of care with respect to C was 86%. Afterwards, upon the application of M, the Registrar varied the determination to 50% (withstanding all challenges by P). The Registrar made the same determination in A’s case. On 8 January 2013 P sought a variation of his existing percentage of care for A to reflect his contention that he should be considered C’s sole carer for the periods C is boarding. He claimed that from 8 January 2013 the percentage should be 77% in his favour. On 8 March 2013 the Registrar was satisfied that the existing determination was correct and declined to revoke it. An objection against that decision was disallowed on 16 May 2013 and four days later P lodged an application for review with the SSAT. The SSAT affirmed the Registrar’s decision. The AAT varied the decision, however, revoking the existing determination “as of 8 January 2013” and substituting from that date a decision that P’s percentage of care is 55% and M’s 45%. This is the decision the subject of the present appeal.The statutory framework Before going any further, it is necessary to say something about the legislative scheme. It is described in some detail in the decision of the Full Court in C’s case (at [16]–[26]). For present purposes, it is sufficient to refer to the relevant sections. They appear in Subdivision B of Division 4 of Part 5 of the Assessment Act. They deal with the determination of the percentage of care for a child to be attributed to a “responsible person”, defined in s 5 of the Act to mean “a parent or non-parent carer of the child”.
Evidence
Evidence Before The Court
In his amended notice of appeal P sought orders allowing the appeal, setting aside the tribunal’s decision, substituting an order that the determination of the percentage of care for A be 77% to P and 23% to M, effective 8 January 2013 or, alternatively remitting the matter to the tribunal for determination according to law “within 30 days from the date of the judgement”; and a stay on all child support payments until the determination of the appeal. He also asked for an order for costs “payable within 21 days”. The application for a stay was not actively pursued. While the written submissions mentioned the stay as one of the orders sought, P advanced no argument in support of a stay, either orally or in writing. Nor did he lay any foundation for it. Consequently, I made no such order.Should P have leave to adduce further evidence? On 1 August 2014 P filed an interlocutory application seeking leave to adduce further evidence on the appeal. The interlocutory application was listed for hearing on the day of the appeal. I heard argument about whether the further evidence should be admitted and as to its effect on the resolution of the issues in dispute if it were and indicated I would give my decision at the time I delivered judgment. The application was supported by an affidavit sworn by P on 20 March 2014. In the affidavit P stated that the Registrar has made a 100% determination in his favour since the hearing before the tribunal and that the details of that determination were relevant to his appeal. He went on to say (in para 5) (without alteration):The evidence that was relied upon in this new determination was before Senior Member Redfern at the AAT hearing. It is my belief that it is illogically and irrational for the Child Support Registrar to reach totally disparate determination based on the same evidence. The transcript of the hearing before the AAT will show that the representative of the Child Support Registrar argued that the evidence should be disregard in the determination of Senior Member Redfern. P said that he believed that the determination supported questions 2–7 inclusive and grounds 2–12 in his original notice of appeal. Most, but not all, of these questions and grounds correspond to questions and grounds in his amended notice of appeal. The evidence in question is described in the interlocutory application as:Details of Objection Decision – STATEMENT OF REASONS dated 3 April 2014 prepared by the Child Support Registrar. In fact, however, the evidence P sought to adduce related to a different decision made on 2 June 2014, which was a decision relating to P’s objection to the 3 April decision. It was the statement of reasons for the 2 June 2014 decision which was annexed to P’s affidavit. The earlier decision of 3 April 2014 was to the effect that for an interim period of 26 weeks from 8 January 2014 P had shared care for both C and A. On 2 June 2014 the Registrar allowed P’s objection and substituted a new decision in relation to the interim period and a subsequent period as well. As the Registrar’s decision in relation to the objection was made after the AAT had published its decision, and as the Registrar’s decision record shows that there was evidence before the Registrar that was provided after the date of the AAT hearing, it is apparent that the assertion made in para 5 of the affidavit is false and must be rejected.
Decision
Reasons for decision
In making any determination under Subdivision B, the Registrar is required to have regard to any guidelines in force under s 35N(1) of A New Tax System (Family Assistance) Act 1999 (Cth): Assessment Act, s 54E. The AAT’s decision Contrary to P’s contention that it should do so, the tribunal declined to apply the method for determining actual care provided by s 54A(1). The tribunal noted that the primary judge in C’s case (Wigney J) had held that it was not mandatory to do so and that in a case such as this, where the child is at boarding school and not staying overnight with either parent, it is of little guidance or assistance. Indeed, the tribunal said that in these circumstances it was neither useful nor appropriate and it would be artificial and arbitrary to invoke it. The tribunal rejected P’s contention that A was entirely in the care of P when he was boarding because P pays or is responsible for the school fees. The tribunal explained (at [67]):If this is a contention that actual care should be assessed on nights and all nights should be attributed to the applicant while A is in boarding school, I reject it. This contention does not recognise the importance of certain aspects of care for A, other than those relating to his accommodation, food and clothing, and ignores the level of care provided by [M] during this time. She sees or speaks to A every day during the week while he is at school, is involved in parent-teacher meetings and is listed as one of A’s emergency contacts. No major decisions about A’s health care, medical treatment or education could be made during this period without reference to [M]. The tribunal then proceeded to make an assessment of actual care without regard to s 54A(1) (or (2)). Noting that “actual care” was not defined in the Assessment Act except by reference to s 54A(1), the tribunal considered that the expression should be given its ordinary meaning. The tribunal appears to have accepted that during the time A was at boarding school:·the school would contact both parents when the children were ill or there was some other need for them to be contacted;·M had regular contact with A by telephone;·M would regularly meet A for lunch and make purchases of food, toiletries and other items for him;·M would take A to and from school on the weekends he spent with her;·M maintained accommodation near to the school where clothing and equipment for all three children were kept. The tribunal said (at [71]):The evidence is to the effect that once A commenced boarding at [the school] both parents continued to communicate with him regularly during the week. They are both involved with the school and provide emotional support to A. Their evidence on these matters was not contested. When A is not boarding, he spends alternate weekends and half the holidays with each parent. The tribunal noted that P and M had shared parental responsibility for A as a result of the orders made by consent in the Federal Magistrates Court on 6 June 2011. The tribunal considered that making decisions about important life matters or having the responsibility for doing so was relevant to, though not determinative of, the question of care.
Ratio Decidendi
Legal Principle Established
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