P v Child Support Registrar

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FEDERAL COURT OF AUSTRALIA

P v Child Support Registrar [2013] FCA 1312

Citation: P v Child Support Registrar [2013] FCA 1312
Appeal from: Confidential v Child Support Registrar and Anor [2013] AATA 426
Parties: P v CHILD SUPPORT REGISTRAR and M
File number: NSD 1254 of 2013
Judge: WIGNEY J
Date of judgment: 5 December 2013
Catchwords:

ADMINISTRATIVE LAW – appeal from the Administrative Appeals tribunal – appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) – what is a question of law

PRACTICE AND PROCEDURE – procedural fairness in the Administrative Appeals Tribunal

STATUTORY INTERPRETATION - what is the proper construction of s 50 and s 54A of the Child Support (Assessment) Act 1999 (Cth) – did the Tribunal err in its construction of s 50 and s 54A

Legislation: Acts Interpretation Act 1901 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Child Support (Assessment) Act 1999 (Cth)
Child Support (Registration and Collection) Act 1998 (Cth)
Explanatory Memorandum to the (Child Support and Family Assistance Legislation Amendment (Budget and Other Measures) Bill 2010)
Family Law Act 1975 (Cth)
Federal Court Rules 2011
Cases cited: Assistant Commissioner Condon v Pompano Pty Limited (2013) 295 ALR 638
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Limited (2003) 133 FCR 290
Australian Telecommunications Corp v Lambroglou (1990) 12 AAR 515
Baker v Telstra Corporation Ltd [2009] FCA 531
Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55
Caporale v Commissioner of Taxation [2012] FCA 86
Civil Aviation Safety Authority v Central Aviation Pty Ltd (2009) 253 ALR 263
Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28
Comcare v Etheridge (2006) 149 FCR 522
Comcare v Fiedler (2001) 115 FCR 328
Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Commissioner of Taxation v Perkins (1193) 26 ATR 8
Repatriation v Warren (2008) 167 FCR 511
De Simone v Federal Commissioner of Taxation [2009] FCAFC 181
Derisi v Vaughan [1983] 3 NSWLR 17
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Ergon Energy Corp Ltd v Commissioner of Taxation (2006) 153 FCR 551
Ex parte Gleeson [1907] VLR 368
Federal Commissioner of Taxation v Crown Insurance Services Ltd (2012) 207 FCR 247
Goodricke v Comcare (2011) 122 ALD 546
Hartnet v Migration Agents Registration Authority [2004] FCA 50
Hoe v Manningham City Council [2011] VSC 37
HP Mercantile Pty Limited v Federal Commissioner of Taxation (2005) 143 FCR 553
Jeray v Blue Mountains City Council (No 2) [2010] NSWCA 367
Kaluza v Repatriation Commission (2011) 280 ALR 621
Kenso Marketing (M) SDN BHD v Chief Executive Officer of Customs [2011] FCAFC 26
Kolya v Tax Practitioners Board [2012] FCA 215
Kowalski v Repatriation Commission [2011] FCAFC 43
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24
Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666
Minister for Immigration and…
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Details
Case
[2013] FCA 1312
Decision Date

CaseChat Overview and Summary

The case of P v Child Support Registrar involved an appeal by Mr P against the decision of the Administrative Appeals Tribunal (AAT) regarding the percentage of care for his child. The AAT had previously found that Mr P and the child's mother shared equal care of the child during the time he was at boarding school, a decision that was subsequently remitted for reconsideration. The AAT again found that the percentage of care was 50% for each parent but altered the effective date of the determination. Mr P appealed this decision, raising several questions of law and procedural fairness, specifically challenging the interpretation of sections 50 and 54A of the Child Support (Assessment) Act 1999 (Cth), and alleging procedural unfairness. The court was tasked with determining whether the AAT erred in its interpretation of the statutory provisions and in its procedural fairness obligations.

The primary legal issues revolved around the correct interpretation of sections 50 and 54A of the Act, specifically whether the Registrar must use the method set out in section 54A to determine the actual care of a child. Additionally, the court had to assess whether the AAT complied with procedural fairness in its proceedings, particularly in the cross-examination of the mother and in providing adequate reasons for its findings. The court also considered whether the AAT was required to regard financial arrangements as paramount in determining the percentage of care.

In addressing these issues, the court held that Mr P failed to demonstrate that the AAT erred in law or procedural fairness. The court found that the AAT appropriately interpreted the statutory provisions and provided adequate reasons for its findings. It also concluded that the AAT was not required to regard financial arrangements as paramount and that it properly exercised its jurisdiction. The court rejected Mr P's claims of procedural unfairness, finding that the AAT had adequately explained its approach and had not prevented the cross-examination of the mother.

The appeal was dismissed, and the court ordered that Mr P pay the first respondent's costs. The reasoning was grounded in the proper interpretation of the statutory provisions and the procedural fairness obligations of the AAT, leading to the conclusion that the AAT's decision was legally sound and procedurally fair.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 29 November 2012, Buchanan J found that the Tribunal erred in law in the way it approached the determination of Mr P’s percentage of care: see P v Child Support Registrar [2012] FCA 1398 (first appeal judgment). His Honour held that the Tribunal’s finding that Master C’s care during the period of time that he was at boarding school was shared equally between the parents failed to “observe the strictures in s 54A(3) of the Act”, which provides 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 Act to work out actual care in respect of the nights that Master C resided at St Joseph’s College. His Honour remitted the matter to the Tribunal to be further determined according to law. Upon remittal, the matter was heard by a differently constituted Tribunal on 1 May 2013. The Tribunal concluded that Mr P and Ms M had a percentage of care of 50%, but varied the decision of the SSAT to alter the effective date of the determination to 6 June 2011. It is from this decision of the Tribunal that Mr P brings this second appeal pursuant to s 44 of the AAT Act. Ms M, who was joined as a party in the proceedings in the Tribunal, has filed a submitting appearance in these proceedings. Mr P’s amended notice of appeal specifies ten questions of law and fifteen grounds of appeal that are said, in one way or another, to relate to the questions of law. Two of the questions of law (and associated grounds) relate to the proper construction of s 50 and s 54A of the Act. Two questions (and associated grounds) involve a contention by Mr P that the Tribunal denied him procedural fairness in various ways. The balance of the questions of law and associated grounds of appeal advanced by Mr P, whilst couched in terms that might suggest that questions or errors of law are involved, in fact involve challenges to various factual findings made by the Tribunal. For the reasons that follow, Mr P has failed to demonstrate that the Tribunal erred in law in its consideration and determination of his review application. The appeal accordingly must be dismissed with costs.RELEVANT STATUTORY FRAMEWORK Part 5 of the Act provides for the administrative assessment of child support. It includes a number of formulas used for assessing the rate of child support payable by a parent for a child for a day in a child support period. One of the steps in the formulas involves working out each parent’s percentage of care for the child for the day in accordance with Subdivision B of Division 4 of Part 5 of the Act. It is common ground that the relevant provision in subdivision B for determining the percentage of care in this matter is s 50. Section 50 of the Act provides as follows: 50Determination of percentage of care – responsible person has had etc. a pattern of care for a child (1) This section applies if:(a) either of the following applies:(i)an application is made under section 25 of 25A for a parent to be assessed in respect of the costs of the child;(ii)a parent is taken under section 73A to have had a relevant dependent child from a day specified in that section;and the Registrar is satisfied that a responsible person for the child has had or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regards to all the circumstances; or(b) the Registrar:(i)revokes, under Subdivision C of this Division, a determination of a responsible person’s percentage of a care for a child that was made under section 49 of this section; and(ii)is satisfied that the responsible person has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances.(2)The Registrar must determine the responsible person’s percentage of care for the child during the care period. (3)The percentage determined under subsection (2) must be a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person has had, or is likely to have, during the care period.

Ratio Decidendi

Legal Principle Established

It is possible to discern or extract some questions of law from the pleaded questions of law and grounds in Mr P’s notice of appeal, considered together with his written and oral submissions. Those questions of law, reframed so as to properly attract the jurisdiction of this Court, are set out below. I propose to address these questions, together with Mr P’s contentions and submissions that the Tribunal erred in ways associated or related to these questions, rather than addressing the questions framed in Mr P’s notice of appeal. The references in italics in the parentheses at the end of each question are references to the questions and grounds in Mr P’s notice of appeal that provide the basis for the reformulated question. (1)In determining whether the percentage of care determined by the Registrar under s 50(2) corresponds with the actual care of the child that the Registrar is satisfied the responsible person has had, is it mandatory for the Registrar to work out actual care by employing the method set out in s 54A of the Act? (questions 1 and 2 and grounds 1, 2 and 3 in Mr P’s notice of appeal) (2)Does the constraint or prohibition specified in subsection 54A(3) of the Act only apply where the Registrar works out actual care in accordance with s 54A(1) or (2)? (questions 1 and 2 and grounds 1, 2 and 3 in Mr P’s notice of appeal). (3)Was there evidence or material before the Tribunal capable of supporting, or were there logical grounds capable of supporting, the following findings of fact made by the Tribunal:(a) the consent orders were being complied with;(b)Mr P and Ms M were on an equal footing in respect of Master C’s care whilst he was at boarding school;(c)Mr P did not pay for the costs of Master C’s boarding at St Joseph’s College? (question 3 and 6 and grounds 4, 5, 6 and 11 of Mr P’s notice of appeal)(4)Was the fact that order 2 of the consent orders provided that Mr P and Ms M “have equal shared parental reasonability for” Master C an irrelevant consideration that the Tribunal was bound to ignore in determining the care of Master C? (question 4 and ground 7 of Mr P’s notice of appeal) (5)Did the Tribunal comply with its statutory duty under s 43(2) of the AAT Act by providing adequate reasons in relation to various findings made by it? (question 5 and grounds 8, 9 and 10 of Mr P’s notice of appeal) (6)Was the Tribunal required to, and if so did it fail to, have regard to the financial arrangements for the period Master C spent at boarding school as the “paramount consideration” in determining Mr P’s percentage of care? (question 7 and grounds 10 and 12 of Mr P’s notice of appeal) (7)Did the Tribunal fail to afford procedural fairness to Mr P by:(a)refusing or failing to explain the approach that would be used to determine the percentage of care;(b)preventing the cross examination of Ms M in relation to her evidence that Mr P was not complying with the consent orders? (questions 8, 9 and grounds 13 and 14 of Mr P’s notice of appeal)(8)Did the Tribunal fail to exercise its jurisdiction to conduct a review of the decision of the SSAT by limiting its consideration to the period that Master C spent at boarding school? (question 10 and ground 15 of Mr P’s notice of appeal) CONSIDERATION Questions 1 and 2(1) In determining whether the percentage of care determined by the Registrar under s 50(2) corresponds with the actual care of the child that the Registrar is satisfied the responsible person has had, is it mandatory for the Registrar to work out the actual care by employing the method set out in s 54A of the Act? (2) Does the constraint or prohibition specified in subsection 54A(3) of the Act only apply where the Registrar works out actual care in accordance with s 54A(1) or (2)?