Rodda v Child Support Registrar
[2020] FCCA 2472
•25 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RODDA v CHILD SUPPORT REGISTRAR & ANOR | [2020] FCCA 2472 |
| Catchwords: CHILD SUPPORT – Judicial review of a decision of the Administrative Appeals Tribunal – numerous grounds of review advanced – no reviewable legal error. |
| Legislation: Administrative Appeals Tribunal Act 1975 (Cth), ss.33, 44 Child Support (Assessment) Act 1989 (Cth), ss.98C, 117 Child Support (Registration and Collection) Act 1988 (Cth), ss.110B, 111 Evidence Act 1995 (Cth), s.163 |
| Cases cited: Abebe v Commonwealth [1999] HCA 14 Acuna Plaza v Minister for Immigration (No 2) [2019] FCA 424 AIM15 v Minister for Immigration [2017] FCA 734 Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707 Chen v Secretary, Department of Social Services [2019] FCA 1155 Child Support Registrar & Crabbe & Anor [2014] FamCAFC 10 Daley v Secretary, Department of Social Services [2017] FCA 230 ECJ17 v Minister for Home Affairs [2019] FCA 2121 Ely v Ely & Anor [2019] FCCA 503 Haritos v Commissioner of Taxation [2015] FCAFC 92 Lloyd v Tasker & Anor [2016] FCCA 297 Mendonca v Legal Services Commissioner [2020] NSWCA 84 Minister for Immigration v Al-Miahi (2001) 65 ALD 141 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration v SZMDS (2010) 240 CLR 611 MZXHY v Minister for Immigration [2007] FCA 622 MZZYE v Minister for Immigration [2015] FCA 1378 NAHI v Minister for Immigration [2004] FCAFC 10 |
| Applicant: | RODDA |
| First Respondent: | CHILD SUPPORT REGISTRAR |
| Second Respondent | TASH |
| File Number: | PEG 16 of 2020 |
| Judgment of: | Judge Driver |
| Hearing date: | 3 September 2020 |
| Delivered at: | Sydney |
| Delivered on: | 25 September 2020 |
REPRESENTATION
The Applicant appeared in person by videoconference
| Solicitors for the First Respondent: | Mr S Cummings of Sparke Helmore by videoconference |
The Second Respondent appeared in person by videoconference
ORDERS
The applicant’s Amended Notice of Appeal (Child Support) lodged on 28 April 2020 and filed on 14 May 2020 is dismissed.
The second respondent’s Notice of Cross-Appeal (Child Support) lodged on 2 June 2020 and filed on 4 June 2020 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Rodda v Child Support Registrar & Anor is approved pursuant to s.110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 16 of 2020
| RODDA |
Applicant
And
| CHILD SUPPORT REGISTRAR |
First Respondent
| TASH |
Second Respondent
REASONS FOR JUDGMENT
By a Notice of Appeal (Child Support) filed on 15 January 2020 and amended on 28 April 2020 (Notice of Appeal), the applicant (father) appeals from a decision of the Administrative Appeals Tribunal (Tribunal) made on 4 December 2019. The second respondent (mother) lodged a Notice of Cross-Appeal (Child Support) on 2 June 2020.
Background
The following background is taken from the Tribunal’s decision.
The father and the mother are the separated parents of two children. As at the date of the Tribunal’s decision, one child was aged 17 and the other was aged 11.[1]
[1] Tribunal decision (TD) [1]
A child support assessment was registered on 5 April 2018.[2]
[2] TD [1]
On 13 July 2018, the mother lodged an application for a change of assessment (COA application). At the time the COA application was lodged, the assessment obliged the mother to pay the father an annual amount of child support of $9,882, on the basis of the children living in an equal time arrangement, the mother’s adjusted taxable income (ATI) being $105,964 (her 2017 taxable income) and the father’s ATI being $28,528 (his 2017 taxable income).[3]
[3] TD [2]
The elder child’s living arrangement changed on 3 September 2018, namely, he began to live with the mother on a full-time basis.[4] This reduced the child support payable by the mother to $4,432 per annum.[5]
[4] TD [3]
[5] TD [3]
The COA application was resolved by a decision dated 26 October 2018[6] which made the following changes to the extant administrative assessment:[7]
a)the father’s ATI was set at $137,341 for the period 5 April 2018 to 17 November 2020;
b)the child support payable by the father was increased by $3,191 for the period 5 April 2018 to 31 December 2018 as his contribution to one child’s private school fees;
c)the father was required to pay 50 per cent of the private school fees for one child at his current school for the period 1 January 2019 to 31 December 2025.
[6] COA decision
[7] TD [4]
The decision resulted in the father becoming the liable parent. On 27 October 2018, the father objected to the COA decision (objection application).[8]
[8] TD [5]
The father’s objection application was allowed in part on 22 February 2019.[9] The COA decision was set aside and replaced with the following:
a)the father’s ATI was varied down from $137,341 to $85,000 for the period 5 April 2018 to 31 December 2020;
b)the father’s annual rate of child support was increased by $3,191 for the period 5 April 2018 to 31 December 2018. This increase was to constitute his share of one child’s education costs. That additional amount was to be increased year on year on 1 January 2019 and 21 January 2020.
[9] TD [5]
On 26 March 2019, the father lodged an application for review of the objection decision in the Tribunal.[10] The father was subsequently granted an extension of time to seek review of the objection decision by the Tribunal.[11]
[10] TD [6]
[11] TD [6]
On 4 December 2019, the parties attended a telephone hearing before the Tribunal at which they each gave sworn evidence.[12] The Tribunal considered a T-documents bundle of 1,450 pages in length together with further evidence provided by each party (marked A1-A30 for the father and B1-B53 for the mother).[13] As noted above, the Tribunal made its decision on 4 December 2019.
[12] TD [6]
[13] TD [7]
Tribunal’s reasons
Under s.98C of the Child Support (Assessment) Act 1989 (Cth) (Assessment Act), the Tribunal’s decision set out the following three questions:[14]
a)is there a ground to depart from the administrative assessment of child support;
b)is it just and equitable to depart; and
c)is it otherwise proper to depart.
[14] TD [10]-[13]
Grounds for departure
The Tribunal first considered the ground for departure in s.117(2)(c)(ia) of the Assessment Act as it related to the father’s income. That section provided a ground for departure where:
in the special circumstances of the case, application in relation to the child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child: … because of the income, property and financial resources of either parent.
The primary factual dispute dividing the parties concerned whether the father was a mere employee of a business earning only $25,200 gross per annum (the father’s position) or if he had in fact alienated the income he earned from that business by selling it to his father (the mother’s position).[15] After a detailed consideration of the evidence, the Tribunal concluded as follows:
[15] TD [14]
Father’s income
a)the father’s day-to-day role in the business was better described as a manager rather than a mere installer.[16] He had described himself as a manager in his tax returns;[17]
b)it did not accept that the business owner, the father’s own father (grandfather), would pay the father for his work in the business at a rate below the minimum wage given the skills and knowledge he has that are critical to the success of the business.[18] The Tribunal instead concluded that some sort of arrangement had “been made with child support in mind”;[19]
c)it did not accept that the father’s voluntary work precluded him from working full-time in the business;[20]
d)it agreed with the objection application decision-maker’s assessment concerning the business, namely, notwithstanding the fact that it is owned by the grandfather, the business relies substantially (if not solely) on the father’s knowledge and expertise, and it is reasonable to conclude that he exercises significant financial control over the business;[21]
e)the Tribunal concluded that an appropriate income figure for the father would be $76,000, based on both the MTAWE (male total average weekly earnings figure) and an adjusted profit figure for the business for the financial year ending 30 June 2019.[22]
[16] TD [40], [56]
[17] TD [40]
[18] TD [51]
[19] TD [51]
[20] TD [52]
[21] TD [57]
[22] TD [62]
Mother’s income
The Tribunal accepted that the mother’s taxable income adequately reflects her income, property and financial resources for child support purposes and therefore saw no need to vary it.[23]
Conclusion in relation to the s.117(2)(c)(ia)
[23] TD [63]-[65]
The Tribunal’s rough estimate was that the mother would pay over $6,000 more per year in child support if the father’s income figure was not changed from its then existing level in the assessment ($28,528) to the figure it proposed ($76,000).[24] The Tribunal concluded that the income ground was established in light of that difference.[25]
Is it just and equitable to depart?
[24] TD [70]
[25] TD [70]
The Tribunal referred to the factors in s.117(4) of the Assessment Act that must be considered when determining whether it is just and equitable to depart from an administrative assessment.[26] The Tribunal made these findings in relation to this issue:
[26] TD [71]
a)the father’s net asset position, inclusive of superannuation, was approximately $450,000;[27]
b)the mother’s net asset position, inclusive of superannuation was approximately $562,867;[28]
c)neither party had a commitment to support anyone other than themselves and the children;[29]
d)both parents expected the child in issue would be educated in the private school system;[30]
e)the father has the capacity to contribute to 50 per cent of the child’s school fees,[31] with precise figures of the amount payable from April 2018 to March 2021 calculated by the Tribunal at [92].
f)the children’s costs are not otherwise different from the standard figures used in the “Costs of the Children” table;[32]
g)the Tribunal reiterated its earlier finding that the father, not the grandfather, exercises effective control over the business which means that the father has access to financial resources over and above his taxable income;[33]
h)the Tribunal’s proposed decision would not cause hardship to either party.[34] The father would have capacity to pay his child support payments noting that its proposed decision would reduce the annual child support payable under the objection decision by approximately $700 per annum.[35] The mother’s income was sufficient to meet her outgoings.[36]
Is it otherwise proper to depart
[27] TD [73]-[79]
[28] TD [80]-[83]
[29] TD [87]
[30] TD [90]
[31] TD [90]
[32] TD [94]
[33] TD [96]
[34] TD [99]
[35] TD [97]
[36] TD [98]
The Tribunal summarised the factors in s.117(5) of the Assessment Act that must be considered when determining whether it is otherwise proper to depart from an administrative assessment.[37]
[37] TD [105]
The Tribunal found that it was otherwise proper to make the proposed determination in circumstances because it would result in an appropriate apportionment of financial responsibility for the children as between the parents and the community.[38]
[38] TD [106]
Other issues
The Tribunal decided to implement its decision from the date it was made so as to avoid the possibility of arrears or overpayments.[39]
[39] TD [101]
The Tribunal set an end date for its decision of 30 November 2021 to give the parties certainty into the future regarding the father’s ATI for child support purposes and his contribution to the child’s school fees.[40]
[40] TD [103]
Effect of Tribunal’s decision
The Tribunal decision provided for the objection decision under review to remain in place until 3 December 2019, from which time the following variations were to apply to the administrative assessment as set by the objection decision:
a)for the period 4 December 2019 to 30 November 2021, father’s ATI was varied downwards from $85,000 to $76,000;
b)the father is also to make the following contributions each year to the costs of private education:
i)$4,169 for the period 4 December 2019 to 31 March 2020; and
ii)$4,271 for the period 1 April 2020 to 30 November 2021.
Jurisdiction
As the Tribunal decision in this matter was made by a Member, this Court has jurisdiction pursuant to s.44AAA(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). An appeal must be brought within 28 days of receipt of the Tribunal decision.[41]
[41] sections 44AAA(2) and 44(2A) of the AAT Act
Under s.163 of the Evidence Act 1995 (Cth), the Tribunal’s decision was deemed to have been sent to the father, five business days after the date of the Tribunal’s 11 December 2019 notification letter, being 18 December 2019 . The Notice of Appeal was filed with the Court on 15 January 2020, which was within time.
Consistent with the previous appeal regime under s.110B of the Child Support (Registration and Collection) Act 1988 (Cth) (Collection Act), an appeal under s.44AAA of the AAT Act is limited to an appeal “on a question of law”. In other words, the Court’s jurisdiction is only enlivened by a question of law properly raised on appeal.
The Full Family Court provides the following summary of the applicable principles in child support appeals in Child Support Registrar & Crabbe & Anor[42] at [54]:
a)the question of whether there is evidence to support a finding of fact or an inference drawn from findings of fact is a question of law[43];
b)the making of a finding of fact or the drawing of an inference in the absence of evidence is an error of law;[44]
c)a wrong finding of fact is not an error of law;[45]
d)a finding of fact based on reasoning that is “demonstrably unsound” or on an “illogical course” or a “faulty process” of reasoning is not an error of law;[46]
e)judicial review is not to be over zealous in seeking to find inadequacy of reasoning by an administrative decision-maker; the review of the reasons of an administrative decision-maker must not be turned into a reconsideration of the merits of the decision.[47]
[42] [2014] FamCAFC 10
[43] Minister for Immigration v Al-Miahi (2001) 65 ALD 141
[44] Al-Miahi at [34]
[45] Al-Miahi at [34] but see Acuna Plaza v Minister for Immigration (No 2) [2019] FCA 424
[46] Al-Miahi at [34] but see Minister for Immigration v SZMDS (2010) 240 CLR 611
[47] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
A question of law should be stated with precision, as it is the question that enlivens the Court’s jurisdiction.[48]
[48] Haritos v Commissioner of Taxation [2015] FCAFC 92 at [62]
Evidence and submissions
This matter came before me for a final hearing on 3 September 2020. At the outset, I called upon the solicitor for the Registrar to explain to the parties the limited nature of judicial review of the Tribunal’s decision, the role of the Registrar as a party, the restrictions on the receipt of evidence bearing upon the Tribunal decision, and the potential issue of costs.
Both the solicitor for the Registrar and I explained to the parties that the Court should not receive evidence which post dates the Tribunal decision because it cannot assist the Court in determining the validity of that decision. Further, the solicitor for the Registrar noted, and the father confirmed, that a fresh application for a child support assessment had been made by him following a change in circumstances (unemployment). The father stated that he had received a telephone call from someone in the Child Support Agency stating that a new decision had been made stipulating a lesser child support obligation and he was awaiting written confirmation of this. That is all beyond the scope of this proceeding, save that, as explained to the parties, it counts further against a stay of the Tribunal decision.[49]
[49] see below at [46]
I explained to the parties that I would accept the Registrar’s submissions concerning the receipt of evidence.
Transcript
The parties were given the option of providing a transcript of the hearing before the Tribunal (Orders 3 and (4e) of the Orders of Judge Kendall dated 13 February 2020). The father has annexed a copy of the transcript of the Tribunal hearing to his affidavit filed 21 July 2020. The Registrar did not oppose the transcript being admitted into evidence, and I received it.
T-documents
The T-documents in this matter were 1,450 pages in length together with 50 pages of documents that were tendered at the hearing.[50] The parties have chosen to put essentially none of that evidence before this Court.[51]
[50] TD [7]-[8]
[51] see Order 4(d) of the orders of Judge Kendall dated 13 February 2020 when read with the email to the parties from my associate dated 8 May 2020
Father’s documents
The father has however filed and/or served the following documents:
a)an affidavit by himself filed on 15 January 2020 which relevantly annexes:
i)a one-page document in the nature of submissions (entitled “Document I”);
ii)a financial statement of the father dated 14 January 2020; and
iii)an undated and one-sentence long “to whom it may concern” letter from the grandfather;
b)a statutory declaration of a male person dated 28 April 2020;
c)a statutory declaration of a female person dated 28 April 2020;
d)a statutory declaration of the grandfather dated 28 April 2020;
e)a statutory declaration of a male person dated 27 April 2020;
f)a statutory declaration of the father dated 28 April 2020 annexing:
i)a document entitled annexure “A – Agreement for purchase of business dated 30 August 2013”;
ii)a document entitled “Annexure B – company A, December 2019, Page 1”;
iii)a document entitled “Annexure C”, being a child support account statement dated 18 April 2020;
iv)a document entitled “Annexure D” which appears to be an extract from an affidavit filed in the Family Court of Western Australia in August 2018; and
v)a document entitled “Annexure E” which appears to be pages 11, 14, 20 and 27 of an affidavit filed by the father in Court proceedings on 6 February 2017;
g)affidavit of the father made on 20 July 2020 which annexes:
i)a document entitled annexure “F” which is the copy of the transcript of the Tribunal hearing referred to above;
ii)a document entitled annexure “G” which the father describes as page 16 of a “trial transcript” and which seems to relate to Family Court of Western Australia proceedings between the parties; and
iii)a document entitled annexure “H” which is a letter “to whom it may concern” from a named person in the Country B which is dated 20 July 2020.
I accept the Registrar’s submission that the father has misunderstood the nature of these proceedings in circumstances where:
a)almost none of the 1,500 pages of evidence that was before the Tribunal has been placed before this Court; and
b)almost all of the evidence that has been placed before this Court either postdates the Tribunal’s decision and/or was not in evidence before the Tribunal.
The Registrar objected to the admission of all of the father’s evidence referred to above but for certain documents referred to below. The objection was made because:
a)the evidence postdates the Tribunal’s decision and therefore cannot bear upon the correctness of the Tribunal’s decision in law.[52]
b)evidence of that nature is therefore not admissible;[53] and
c)it is not open to the father to rely on developments subsequent to the Tribunal’s decision to “challenge” the findings of the Tribunal.[54]
[52] Daley v Secretary, Department of Social Services [2017] FCA 230 at [19]
[53] AIM15 v Minister for Immigration [2017] FCA 734 at [31] citing MZXHY v Minister for Immigration [2007] FCA 622 at [8]
[54] ECJ17 v Minister for Home Affairs [2019] FCA 2121 at [66] citing NAHI v Minister for Immigration [2004] FCAFC 10 at [15]
I accepted the Registrar’s submission subject to the following caveats:
a)the document entitled annexure “A – Agreement for purchase of business dated 30 August 2013” was before the Tribunal (T1018-1027) and therefore is admissible;
b)the body of the affidavit referred to above at [33(a)] is in the nature of submissions rather than evidence. However, the submissions therein are directed to the grounds and questions of law in the original application which have since been abandoned by the father;
c)the statutory declaration referred to at [33(f)] is structured as a response to many of the paragraphs in the Tribunal’s decision. For example, [4] of the statutory declaration reads as follows in relation to [24]:
There are also [goods] that are sold and stocked but I am even more unfamiliar with how they may be advertised and marketed.
It is unclear what the Court could do with this information. This Court can intervene in respect of an erroneous factual finding where there was no evidence before the fact-finder, at all, to justify the relevant finding of fact.[55] That category of error, however, “cuts out when even a skerrick of evidence appears”.[56] Alternatively, it might be argued that the error was so fundamental that it determined the outcome and hence went to jurisdiction. This Court has no way of determining whether an error of those categories was made by the Tribunal because the father has chosen to put less than 1 per cent of the evidence that was before the Tribunal into evidence in this Court (ten of the 1,500 pages of T-documents).
[55] Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707 at [575] (Weinberg J)
[56] MZZYE v Minister for Immigration [2015] FCA 1378 at [54] (Murphy J)
The Court has a duty to ensure that the proceedings are fair in light of the father’s status as a self-represented litigant, however, it has recently been held that this duty does not oblige the Court to “undertake a partisan analysis of lengthy, unstructured assertions and misconceptions with a view to ensuring that a self-represented litigant has not missed some arguable point”.[57] The Registrar therefore submits and I accept that it is not the function of this Court or the Registrar to:
a)determine which parts of the statutory declaration are submissions and which are evidence;
b)of the evidence in the document, determine which of that was before the Tribunal and which was not; and
c)where submissions are made in the statutory declaration as to a relevant finding in the Tribunal’s decision having no evidential basis, figuring out whether that is true by reading the 1,500 pages of material that was before the Tribunal as well as the 50+ page transcript of the Tribunal hearing.
Mother’s documents
[57] Mendonca v Legal Services Commissioner [2020] NSWCA 84 at [21] per McCallum JA (Basten and Leeming JJA agreeing)
The mother has filed the following documents:
a)notice of cross-appeal filed on 4 June 2020 which relevantly comprises:
i)five proposed orders; six questions of law; and 77 grounds of appeal. The legal components of the notice of cross-appeal (as opposed to the evidential components) are dealt with below.
ii)an income tax return for the father for the financial year ended 30 June 2013;
· this document was before the Tribunal and is therefore admissible.[58]
[58] T142
iii)statements for a bank account jointly held by the parties with the ANZ Bank. The statements cover the period 17 May 2013 to 10 January 2014;
· these documents were before the Tribunal and are therefore admissible;[59]
iv)an extract from the Company C Family Trust financial statements for the financial years ending 30 June 2014; 2015; 2016; 2017 and 2018;
· these documents were before the Tribunal and are therefore admissible;[60]
v)a subsequent COA decision of the Registrar dated 20 April 2020;
· this document was not before the Tribunal and is therefore inadmissible for the reasons explained above;
b)affidavit of the mother filed on 7 August 2020 which relevantly annexes:
i)statements 83, 84, 86, 89 and 90 of the parties joint home loan account with the ANZ Bank. The statements cover the period 1 July 2016 through to 30 June 2020 (though the statements 85, 87 and 88 which fall within that period have not been provided)
· statement 83[61] was before the Tribunal and is therefore admissible.
[59] T116-120
[60] T234, 236-237, 239-240, 242-243, 249-251
[61] T941-942
The other statements were not before the Tribunal and are therefore not admissible for the reasons explained above.
Consideration
The father confirmed at the outset of his submissions that he was relying upon his notice of appeal as amended on 28 April 2020.[62]
[62] filed on 14 May 2020
In his oral submissions, the father focused on the Tribunal’s reasoning in relation to the transfer of ownership of the business from the father’s family trust to the grandfather’s family trust (the grandfather’s family trust) and the father’s employment arrangement entered into as part of that transfer. The father disputes that he plays a critical role in the business or that he regularly travels overseas. He maintains that his hours of work in the business were, at the time of the Tribunal decision, minimal and that it was an error for the Tribunal to draw on the minimum wage as a guide to the determination. As I explained to him, for the most part the father’s submissions challenge the merits of the Tribunal decision by reference to its reasoning process. While he asserts factual errors by the Tribunal, these are not of sufficient quality in my view to amount to a legal error. In substance, the Tribunal was presented with financial arrangements put in place by the father which were opaque. The Tribunal did the best it could, on the basis of the material before it, to make a rational assessment of his liability in the face of those arrangements.
I agree with and adopt the Registrar’s submissions on the orders sought by the father and his grounds of review.
The notice of appeal asks the Court to make these orders:
1. A stay on all child support payments until the determination of the appeal.
2. The appeal be allowed.
3. The [TD] be set aside.
4. The taxable income of the applicant to be as assessed by the Australian Taxation Office.
5. Alternatively, the matter is remitted back to the Tribunal for a rehearing.
6. Costs.
It is not appropriate for this Court to make Order 4. The appropriate order to be made (if the Court were to find an error of law in the Tribunal decision) would be for the Court to set aside the Tribunal decision and remit the matter back to the Tribunal for redetermination according to law.[63]
[63] Ely v Ely & Anor [2019] FCCA 503 at [77]-[78] (Judge Terry)
I declined to make the stay order sought by Order 1. There is a power to stay the Tribunal decision under s.44A(2) of the AAT Act, which allows the Court to stay the operation or implementation of the decision to secure the effectiveness of the appeal. However, s.44A(2) provides no power to restrain the Registrar from performing her statutory function such as collecting child support payments. There is such a power found under s.111C of the Collection Act, however, there is no jurisdiction to order a s.111C stay as part of a s.44AAA appeal.[64]
[64] Lloyd v Tasker & Anor [2016] FCCA 297 at [12]
The following factors have been held to be relevant to the exercise of a s.44(A)(2) of the AAT Act to grant a stay pending the outcome of an appeal from a decision of the Tribunal:
a)as a general rule the successful party is entitled to the benefit of the judgment which is presumed to be correct;
b)the applicant bears an onus to demonstrate a proper basis for a stay;
c)although speculation as to the prospects of success is generally unnecessary, a stay will not be granted in the absence of arguable grounds of appeal or where the appeal is not bona fide;
d)on the other hand, if it appears that the prospect of success is strong, this may in the circumstances of the particular case be a relevant factor to consider in exercise of the discretion and may interact with considerations of balance of convenience; if the prospect of the appeal succeeding is particularly strong then the appellant may have to show less in terms of balance of convenience;
e)all other things being equal, a stay will generally be granted if, but for a stay, the appeal would be rendered nugatory if the appeal is successful;
f)considerations such as the balance of convenience and the competing rights of the parties and the effect of granting or not granting the stay on non-parties are to be weighed in the balance.[65]
[65] Chen v Secretary, Department of Social Services [2019] FCA 1155 at [28] (Abraham J)
I accepted that a stay is not necessary on the basis that if the decision is not stayed and the appeal is successful, the decision on appeal would not be rendered nugatory. The Child Support Scheme is designed to accommodate changes to the liability, providing mechanisms for the collection and recovery of arrears and/or overpayments following any amendment to the assessment. In the present case, it appears that the process is once again under way.
The father’s questions of law and grounds of appeal
The notice of appeal contains six questions of law and 15 grounds of appeal. It is not clear which questions of law relate to which grounds of appeal. A question of law should be stated with precision as it is the question that enlivens the Court’s jurisdiction.[66] Not only is there a lack of precision in the father’s questions of law, they are not even questions. They are instead propositions, which are not capable of being answered by the Court or meaningfully responded to by the Registrar.
Questions of law
[66] Haritos at [62]
The questions of law assert that the Tribunal erred in finding that the “ground referred to” in each of the following sections of the Assessment Act was “made out”:
a)section 117(2)(c)(ia): The Tribunal gave detailed reasons at [13]-[70] in support of its conclusion that this ground was made out. It is not at all clear from this question of law why it is said that the Tribunal’s conclusion was not open to it;
b)sections 98C(1)(b)(ii)(A) and 117(4): There is no “ground” in these sections and the Tribunal did not find that that they were “made out”. The sections set out the matters the Tribunal must consider in determining whether it is just and equitable to make a certain departure determination. The Tribunal’s decision confirmed that it used the sections in that way.[67] It is not apparent from the question of law how it is said that the Tribunal erred in its application of these sections;
c)section 117(7B): There is no “ground” in this section and the Tribunal did not find that it was “made out”. The section empowers the Tribunal to, in certain circumstances; determine that a parent’s earning capacity is greater than is reflected in their income. The Tribunal determined at [86] that it could not make such a finding in this case. That finding was favourable to the father;
d)section 117(6): There is no “ground” in this section and the Tribunal did not find that it was “made out”. The section required the Tribunal to consider, when determining the proper needs of the children, the manner in which they are being, and in which the parents expected them to be, cared for, educated or trained, and any special needs they may have.[68] The Tribunal’s relevant finding in that regard was that the parties expected their younger child to be educated in the private school system.[69] That was a finding that was certainly open to the Tribunal in light of the evidence summarised at [89];
e)section 117(9): There is no “ground” in this section and the Tribunal did not find that it was “made out”. This section simply empowered the Court to have regard to other matters that it considered to be relevant when determining what departure determination to make. The Tribunal used this section in a way that was open to it at [101]-[104]. The fact that the father would have preferred for the Tribunal to have used it in a different way does not reveal error on behalf of the Tribunal.
[67] TD [71]-[99]
[68] TD [88]
[69] TD [90]
Grounds of appeal
The first ground is:
The Tribunal erred in law by making a finding of fact at [96] that the [father] exercises effective control over the business concluding he has further financial resources when there was no evidence to support such a finding and that finding that the [father] had financial resources above his taxable income was a material finding in the Tribunal’s conclusion as to the [father’s] monies to hand which he could use to cover his daily costs.
The evidential basis of the Tribunal’s finding at [96] that the father, rather than the grandfather, exercises effective control over the business which means that the father has access to financial resources over and above his taxable income, is set out by the Tribunal in detail at [15]-[57]. The fact that the father disagrees with the ultimate inference drawn by the Tribunal from its review of that evidence (that is, that the father exercises effective control over the business), does not mean that there was “no evidence” upon which that finding could be made. As noted earlier, only a “skerrick” of evidence is required to defeat such an allegation of error.
The second ground is:
The Tribunal erred when they failed to consider evidence before them, evidence available to them and the particular circumstances of the [father’s] case that would have reflected the [father’s] true income not the income determined by them.
The fact that the Tribunal preferred some evidence over other evidence does not meant that the Tribunal’s finding was erroneous. It is apparent from the relevant paragraphs of [58]-[62] that the Tribunal’s finding as to the father’s income had a proper evidential basis.
The third ground is:
The Tribunal has wrongly assumed that the [father] described himself as “manager – general” for those tax returns in question and did not query the [father] as to his opposing verbal and written contradictions elsewhere.
This ground does not allege a known type of error of law. It is unclear whether the “opposing verbal and written contradictions elsewhere” were actually in evidence before the Tribunal. The Tribunal was, in any event, aware that the father had described his role within the business as an “installer” on other occasions.[70]
[70] TD [39]
The Tribunal’s actual finding at [40] was that “the Tribunal considers that when describing himself as the manager – general, as the father did on his tax returns, this better reflects his role in the business on a day to day basis.” As is apparent from that sentence, the finding clearly had an evidential basis. It is implicit in the ground that the father accepts that he did describe himself as a “manager – general” in the relevant tax returns.
The fourth ground is:
The Tribunal has questioned the [father] enough to conclude along with a narrow interpretation of the [mother’s] information but did not go further to seek to establish the [father’s] position. The proprietor’s roles weren’t investigated. The gammit of purchasing wasn’t investigated before concluding the [father’s] contribution as critical.”
It was for the father to make out his case.[71] The father has not explained why he asserts the Tribunal was under a duty to inquire in the manner referred to in this ground, nor why a failure to comply with it should lead to the conclusion that the Tribunal committed an error of law. By operation of s.33 of the AAT Act, the Tribunal was under no such obligation to engage in a free-ranging enquiry into these topics, nor did it commit an error of law by not undertaking that course of action. There is also no evidence before this Court that the father actually asked it to make the investigations referred to in this ground.
[71] Abebe v Commonwealth [1999] HCA 14 at [187]
There is no suggestion in this ground that the findings the Tribunal actually did make about the topics referred to in the ground lacked an evidential basis in terms of the material that was before the Tribunal.
The fifth ground is:
The Tribunal never established that the [father] did anything more than installing and an aspect of purchasing yet it allocated the annual profit of the business to [the father] [62].
The relevant finding of the Tribunal was that the father exercised “significant financial control over the business”.[72] The Tribunal was not required to make the finding referred to in this ground before it made the finding it made at [57]. The Tribunal gave detailed reasons for why it reached that conclusion at [15]-[57]. The consequential findings the Tribunal then made as to the father’s income at [58]-[62] also do not want for an evidential basis. The father’s argument that a different finding should have been made amounts to no more than a request for this Court to engage in impermissible merits review.[73]
[72] TD [57]
[73] Wu Shan Liang at 272
The sixth ground is:
In that same calculation the Tribunal also included the electricity rebate though it is not a taxable income by the ATO as child support uses. In contrast is considered the male total average weekly earnings figure [61] because it was used in child support legislation.
The father has not explained why the Tribunal was not allowed to proceed in the manner it did as referred to in these grounds. The Tribunal was entitled to “inform itself on any matter in such manner as it thinks appropriate”.[74] The Tribunal explained why it used those pieces of information in the way it did at [46], [49], [61]-[62]. No error is apparent from that analysis.
[74] section 33(1)(c) of the AAT Act
The seventh ground is:
The only actual hours supplied [26] have been dismissed by the Tribunal rather than re-evaluate earlier qualified figures.
Paragraph [26] is simply a recitation of evidence given by the father. The Court cannot meaningfully engage with the allegation of error in this ground without the relevant evidence being placed before the Court. The ground does not, in any event, appear to allege an error, let alone one that is of a kind that would lead to the Tribunal’s decision being set aside.
The eighth ground is:
The initial application for a change of assessment began 13 July 2018 but the decision has only been made for the period from 4 December 2019 missing the recalculation due prior and disadvantaging [the father].
This ground is no more than a request for merits review in respect of the Tribunal’s application of s.117(9) of the Assessment Act.[75] The fact that the father would have preferred a different outcome than that which was reached by the Tribunal at [100]-[104] does not mean the Tribunal erred.
[75] Ibid
The ninth ground is:
The Male Total Average Weekly Earnings is utilised by the Tribunal without considering scaling it proportionally to reflect either the actual hours worked or the earlier approximated hours, falsely inflating the final figure.
The MTAWE was not the actual basis of the Tribunal’s finding as to the father’s income.[76] The MTAWE was instead used as a “check” in relation to the figure it had calculated using evidence before it that specifically concerned the father. The income finding made by the Tribunal clearly had an evidential basis.
[76] TD [62]
The complaint about the figure not being scaled down to reflect the hours actually worked by the father overlooks the fact that the Tribunal did not accept the father’s evidence on that topic.[77] For the reasons set out in those paragraphs of the decision, the relevant factual findings did not lack an evidential basis.
[77] TD [40]-[42], [50], [52]-[53], [57]
The tenth ground is:
Both letters [29][30][32] provided to confirm outside activities the [father] had moved into as his work decreased, had been ignored in light of his approximation of the 20-30 hours [31] rather than compared to the actual recent hours provided.
The relevant evidence was not ignored, rather, the Tribunal simply preferred other evidence before it as to the amount of hours the father worked. The weighing up of the evidence before it to make findings of fact was part of the Tribunal’s function as the decider of fact. This ground is nothing more than a request for this Court to make different findings of fact, which in turn is no more than a request for impermissible merits review.[78]
[78] Wu Shan Liang at 272
The eleventh ground is:
The hourly rate of $17.98 is wrongly compared to the minimum adult wage rate [51] when the annualised rate for $27,989 is the actual figure paid. The true hourly rate is therefore $19.44, which is above the award rate not below as determined.
The comparison the Tribunal actually made was between the hourly rate listed on a payslip in evidence before it and the minimum wage hourly rate set by law. The father’s actual annual pay was not relied on by the Tribunal in that analysis. In any event, the inferences the Tribunal then drew from that finding as to the father’s hourly rate in the remainder of [51] still holds true even if the figure nominated by the father is used. Those inferences were that it was not credible that the father was paid at such a low hourly rate, and had no other source of income, given:
a)the father’s knowledge and skills were critical to the success of the business;
b)the fact that the father was working for the grandfather, from whom the father said he had to borrow regularly just to make ends meet;
c)the grandfather owns a number of businesses and was in a financial position to regularly loan the father money.
That inferential reasoning provided a sound basis for the Tribunal’s conclusion in the final sentence of [51] that the arrangement between the father and the grandfather as to the father’s hourly rate of pay was “an arrangement that has been made with child support in mind”.
The twelfth ground is:
The father was advised after the Tribunal, that the mother had made application to Child Support due to the younger son being 100% with the mother. This created a further debt the father was unaware of at the Tribunal.
As referred to above, it is not open to the father to rely on developments subsequent to the Tribunal’s decision to falsify the findings of the Tribunal.[79]
[79] ECJ17 at [66] citing NAHI at [15]
The thirteenth ground is:
The [father] did not go to Country D to get prices. The Tribunal seems to have misunderstood his response.
The Court has not been given all of the evidence that was before the Tribunal so the Court cannot assess whether a misunderstanding has occurred as alleged in this ground. The relevant three words from one sentence of the Tribunal’s decision (“He said he saw people in Country D to get prices and samples, and it was usually the same people each trip”) does not reflect a factual finding made by the Tribunal. The Tribunal is simply recounting his evidence, and it did so in a way that was accurate.[80] “Get prices” is an exact quote of the father.[81] The finding actually made by the Tribunal about the father’s activities in Country D was that the father represents the business overseas.[82] The specific business tasks he did whilst in Country D were not important.
[80] see transcript page 11 from line 38 to page 12 at line 1
[81] Ibid, page 11 at line 43
[82] TD [40]
The fourteenth ground is:
The Tribunal has also marginalised the [father’s] response regarding quality control.
The Tribunal recorded this exchange between it and the father at the hearing at [21]: “The Tribunal asked if he was doing quality control and he agreed that was the case”. It is unclear how that sentence reflects error on behalf of the Tribunal. It was certainly an accurate recitation of his evidence.[83] As noted above, the relevant finding actually made by the Tribunal was that the father represents the business overseas.[84] The specific activities he undertook whilst on those trips were not a factor that was important to the Tribunal’s analysis.
[83] transcript page 12 at lines 4 through 10
[84] TD [40]
The fifteenth ground is:
The [father] did start the arrangement whereby overseas based staff did the online work [25][40] as stated, but only when he was previously the owner not when employed by the current owner. The Tribunal is confusing the [father’s] response to whether he also was responsible for the decision to only employ [people from Country E]. Again, after contemplation, that was also yes, but as the previous owner, not as the current employee, as the Tribunal appears to believe.
The relevant evidence begins at page 14 from line 29 of the transcript. It does not appear to be the case that the Tribunal’s summary of that evidence at [25] and [40] (“The father said he thought he started the arrangement whereby overseas-based staff did the online work” and “the father also said he believed he started the arrangement to have overseas employees”) was not open to it. In any event, the two impugned sentences at [25] and [40] simply recount evidence given by the father, so it cannot be the case that the findings, if that is what they were, lacked an evidential basis.
Mother’s notice of cross-appeal
Once the nature of the proceedings was explained to her, the mother’s cross-appeal essentially fell away and she was left defending the Tribunal decision. Her oral submissions were quite wide ranging, reflective of the state of the relationship between the parties and her view of the father’s lack of frankness concerning his real financial circumstances.
I agree with and adopt the Registrar’s submissions concerning the mother’s cross-appeal.
The notice of cross-appeal asks the Court to make these orders:
1. The Father continues to pay child support, including private school fees, until [the subject child] completes his schooling at age 18.
2. The Decision of the Administrative Appeals Tribunal (Social Services & Child Support Division made on 11 December 2019 be upheld.
3. The Decision of the Child Support Agency made on 20 April 2020 be upheld.
4. If either or both of the Decisions of the Administrative Appeals Tribunal and Child Support Agency are not upheld, that the assets, business entities and family trusts of [the grandfather] be considered to assess [the father’s] true financial position.
5. Costs.
It is not appropriate for this Court to make Orders 1 or 4. The appropriate order to be made (if the Court were to find an error of law in the Tribunal decision) would be for the Court to set aside the Tribunal decision and remit the matter back to the Tribunal for redetermination according to law.[85]
[85] Ely v Ely at [77]-[78] (Judge Terry)
It is also not appropriate to make Order 3 in circumstances where the Court does not have appellate jurisdiction in respect to decisions of the Registrar. If either of the parties is aggrieved with the decision of 20 April 2020 then they should have sought internal review and then, if still dissatisfied, applied for review in the Tribunal.
Questions of law and grounds of cross-appeal
The notice of cross-appeal contains six questions of law, which appear to be the inverse of the six grounds of appeal in the father’s amended notice of appeal. For example:
a)Ground 6 in the father’s notice of appeal: “The AAT erred in determining as it did that the ground referred to in section 117(9) were made out.”
b)Ground 1 in the mother’s notice of cross-appeal: “The AAT did not err in determining on the ground referred to in section 117(9).”
That means that the mother has not identified any errors by the Tribunal, let alone any questions of law amenable to being answered by this Court in the exercise of its appellate jurisdiction under s.44AAA of the AAT Act. In fairness to the mother, it appears to be the case that she is not actually agitating for the Tribunal’s decision to be set aside. Ground 1 in her notice of cross-appeal suggests that she does not believe the Tribunal made any errors of law. It appears to be that the mother is content for the Tribunal decision to stand, but if it is set aside, then she would wish to seek a different and more favourable child support outcome upon the redetermination of the matter. If the father had succeeded in establishing errors of law then it would be the function of the Tribunal to undertake the redetermination, not the Court.
The 72 grounds in the notice of cross-appeal are a mixture of evidence and assertions about factual matters and submissions about legal matters. Many of the grounds go to the merits of the underlying child support dispute between the parties as opposed to the legality of the Tribunal decision under review. If the grounds are in fact intended to be relied on as evidence then they will be inadmissible for that purpose if the same evidence was not before the Tribunal. There is no easy way of determining whether that is the case, but if the mother does not seek to impugn the Tribunal decision then the Court does not need to undertake that process.
Conclusion
I conclude that neither the father’s amended notice of appeal, nor the mother’s notice of cross-appeal succeeds. I will order that they be dismissed.
The Registrar seeks an order that the father pay the Registrar’s costs in accordance with the Court scale in the sum of $7,200. While the parties were warned that they were subject to the possibility of a costs order, I have not heard argument from the father on that issue and I will hear the parties as to costs when this judgment is handed down.
I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 25 September 2020
0
16
5