Sadler and Sadler and Anor (SSAT Appeal)

[2011] FMCAfam 1335

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SADLER & SADLER & ANOR (SSAT APPEAL) [2011] FMCAfam 1335

CHILD SUPPORT – An appeal pursuant to s.110B of the Child Support (Registration and Collection) Act 1988 (Cth), in respect of a decision of the Social Security Appeals Tribunal (SSAT) made in respect of two decisions of a delegate to “disallow” certain objections to the particulars of administrative assessments of child support.

Administrative Appeals Tribunal Act 1975, s.44(1)
Child Support (Assessment) Act 1989, s.55
Child Support (Registration and Collection) Act 1988, ss.103N(1)(a),110B
Federal Court Rules 2011, o.53
Federal Magistrates Court Rules 2001

Ashcroft & Ashcroft [2008] FMCAfam 1250
Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321
Bowes v Shand (1877) 2 App Cas 455
Charnock & Bullions [2008] FMCAfam 36
Child Support Registrar & Hill [2008] FMCAfam 708
Collector of Customs v AGFA-Gevaert Ltd (1996) 186 CLR 389
Comcare v Etheridge (2006) 149 FCR 522
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Francis v Lyon (1907) 4 CLR 1023
LDME v JMA (2007) 38 Fam LR 132
Rana v Repatriation Commission [2011] FCAFC 124
Sadler & Sadler (SSAT Appeal) [2009] FMCAfam 855
Thorpe & Thorpe [2008] FMCAfam 81
TNT Skypak International (Aust) Pty Ltd v FCT (1988) 82 ALR 175

Applicant: MR SADLER

First Respondent: MS SADLER

Second Respondent: CHILD SUPPORT REGISTRAR

File Number: BRC 3355 of 2009

Judgment of: Jarrett FM

Hearing date: 16 June 2010

Date of Last Submission: 16 June 2010

Delivered at: Brisbane

Delivered on: 7 December 2011

REPRESENTATION

The applicant appeared on his own behalf

Counsel for the First Respondent: Mr Black

Solicitors for the First Respondent: Sarah Cleeland Family Lawyers

Solicitors for the Second Respondent: Ms Nixon

ORDERS

1. That the decision of the Social Security Appeals Tribunal made on 23 December, 2009 be set aside.

2. Otherwise all outstanding applications be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Sadler & Sadler & Anor (SSAT Appeal) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRC 3355 of 2009

MR SADLER

Applicant

And

MS SADLER

First Respondent

CHILD SUPPORT REGISTRAR

Second Respondent

REASONS FOR JUDGMENT

1. This is an appeal, pursuant to s.110B of the Child Support (Registration and Collection) Act 1988 (Cth), in respect of a decision of the Social Security Appeals Tribunal (SSAT) dated 23 December, 2009. The SSAT’s decision was made in respect of two decisions of a delegate of the Child Support Registrar. Those decisions, made on 4 September, 2009 and 5 October, 2009, were to “disallow” certain objections to the particulars of administrative assessments of child support issued on 15 June, 2009 relating to the following periods:

   a)1 September, 2008 to 30 June, 2009; and

   b)1 July, 2009 to 30 November, 2009.

2. The SSAT set aside the “disallowance” decisions and remitted the matter to the Child Support Registrar for reassessment of child support in accordance with the SSAT’s decision. Whilst the appeal was successful, it was not successful on the grounds agitated by Mr Sadler, but rather for other reasons.

3. The applicant filed a Notice of Appeal on 22 January, 2010 and an Amended Notice of Appeal on 5 May, 2010.  The applicant raises eleven grounds of appeal, although one was abandoned by him.  Ten remain for consideration.

The Statutory Framework

1. A party may appeal a decision of the SSAT pursuant to s.110B of the Child Support (Registration and Collection) Act 1988.  That section is in the following terms:

   “A party to a proceeding before the SSAT under Part VIIA may appeal to a court having jurisdiction under this Act, on a question of law, from any decision of the SSAT in that proceeding.”

The Nature of this Appeal

1. The nature of an appeal under s.110B is not unlike an appeal pursuant to s.44(1) of the Administrative Appeals Tribunal Act 1975, although in both cases the term “appeal” is misleading. The proceedings are within the original jurisdiction of this Court: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 581; TNT Skypak International (Aust) Pty Ltd v FCT (1988) 82 ALR 175 at 178; Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 at [1].

2. The terms of s.110B of the Registration and Collection Act and s.44(1) of the AAT Act are similar and each provides a right of appeal “on a question of law”. Previous decisions of this Court have followed the jurisprudence developed in the Federal Court of Australia concerning the way in which appeals are dealt with under s.44(1) of the AAT Act: e.g. LDME v JMA (2007) 38 Fam LR 132; Ashcroft & Ashcroft [2008] FMCAfam 1250; Child Support Registrar & Hill [2008] FMCAfam 708; Charnock & Bullions [2008] FMCAfam 36; Thorpe & Thorpe [2008] FMCAfam 81.

3. In Comcare v Etheridge (2006) 149 FCR 522, Branson J (with whom Spender and Nicholson JJ agreed) summarised the nature of the right conferred by s.44(1) in the following terms:

   13 The nature of an appeal under s 44(1) of the AAT Act was considered in Birdseye v Australian Securities and Investment Commission [2003] FCAFC 232; 76 ALD 321 (‘Birdseye’) by Stone J and me particularly at [10]‑[18]. We expressed our approval of the observation made by Gummow J in TNT Skypack International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178 that an appeal ‘on a question of law’ is narrower than an appeal that merely involves a question of law. As his Honour pointed out, where an appeal lies ‘on a question of law’ the subject matter of the appeal is the question or questions of law. That is, the subject matter of the appeal is the question or questions of law stated as required by O 53 r 3(2)(b).

   14 The legislature, by creating a statutory right of appeal to a party to a proceeding before the Tribunal in the narrow terms of s 44(1), disclosed an intention to limit the capacity of the Court on an appeal under s 44(1) to review factual findings of the Tribunal. An appeal pursuant to s 44(1) is thus quite different from an appeal from a judicial body under s 24 of the Federal Court Act. An appeal under s 24 is an appeal by way of rehearing (see Poulet Frais Pty Ltd v The Silver Fox Company Pty Ltd (2005) 220 ALR 211 at [35]‑[47]). The subject matter of an appeal under s 44(1) of the AAT Act is (shorn of the requirement to determine what, if any, entitlement to relief flows from the answer to the question or questions of law) of the same character as the subject matter of a reference of a question of law to the Court made under s 45 of the AAT Act.

   15   In Birdseye Stone J and I also expressed approval of the observation of Ryan J in Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 527 that:

   ‘If the question, properly analysed, is not a question of law no amount of formulary like “erred in law” or “was open as a matter of law” can make it into a question of law.’

   16 A mixed question of fact and law is not a question of law within the meaning of s 44(1) of the AAT Act. Stone J and I observed in Birdseye at [18]:

   ‘In our view, O 53 r 3(2) discloses an intention that a question of law to be raised on an appeal from the Tribunal should be stated with precision as a pure question of law.  It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal.’

   17   Although recent amendments to s 44 of the AAT Act have given the Federal Court limited powers to make findings of fact (see s 44(7)‑(10)), this is a power available to be exercised after the Court has given consideration to the questions of law which constitute the subject matter of the appeal.  If the answers to those questions, or any of them, lead to relief being granted to the applicant, the limited power to find facts which is vested in the Court by s 44(7) may be exercised, where it is convenient to do so having regard to the factors identified in the subsection, to avoid the need for the matter to be remitted to the Tribunal for further consideration.

4. The most recent consideration of the approach to an appeal under s.44(1) of the AAT Act is to be found in the Full Court of the Federal Court’s decision in Rana v Repatriation Commission [2011] FCAFC 124. In that case Kenny, Stone and Logan JJ said:

   [11] The right of appeal conferred by s 44 of the AAT Act is a right to appeal to this court "on a question of law". The question of law is, as was emphasised by Gummow J when a judge of this court, the very subject matter of the appeal: TNT Skypak International (Aust) Pty Ltd v FCT (1988) 82 ALR 175 at 178 Recognising this, Ryan J in Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524 highlighted the importance of stating a question of law in the notice of appeal. This importance has been repeatedly emphasised in recent years by the Full Court in cases such as Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 at 324-325 (Birdseye); Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290 at 300-302 and Comcare v Etheridge (2006) 149 FCR 522 at 526-527. The need for a notice of appeal to specify a question of law is not just a matter of pleading. In the absence of a question of law there is no subject matter for the appeal and the court has no jurisdiction to entertain the proceeding.

   (my emphasis)

5. Whilst the cases dealing with appeals pursuant to s.44(1) of the AAT Act are instructive, it is necessary to not lose sight of the fact that those cases were decided in the context of the Federal Court Rules and o.53 in particular which requires the statement of the questions of law to be determined on the appeal in the Notice of Appeal. No such rule exists in the Federal Magistrates Courts Rules 2001.  However, as Halligan FM points out in LDME:

   28. Despite the focus in these passages on provisions of the Federal Court Rules that are not replicated in this Court’s rules, the underlying reasoning is nonetheless relevant, in my view, to a section 110B appeal.

   29. The basis and focus of a section 110B appeal is a question of law. The appeal is not one in which findings of fact per se can be called into question (Comcare v Etheridge [2006] FCAFC 27 at [14] per Branson J, with whom Spender and Nicholson JJ agreed). The Grounds of Appeal called for in the Notice of Appeal in this Court assume the provisions of s.110B. Thus, in my view the Grounds of Appeal to be set out in the Notice of Appeal should ideally be expressed in a way that enables the respondent and the Court to identify the question or questions of law sought to be raised by the appellant and the reasons why a finding for the appellant on that question or those questions should result in the orders sought in the Notice of Appeal being made.

   30. Notwithstanding this ideal, in my view this Court must have regard to the statutory requirement binding it to “proceed without undue formality” and to “endeavour to ensure that the proceedings are not protracted” (s.42, Federal Magistrates Act 1999), reflecting the objects of the Federal Magistrates Court Act (see especially s.3(2)(a) and (b)). The eschewing of undue formality is particularly significant in matters, such as child support matters, where unrepresented litigants are a significant phenomenon. The lack of representation of a s.44 appellant has been recognised in this Court as justifying some amelioration of the usually strict requirement in such appeals for the question of law to be stated in the Notice of Appeal (Burgess v Centrelink and Ors [2006] FMCA 1952 at [5] and [6]).

   31.    I am therefore of the view that an unduly legalistic or pedantic approach should not be taken in analysing the grounds of appeal stated in the Notice of Appeal.  Especially with unrepresented litigants, the Court must strive to identify from the case presented whether a question of law arises that may justify the orders sought and strive, consistent with the requirements of procedural fairness, to deal with the substance of the case.

   32.    Of even greater significance in my view is the guidance the above mentioned cases provide to the Court in deciding a section 110B appeal.  They illustrate the analysis and process of reasoning required in deciding such an appeal.

6. The present appeal was prosecuted by Mr Sadler on the basis of an amended Notice of Appeal filed on 5 May, 2010 in which the grounds of appeal are specified.  The amended Notice of Appeal specifies eleven grounds of appeal.  All purport to state a question of law, but none actually do so.  I will deal with each one in turn.

Question One – The lawful acceptance of the agreement

1. Paragraph 1.1 of the Amended Notice of Appeal frames the question of law as follows:

   The Question of law is whether the acceptance of the agreement (other than the take up of item 26) has been previously determined, and at law a contest as to its lawful or unlawful registration is denied under the Doctrine of Estoppel?

2. Although stated as a single question, this ground contains at least two questions, namely:

   a)whether the acceptance of the agreement (other than the take up of item 26) has been previously determined; and

   b)whether at law a contest as to the agreement’s lawful or unlawful registration is denied under the Doctrine of Estoppel.

3. The first question is a question of fact and so is not apt to be answered in this appeal.  The second is a question of mixed fact and law – the law as to estoppel (although no particular type of estoppel was identified) and the facts of this particular case as they are applied to the law.

4. The agreement referred to in the question is a child support agreement entered into by Mr and Ms Sadler on 29 May, 1999.  The agreement was lodged for acceptance by the Child Support Registrar and was accepted on 10 August, 1999.  The child support assessments that have been issued since that time have been based upon this agreement.

5. Mr Sadler’s difficulty with the Tribunal’s decision is that it refused to reconsider the acceptance by the Child Support Registrar of the child support agreement pursuant to which his child support was assessed.  That question had been considered by Slack FM in other proceedings between these parties concerning this agreement (Sadler & Sadler(SSAT Appeal) [2009] FMCAfam 855). In his decision, Slack FM recorded that:

   26.    Of greater concern is the merit in the application.  It is not in dispute in these proceedings that:

   (a)    A child support agreement was lodged and accepted by the Agency in the form copied at pages 68 to 71 of the s.110K documents.

   (b)    In answer to the question at Box 26 of the document Are the above payments to be adjusted on 1 July each year by an inflation factor? there is a mark in the Yes box and no mark in the No box. 

   (c)     The agreement was accepted and registered by the Child Support Registrar in accordance with the requirements of the Act at that time.

   (d)    After registration of the agreement, child support was paid by the respondent and each year on 1 July there was an adjustment by an inflation factor.

   27.    There was no objection by the applicant to the making of those payments until 2008.

6. As to the agreement, the SSAT in the current appeal said:

   2.  …Since about October, 2008, Mr Sadler has contested both the Registrar’s acceptance of the agreement in 1999, the manner in which the agreement has been construed and applied, and, in particular, the application of any inflation factor in the assessment of his child support liability.

   …

   7. In his letters of objection, Mr Sadler contests the Registrar's acceptance of the agreement. The material before the Tribunal shows that the agreement was accepted by the CSA and the parties were informed of this by notice dated 10 August 2009. In particular, Mr Sadler was notified of his objection rights in this context. At this time, Mr Sadler was also notified of an administrative assessment for the period 2 June 1999 to 30 June 1999 requiring him to pay an annual rate of child support of $10,400. From time to time, subsequent administrative assessments issued on the basis Mr Sadler's child support liability had been increased by reference to an inflation factor. The various assessment notices issued to the parties included a reference to the amount of periodic child support being adjusted on 1 July each year by the inflation factor given in the Child Support (Assessment) Act Regulations.

   8. The material suggests Mr Sadler first formally contested the application of an inflation factor in any assessment in October 2008. A series of administrative decisions and an appeal to the Federal Magistrates Court then followed.

   9.  By decision dated 13 March 2009, this Tribunal (differently constituted) affirmed a CSA decision of 5 January 2009 to refuse Mr Sadler's application for an extension of time within which to object to the decision dated 10 August 1999 relating to the acceptance of the agreement.

   10. Mr Sadler's appeal against this decision was formally dismissed by Slack FM on 25 August 2009. In the reasons for judgment, His Honour considered that Mr Sadler had been objecting to two decisions made by the CSA on 7 August 2008: a decision confirming the acceptance of a child support agreement made on 10 August 1999; and the child support assessment for the period 1 July 2008 to 31 August 2008.

7. The SSAT’s statement that Mr Sadler had been objecting to two decisions made by the CSA on 7 August 2008 is, arguably, not factually accurate.  What Slack FM said was:

   12.    The difficulty in this matter is identifying the decision that the applicant objects to.  There were, in fact, two decisions made on 7 August 2008 (pages 66 and 67 of the 110K documents).  One was a decision confirming acceptance of the child support agreement made on “10 August 1999” and the other was the child support “assessment” for the 2008 period named in the assessment.

   13.    The applicant does not seem to dispute that an agreement was entered into by himself and his wife with respect to child support obligations.  He does not seem to object to the decision to accept the agreement.  He objects to the way the Child Support Registrar has construed the agreement, in particular, the decision to include an adjustment for an inflation factor.

   (my emphasis)

8. However, his Honour goes on to say:

   16.    The reasons [of the SSAT] reveal that the decision appealed was a decision made by the Child Support Agency on 5 January 2009 to refuse an application for an extension of time within which to lodge an objection to a decision dated 10 August 1999 [to accept the child support agreement].

   17.    Whilst the SSAT approached the application for extension of time with due regard to principle, it did so on the basis that it was dealing with an objection to a decision made in 1999.  It is not immediately clear that that was the decision being objected to or that that was the only decision being objected to by the applicant.

   18.    In so far as that decision was concerned, I could not discern any error of law in the way that the SSAT approached the decision on the application to extend time to appeal against the decision of the Registrar to accept the agreement in 1999.

   (my emphasis)

9. In the present matter, the SSAT went on:

   12. As to the acceptance of a child support agreement in 1999, Slack FM found no error of law in this Tribunal's decision which effectively refused Mr Sadler an extension of time to object to the acceptance of the agreement: see paragraph 18 of the reasons.

   …

   16. … In the appeals currently before the Tribunal, Mr Sadler again seeks to dispute the acceptance of the agreement and its construction on the inflation factor aspect.  In the Tribunal's view, those questions have been dealt with by Slack FM.  Mr Sadler has been denied an extension of time to permit him to object to the acceptance of the agreement on 10 August 1999, because it has been determined there is no substantive merit to his objection. It is not for the Tribunal to review determinations of the Federal Magistrates Court. If Mr Sadler did not accept the Court's judgment, he had appeal rights. No appeal was lodged.

1. This ground of appeal, posed as a pure question of law, would perhaps look something like this:

   Is the Tribunal precluded by operation of law from reaching its own decision as to the lawfulness of the acceptance of the child support agreement by the Child Support Registrar given the decision in  Sadler v Sadler (SSAT Appeal) [2009] FMCAfam 855.

2. In my view, the answer to that question is “no”.  The conclusion that the acceptance of the agreement has occurred lawfully is a conclusion of fact and it is for the Tribunal to reach its own conclusions as to the facts.  In the circumstances here, no estoppel operates to bind the Tribunal to answer that issue of fact in any particular way.

3. However, the Tribunal discharged its fact finding function. In doing so it had regard to the decision of Slack FM. It was entitled to have regard to that matter. It is not a court bound by the rules of evidence: s.103N(1)(a) of the Registration and Collection Act.

4. The Tribunal took the view that the issue about the Registrar’s acceptance of the child support agreement on 10 August, 1999 had been determined by the SSAT (differently constituted) in its decision to refuse an application by Mr Sadler to extend the time within which to object to the decision to accept the agreement.  That Tribunal decision was the subject of an appeal to this Court that was unsuccessful.  The parties to the proceedings were the same in both cases.  Having been decided, the Tribunal in this case was entitled to take the previsions decisions about that matter into account.

5. No question of law is raised by this ground.  It must be dismissed.

Question two – Registrar entitled to construe inflation factor aspect, i.e. item 26

1. Mr Sadler concedes that this ground cannot succeed.  He accepts that having regard to the way in which the parties completed the child support agreement (as to which see below at paragraph 41 and following) the Child Support Registrar was entitled to conclude that he and Ms Sadler had agreed that an inflation factor was to apply from 1 July each year to the weekly child support payments that were otherwise payable under the agreement.

Question three – Parties intended inflation adjustment

1. Paragraph 3.1 of the Amended Notice of Appeal frames the question of law as follows:

   The Question of law is whether, at law, the intention of the parties to the agreement dated 24 May 1999, to have an inflation factor applied annually, has previously been fully determined and under the Doctrine of Estoppel the current ground of objection cannot be contested?

2. Again, although stated as a single question, this ground contains at least two questions, namely:

   a)whether, “at law”, the intention of the parties to the agreement dated 24 May, 1999 to have an inflation factor applied annually has previously been fully determined; and

   b)under the “Doctrine of Estoppel” the current ground of objection cannot be contested.

3. The words “at law” and “fully” add nothing to the question to help determine whether it truly raises a question of law.  In my view it does not.  Whether the true intention of the parties as evinced in their child support agreement has been determined by a court, is a question of fact.  What parties intend by a written agreement between them is a question of fact, to be decided objectively having regard to the words that they used. That question was answered by the Tribunal in this case when it decided that the parties did intend that an inflation factor should be applied annually.

4. Again, the second is a question of mixed fact and law – the law as to estoppel (although no particular type of estoppel was identified) and the facts of this particular case as they are applied to the law.

5. Whatever be the case, the questions are misconceived. As to the inclusion of the inflation factor in the agreement, the Tribunal held:

   13. As to the construction of the agreement, and in particular the inflation factor item, Slack FM noted that question 26 "Are the above payments to be adjusted on 1 July each year by an inflation factor?) was answered with a mark in the Yes box and no mark in the No box. It was also noted that the child support Mr Sadler had been assessed to pay since 1999 had, in fact, been adjusted by an inflation factor.

   14. Slack FM held that the Registrar was entitled to construe the agreement in the manner it had been: see paragraph 33 of the reasons. The Registrar had no power to vary the agreement: paragraph 35. Whilst the Yes box was marked with a cross instead of a tick, given there was no mark in the No box, the Registrar was not obliged to make further enquiries regarding the terms of the agreement: paragraph 37. In the result, Slack FM held there was no error by the Registrar in making the assessment of 7 August 2008: paragraph 40. This assessment, as had all previous assessments since August 1999, included an adjustment for inflation.

   15. Mr Sadler now contends the evidence before the Tribunal shows the parties had never agreed on an inflation factor adjustment. That position fails to appreciate the agreement on its face has been held to have been properly construed to provide for an inflation factor adjustment.

   16. In dismissing Mr Sadler's appeal, Slack FM considered the merits of the administrative assessment dated 7 August 2008 which included an inflation factor adjustment. Mr Sadler's objection on the inflation adjustment issue was found to be without substance. In the appeals currently before the Tribunal, Mr Sadler again seeks to dispute the acceptance of the agreement and its construction on the inflation factor aspect. In the Tribunal's view, those questions have been dealt with by Slack FM. Mr Sadler has been denied an extension of time to permit him to object to the acceptance of the agreement on 10 August 1999, because it has been determined there is no substantive merit to his objection. It is not for the Tribunal to review determinations of the Federal Magistrates Court. If Mr Sadler did not accept the Court's judgment, he had appeal rights. No appeal was lodged.

6. Slack FM decided that the Tribunal in the appeal before him had misunderstood Mr Sadler’s objection.  His Honour said:

   19.    The applicant, though, argues that this was not the objection that he made.  The primary application was to object to the child support assessment made by the Agency on 7 August 2008.

   20.    The decision that was appealed was a decision of the Registrar to make an assessment under the terms of the agreement which included an inflation adjustment factor for the child support assessment commencing 1 July 2008.

   21.    In other words, the applicant was objecting to the decision to include as part of any child support assessment an amount above $100 per week for the child support period commencing 1 July 2008.

   22.    The SSAT does not seem to have dealt with that part of his application for leave to bring the application out of time and in so far as there may have been error on the part of the SSAT, it is that they failed to deal with that part of the application.

7. His Honour moved to consider a re-exercise the discretion to grant the application for the extension of time applied for before the Tribunal on the basis identified in the paragraphs set out above.  In doing so he considered the merits of the proposed appeal to the Tribunal.  That meant a consideration of Mr Sadler’s argument that the term about annual increases for inflation was not part of the parties’ agreement.  His Honour stated the question as follows:

   32.    The question in this matter is whether there was any error on the part of the Child Support Registrar in assessing the child support in the way that occurred for the relevant child support period.

   33.    The only basis upon which the applicant challenges the assessment is that the Registrar has misconstrued the agreement.  The Registrar was, in my consideration, entitled to construe the agreement in the way that he/she did.

8. That is to say, the Registrar was entitled to construe the agreement as including the term about annual increases for inflation.

9. His Honour’s reasoning on this point is part of the ratio of his decision.  For the reasons given above in relation to ground 1, the Tribunal was entitled to take it into account and did so.  Far from demonstrating that the Tribunal considered itself bound as a matter of law from considering the question, the Tribunal made clear that it was not prepared to revisit the issue in the circumstances of this case where the relevant question was agitated and considered in a court.  Given that the Tribunal is not a court, is not bound by the rules of evidence and is the sole arbiter of fact, such a course was entirely open to it.

10. The ground must fail.  No question of law arises.

Question four – Are there other registered agreements?

1. Paragraph 4.1 of the Amended Notice of Appeal frames this question of law as follows:

The question of law is whether the Registrar was entitled to effect subsequent variations to the particulars first entered into the register on 10 August 1999?

1. Related to this question, I think, is question 6 posed by Mr Sadler in paragraph 6.1 of the Amended Notice of Appeal:

   The question of law is whether the Registrar and subsequently the Tribunal can at law make findings that the representations made in notices since 1999 be dismissed as errors, and conclude the representations made do not in any way infer a binding term of the agreement accepted on 10 August 1999?

2. The first respondent submits that question four is entirely misconceived and does not arise from the Tribunal’s decision. The Tribunal’s decision related only to administrative assessments covering the periods identified in its decision, namely 1 September, 2008 to 30 June, 2010.

3. However, the direction of the Tribunal was that reassessments occur “by reference to ABS inflation factors for full-time adult total weekly earnings since 1 July, 1999.” (paragraph 32 of the Tribunal’s reasons).  That direction required the Child Support Registrar to perform a series of calculations using an inflation factor which was different to that used by the Registrar from 1 July, 1999.  Although it was only the assessments in the period 1 September 2008 to 30 June, 2010 that were to be reassessed, by recalculating the inflation adjustment from 1 July, 1999, the Tribunal recognised there might be a “cumulative effect of using these different inflation factors”.  Thus, the period raised for consideration by Mr Sadler’s purported question of law is relevant.

4. It seems to me that the heart of Mr Sadler’s complaint under these grounds is that the Registrar adjusted the weekly payments of child support from 1 July each year by a factor which was not agreed to by the parties in the child support agreement.  Mr Sadler’s contentions were recorded by the Tribunal in its reasons.  However, before considering those contentions, it is necessary to record something about the parties’ child support agreement and the assessments issued pursuant to its terms.

5. The agreement is in the standard pre-printed form that was current when the parties made their agreement on 24 May, 1999.  It consisted of a series of questions which variously required the parties to complete information or to tick boxes.  Insofar as the question of an inflation factor is concerned, question 26 was relevant.  It was in the following form:

6. Are the above payments to be adjusted on 1 July each year by an inflation factor?     No □ Yes □

   (The inflation factor for each year is based on movements in average weekly earnings.  It is not based on the CPI)

7. As recorded by Slack FM in his judgement, the “Yes” box had a cross in it.  The “No” box was unmarked.  The Registrar interpreted the document as an agreement by the parties for the adjustment of weekly child support by an inflation factor on 1 July each year.

8. Subsequent child support assessments issued which recorded the date of the parties’ agreement as 10 August, 1999, which was the day on which the agreement was accepted by the Registrar, rather than the day of the agreement.  The letter confirming the Registrar’s acceptance of the agreement carries the words “The amounts shown above are to be automatically adjusted on 1 July, each year by the inflation factor given in the Child Support (Assessment) Regulations.” Moreover, the assessments issued from time to time may have carried a similar notation.

9. Of this issue, the Tribunal recorded as follows:

   17. Mr Sadler contended for a further child support agreement accepted by the Registrar which included a term for adjustment on 1 July each year by the inflation factor given in the Child Support (Assessment) Act Regulations. This form of words was included in the various notifications of administrative assessments since August 1999. In particular, these words were included in the assessment notices dated 15 June 2009 for the periods 1 September 2008 to 30 June 2009 (p 63 of Ex 2) and 1 July 2009 to 30 November 2009 (p 80 of Ex 2). Both of these notices refer to a child support agreement made on 10 August 1999, which is in fact the date the agreement dated 24 May 1999 was accepted by the Registrar. It seemed to be Mr Sadler's position that the adjustment by the inflation factor given in the Regulations was a term of this further child support agreement.

   18. There seems little doubt that Mr Sadler has been misled by the unsatisfactory content of the notices in making his submission as to a further agreement. The agreement in fact accepted by the Registrar was dated 24 May 1999. Under that agreement, the inflation factor provided for was to be based on movements in average weekly earnings. The Tribunal is satisfied that this is the only child support agreement that has been accepted by the Registrar. The references in the notices to an agreement made on 10 August 1999 and adjustment on the basis of an inflation factor in the Regulations are clear errors as to the content of the notices.  These unfortunate errors do not give rise to any further child support agreement between the parties which has been accepted by the Registrar, nor any term in the agreement of 24 May 2009 importing a reference to any adjustment for inflation under the Regulations.

   19. It was Mr Sadler's submission that since the Regulations relating to an inflation factor became redundant after 30 June 1999, this term (referred to in the assessment notices) failed so that any assessment above $100 per week after March 2008 was incorrect. The Tribunal's finding that the erroneous inflation factor reference in the notices did not import any such term into the agreement means this submission necessarily fails.

10. The Tribunal’s findings recorded in paragraph 18 were clearly open on the material before it.  More than that, they are undoubtedly correct.  The agreement made between the parties on 24 May, 1999 was that the weekly amounts of child support were to be adjusted on 1 July of each year by an inflation factor based upon movements in average weekly earnings (not CPI).  To the extent that weekly child support has been adjusted by any other factor, the Registrar has not acted upon the parties’ agreement.

11. In his detailed submissions (filed as an affidavit on 2 February, 2010 and described as “annexure 5”), Mr Sadler contends that each time the Registrar amended the assessments to reflect the adjustment by an inflation factor there was an unlawful variation to the Child Support Register by the Registrar because the inflation factor used was not “movements in average weekly earnings” but was something else to which the parties had not agreed.  He seeks that “the original agreement be reinstated within the register thus eliminating the unlawful variations subsequently made.”

12. I agree with the first respondent’s submissions on ground four. No question of law is raised and the ground is misconceived. The Registrar was entitled to effect changes to the particulars recorded in the Child Support Register each time there was a change to those particulars.  Indeed the Registrar was obliged to record such changes.  The answer to the question posed by Mr Sadler is “Yes” (assuming that it might be construed as a question of law).

13. Further, whilst ground six does not raise questions of law about the power of the Tribunal and the interpretation of the child support agreement between the parties.  At best it raises issues about the facts found by the Tribunal.  There is no doubt about the Tribunal’s power to make findings about the proper construction of the representations contained in the notices from the Registrar.  Further, it was within the Tribunal’s power to conclude that the representations to which
    Mr Sadler refers do not in any way “infer a binding term of the agreement accepted on 10 August 1999”.  In any event, representations made by the Registrar, someone who is not a party to the relevant child support agreement, cannot “infer a binding term of the agreement accepted on 10 August, 1999” in the way in which Mr Sadler argues.

14. The real issue is whether the Registrar was entitled to make the changes that were recorded in the Child Support Register. The Tribunal determined that the Registrar was not entitled to make those particular changes.  No question of law arises under either ground four or ground six.

Question seven – Which inflation factor did the Registrar intend to apply?

1. Paragraph 7.1 of the Amended Notice of Appeal frames this question of law as follows:

   The Question of law is, (given the Registrar’s entitlement to construe the Item 26 inflation factor as a term of the agreement), which inflation factor did the Registrar intend to apply when the agreement was accepted as a registrable maintenance liability on 10 August, 1999?

2. This is not a question of law – it enquires into the intention of the Registrar – something which, even if relevant, is a question of fact.

Question five – The Inflation Factor and the Register

Question eight – Is “Full time adult total earnings” the appropriate measure?

Question nine – Inflation factors applied 1999 – 2010

1. These three questions posed by Mr Sadler are related to the one issue.  I will not set out Mr Sadler’s formulations of the issues as they are not helpful.  In my view, what he is intending to agitate is this question:

   What did the parties’ agreement about the application of an inflation factor, properly construed, mean?

2. That question is one of law because the answer to it involves a finding as to the proper construction of item 26 in the parties’ child support agreement.  The proper construction of a term of a contract is a question of law: Bowes v Shand (1877) 2 App Cas 455 at 462; Francis v Lyon (1907) 4 CLR 1023 at 1040, Collector of Customs v AGFA-Gevaert Ltd (1996) 186 CLR 389.

3. These three questions attracted submissions from the second respondent, the Child Support Registrar.  Before setting out those submissions, it is appropriate to set out the Tribunal’s reasoning with respect to this issue.

   Which inflation factor should apply?

   21. This issue has given the Tribunal considerable difficulty. The agreement provided that the child support payments were to be adjusted on 1 July each year by an inflation factor based on movements in average weekly earnings. The information source for this data was not specified.

   22. Both Mr Sadler in his written submissions and the CSA in a further submission dated 17 December 2009 agree that the inflation factors used for the assessments in former years (to 2005 according to the CSA) were based on Commonwealth Budget estimates of movements in average weekly earnings. From 2004/05, it seems the Budget papers commenced to use a wage price index figure, which the Australian Bureau of Statistics (ABS) advises is based on "pricing specific jobs" and will not pick up changes in average weekly earnings referable to increases in hours worked or changes to the composition of the employee workforce. The Tribunal accepts a wage price index approach is not appropriate to measure movements in average weekly earnings.

   23. However, in the Tribunal's view, an estimate or forecast basis for an inflation factor (from the Budget papers) is not consistent with the agreement's terms, which referred to an inflation factor based on movements in average weekly earnings. This must be taken to refer to actual rather than estimated changes. According to the CSA, an inflation factor based on actual movements in average weekly earnings (from August to August) provided by the ABS has been used since 2005.

   24. On the material provided by Mr Sadler and the Tribunal's own researches, it appears that the inflation factor used by the CSA since 2005 refers to movements in average weekly earnings based on full-time adult total earnings. Slightly different inflation factors derive from ABS data for full-time adult ordinary time earnings and all employees total earnings. Given the agreement does not specify the particular inflation factor to be used, the Tribunal accepts that the factor more recently used by the CSA is consistent with the agreement and open to be used.

   25. However, as explained, the inflation factors based on Budget estimates previously used by the CSA were not appropriate to use.

   …

   Correction of the inflation factor error

   31. The Tribunal considered how the incorrect use of Budget estimate inflation figures should be addressed. On one view, it might be suggested that Mr Sadler has not objected within time to earlier assessments so that any errors in calculation cannot now be considered. However, the Tribunal considers the better view to be that Mr Sadler's child support liability for [X] under the agreement should be calculated for the assessment periods before the Tribunal by reference to inflation factors over time from one appropriate source. This approach will require the CSA to reassess Mr Sadler's liability under the agreement by cumulatively applying the ABS inflation factors based on full-time adult total earnings since 1 July 1999 in order to properly determine the nett amounts of child support payable for the administrative assessments before the Tribunal.

1. The second respondent’s outline of argument points out that between 1 July, 1999 and 2005, the Child Support Registrar applied a child support inflation factor described in the second respondent’s written submissions as “a notional CSIF.” (CSIF stands for “Child Support Inflation Factor”). That notional child support inflation factor was based upon budget estimates of movements in average weekly earnings published, apparently, by the Australian Bureau of Statistics. The historical basis for using that measure appears to be explained in the second respondent’s written submissions at paragraph 3 – 7. In essence, for the purposes of s.55 of the Child Support (Assessment) Act 1989, the Child Support Registrar when calculating the child support liability of parents used the taxable income for two years before the relevant child support year adjusted for inflation. Indeed s.55 of the Assessment Act as it then stood justified that approach.

2. But it only justified applying the inflation factor to “the person’s last relevant year of income.”  Moreover, that exercise applied for the purposes of “working out a person’s child support income amount”. It had no application to a child support agreement or the adjustment of any weekly payments for movements in average weekly earnings as provided for in the agreement in this case. Thus, reliance upon s.55 and the child support inflation factor used or calculated by the Registrar for the purposes of that section, was misconceived.

3. The parties’ agreement in this case is clear.  The weekly payments (and not any other integer of the child support assessment) were to be adjusted for “movements in average weekly earnings.”

4. The Tribunal took the view that that term meant “actual” movements in average weekly earnings rather than “estimated” movements in average weekly earnings as revealed in the Budget Estimates.  However, the adjustment of the weekly child support payments on 1 July of each year could only have been intended to operate in futuro.  That is to say, the adjustment which took place on 1 July of each year applied for the following 12 month period.  According to the Tribunal’s reasoning, the parties’ agreement ought to be construed so that what was intended were adjustments based on the actual movement of average weekly earnings.  That, however, would mean that the adjustment for a forthcoming twelve month period commencing on 1 July in any year would be based upon movements which had already occurred.  Thus, the weekly payments of child support would remain some 12 months behind the movement in average weekly earnings.  To use estimates of the movements of average weekly earnings, however, would work to alleviate that problem.  The use of estimates, although necessarily imprecise, would assist to ensure that the adjusted weekly child support payments kept pace with movements in average weekly earnings as they occurred.

5. In my view, the Tribunal’s construction of Item 26 in the parties’ child support agreement was erroneous.

6. The evidence before the Tribunal set out in paragraphs 22 – 24 of its reasons indicates that there is no published figure for movements in average weekly earnings since the discontinuing of forward estimates of movements in average weekly earnings in 2004/2005.  Since then, the inflation factor used by the Child Support Registrar was based on full time adult total earnings.  The Tribunal records that there are different factors published by the Australian Bureau of Statistics in particular full time adult ordinary time earnings and all employees total earnings.

7. The child support agreement specifies the particular inflation factor to be used namely movements in average weekly earnings.  According to the evidence since 2004/2005 that figure was no longer published and it has been superseded by other figures.  The Tribunal’s finding that the factor more recently used by the Child Support Registrar is consistent with the agreement and open to be used is a finding of fact which was open to the Tribunal on the evidence before it.

8. Accordingly, in my view the Tribunal misconstrued Item 26 of the child support agreement when it found that it referred to “actual” movements in average weekly earnings.  In my view on its proper construction, the use of forward estimates for such movements was well within the objective intention of the parties.

Question ten

1. Paragraph 10.1 of the Amended Notice of Appeal frames this question of law as follows:

   The Question of Law is whether the Tribunal has the jurisdiction to instruct the Registrar to make “notional” calculations of what the agreed amount should have been since 1/7/1999 and then reassess from 1 September 2008 new assessments with the “notional” accumulation of these “notional” agreed amounts since 1999?

2. This question is misconceived. There is no question that the application before the Tribunal was within its jurisdiction. The appropriate question is whether it was within the Tribunal’s power to make the order that it did, which required the Registrar to reassess the assessments “set out in paragraph 30 above … by reference to ABS inflation factors for full-time adult total earnings since 1 July 1999”.

3. It is, however, unnecessary to answer this question because of the conclusions I have reached about the Tribunal’s construction of Item 26 in the parties’ child support agreement.

Question eleven

1. Paragraph 11.1 of the Amended Notice of Appeal frames this question of law as follows:

   The question of Law is whether the Registrar has failed the parties in hislher duty of care?

2. This question raises no question of law, the answer to which could affect the outcome of these proceedings. At best it raises questions of mixed fact and law and seeks against the Registrar a determination about matters not properly the subject of an appeal pursuant to s.110B of the Registration and Collection Act.

Conclusion

1. This appeal raises a question of law and in particular the proper construction of Item 26 of the child support agreement entered into between the parties on 24 May, 1999.  For the reasons expressed above, the Tribunal’s conclusion as to the proper interpretation of that item is erroneous.  On a proper interpretation of that term of the parties’ agreement, the assessment of weekly payments of child support, adjusted on 1 July of each year for the relevant inflation factor has occurred according to the terms of the agreement.  The suggestion by the Tribunal that “the assessments set out in paragraph 30 above will have to be re-assessed by reference to ABS inflation factors for full time adult total earnings since 1 July 1999” is erroneous.  The answer to the question of law demonstrates that the conclusion arrived at by the Tribunal is erroneous. The Tribunal’s decision ought to be set aside.

2. Otherwise, the Tribunal’s decision reveals no error and the application need not be remitted for re-determination. The Tribunal’s determinations on the other aspects of the objection officer’s decision are without error.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Jarrett FM

Date:  7 December 2011