Symond v Tarrant

[2020] FCCA 2703

FEDERAL CIRCUIT COURT OF AUSTRALIA

SYMOND v TARRANT [2020] FCCA 2703

Catchwords:
CHILD SUPPORT – Application not served in accordance with rule 25A.07 of the Federal Circuit Court Rules 2001 (Cth) – challenge to factual findings of the Administrative Appeals Tribunal – no error apparent – application dismissed.

Legislation:

Child Support Assessment Act1989 (Cth), s.98J

Federal Circuit Court Rules 2001 (Cth), r. 25A.07

Cases cited:

K & M (No.2) [2007] FMCAfam 920

Lesley & Lesley [2015] FamCA 894

Thomas & Harry (SSAT Appeal) [2010] FMCA fam 310

Spencer & Squire(No. 2) [2017] FCCA 3162

Applicant: MR SYMOND

Respondent: MS TARRANT

File Number: MLG 3412 of 2019

Judgment of: Judge McNab

Hearing date: 11 September 2020

Date of Last Submission: 11 September 2020

Delivered at: Melbourne

Delivered on: 11 September 2020

REPRESENTATION

The Applicant appearing in person

No appearance by the Respondent

ORDERS

1. The Applicant’s amended application filed on 4 February 2020 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Symond v Tarrant is approved pursuant to s.110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 3412 of 2019

MR SYMOND

Applicant

And

MS TARRANT

Respondent

REASONS FOR JUDGMENT

Delivered Ex Tempore (Revised From Transcript)

Background

1. By application made on 8 October 2019, and amended application filed on 4 February 2020, the Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (“the AAT” or “the Tribunal”) made on 24 September 2019 in a Child Support matter.

2. The Applicant Father and Respondent Mother are separated parents of a child who lives with the Mother at all times. The Applicant is the parent liable to pay child support.

3. A child support case was first registered with the Department of Health and Human Services (“the DHHS”) on 3 August 2010.

4. On 14 August 2018, an investigator from the DHHS recommended a departure from the assessment of payable child support, due to the Applicant’s “income and access to financial resources”: see [4] of the Tribunal’s decision. The applicable child support assessment at that time, as stated at [4] of the Tribunal’s decision, was as follows:

   “From 1 February 2018 to 31 October 2018, [Mr Symond] was assessed to pay an annual rate of child support of $1,1416, based on a 2016/2017 adjusted taxable income of $4 and [Ms Tarrant’s] provisional taxable income of $14,426.”

5. On 19 November 2018, a DHHS officer, acting as a delegate of the Child Support Registrar, found that a ground of departure was established and decided to depart from the assessment in the following terms:

   From 14 August 2018 until there is a terminating event in the case for the child, the adjusted taxable income of [Mr Symond] is set at $156,352 per year.”

6. The Applicant objected to the officer’s decision, and on 4 February 2019 a DHHS objections officer disallowed his objection.

7. The Applicant then applied to the Tribunal for an independent review with a hearing was held on 28 August 2019. The Applicant and Respondent attended the hearing, but the Child Support Registrar did not attend.

8. On 24 September 2019, the AAT, in handing down their decision, decided that:

   “…[Mr Symond’s] Adjusted Taxable Income is varied to $165,352 per annum and Ms Tarrant’s Adjusted Taxable Income is varied to $43,928 per annum for the period 14 August 2018 until there is a terminating event in respect to the child of the assessment.”

9. The application to this Court was then filed on 8 October 2019.

The Service Issue

1. The matter first came before Her Honour Judge Kirton of this Court on 13 November 2019. Her Honour ordered that the matter be adjourned to 17 Feb 2019 for Directions. Relevantly, the notation of those orders states:

   “A. Today’s proceeding is adjourned as there is no evidence that the Respondent has been served with the Notice of Appeal (Child Support).”

2. Rule 25A.07 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) provides that:

   (1) The persons to be served with an application or appeal under this Part are:

   (a) each respondent; and

   (b) a parent or eligible carer of the child in relation to whom the application or appeal is made; and

   (c) the Child Support Registrar; and

(d) for appeals from the Tribunal to which this Part applies:

(i) the Registrar of the Tribunal; and

(ii) any other parties to the appeal.

1. In the case of Lesley & Lesley [2015] FamCA 894 (“Lesley”), His Honour McClelland J, when considering r4.23(1)(c) of the Family Law Rules 2004 (Cth) which is equivalent to r25A.07 of the Rules, stated at [59]:

   “Failure to serve the Registrar in accordance with the Rules is fatal to the Court dealing with the application at this time. Requiring service to be effected is not simply insisting on ritualistic compliance with the Rules for the sake of mere compliance. Non-service on a person or entity that has a statutory right of intervention is a fundamental denial of natural justice that, in the absence of urgency, prevents the Court from dealing with that aspect of the application.”

2. Citing Lesley, Judge Harper (as he then was) stated in Spencer & Squire(No. 2) [2017] FCCA 3162 at [282]:

   “The application for a departure order fails in the absence of the proof of compliance with r.25A.07 of the Rules, especially service upon the Child Support Registrar.”

3. As of hearing this matter on 11 September 2020, while the Respondent, Ms Tarrant, was served with the application on 15 October 2019, the Registrar of the Tribunal had not been served with this application and that was a matter that was raised with the Applicant on 13 November 2019 by Judge Kirton.

4. This issue was raised with the Applicant during the hearing, who stated that he relied on advice from a member of the registry staff of this Court when filing and serving this appeal. In this case there is no evidence of service of the appeal on the Registrar of the Tribunal and the application must fail for that reason.

Grounds of Appeal

1. Whilst not strictly necessary, the Court will consider the Applicant’s grounds for review as stated in his appeal documents and arguments from the hearing.

2. The Applicant filed and served upon the Respondent an amended notice of appeal on 4 February 2020. The amended grounds of appeal were as follows:

   “1) AAT wrongly interpreted a statute relevant to proceedings.

   2) AAT unfairly based on incorrect information to determine its decision.”

3. The Applicant has filed an affidavit sworn on 23 July 2020 in support of his application. That affidavit contains 25 paragraphs, and annexures A to K.  The matters raised by the Applicant in his affidavit are, effectively, challenges to findings of fact made by the AAT in its consideration of this matter.  The Applicant refers to findings made by the Child Support Agency (“the Agency”) (a copy of which findings are not before me) to the effect that the Applicant had travel documents indicating 60 travel movements. 

4. The Applicant says that the Agency’s finding in relation to his travel movements is incorrect and refers to Annexure C in his affidavit sworn on 23 July 2020, which encloses a formal letter dated 1 February 2019 from the Freedom of Information decision maker from the Department of Human Services to the applicant. The letter to the Applicant states: 

   “I have decided to refuse your request for documents/evidence held by the Child Support that you travelled overseas 60 (sixty) times over the last years’ under section 24 over the FOI Act on the basis that all reasonable steps have been taken to locate the requested document and I’m satisfied that the document does not exist.  Please see Attachment A for the reasons behind my decision. 

   On 21 January 2019, I contacted you to advise that child support had confirmed that the recording of ‘60 travel movements’ on your record was incorrect however, there was a document detailing 50 travel movements.  You confirm that you did not wish to revise your request to access this document and that a decision on the current matter would suffice.” 

5. The decision of the AAT makes no reference to the Applicant’s alleged travel movements as the basis for its decision, and that aspect of the applicant’s grounds, which I take to be those set out in his affidavit, are irrelevant.  Otherwise, the matters raised by the affidavit effectively cavil with the findings of fact made by the Tribunal.

6. The Tribunal had significant concerns in relation to the veracity of the material placed before it in support of the Applicant’s claims in relation to his income.  The Tribunal noted at paragraph [16] of its decision that, in relation to a loan application made by the Applicant:

   “The Tribunal referred Mr Symond to his loan application in May 2017, with B Home Loans.  The Tribunal noted that he disclosed income of $201,352, including salary and rent income.  He also disclosed ownership of assets worth $2,370,000, with total liabilities of $568,001.  Total loan payments were $2675 per month for which he supplied loan statements.  Mr Symond submitted that he had no income and his assets were actually owned by his friends and family.  He has submitted that several cash deposits made to him in 2018 of over $5000 were payments made by his mother-in-law to support him, or deposits made by his broker to facilitate a loan.  The Tribunal noted he also received cash at $300,000 in respect of a sale of a property C Street, Suburb D of which he only declared a capital gain in his 2017-18 taxation returns of $90,683.  He did not supply settlement documents in respect to this transaction, as directed by the tribunal.  The tribunal preferred the deposit evidence in his bank account to his taxation return and did not accept that his share of the gain was only $90,683 when his bank account shows otherwise.”

7. The Tribunal made reference to authorities, including K & M (No.2) [2007] FMCA fam 920 at [9] and Thomas & Harry (SSAT Appeal) [2010] FMCA fam 310, in support of its view that in the event the Tribunal comes to a conclusion that, for whatever reason, a party has failed to disclose relevant information then the Tribunal should not be unduly hampered in any exercise at its discretion: see [18] of the Tribunal’s decision. 

8. The Tribunal concluded at [20] of the their decision, in relation to the Applicant’s evidence about his income and access to financial resources, that:  

   “After considering the totality of the evidence before it, the Tribunal considered Mr Symond’s income and overall access to financial resources to be entirely opaque.  In such circumstances, the Tribunal considered the home loan application he had submitted in 2017 to facilitate his finances to be the most reasonable approximation of his overall access to financial resources.”

Consideration

1. In my view, there is no apparent error in the manner in which the Tribunal approached its task and there is no reasonably arguable ground raised by the Applicant in the grounds set out in his affidavit sworn 23 July 2020 or in the amended grounds of appeal filed 4 February 2020. One approach may be where the Applicant had disclosed an arguable basis for appeal to further adjourn the application to allow for service on the Tribunal, however, I note that the time limits for the service of an application provide that the application must be served at least 28 days before the hearing date: see r25A.07(2) of the Rules.

2. In my view, there is no utility in further adjourning the application. I have referred the Applicant to s98J of the Child Support Assessment Act1989 (Cth), and that may provide a course that he may wish to adopt in relation to the assessment that has been made, if it is the case that there is fresh evidence which might support the amendment of the assessment that has been made.

3. For these reasons, the Applicant’s amended grounds of appeal filed on 4 February 2020 are dismissed.  

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate:

Date: 30 September 2020