Tan v Child Support Registrar
[2013] FCCA 123
•13 May 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TAN & TAN (SSAT APPEAL) and TAN v CHILD SUPPORT REGISTRAR & ANOR | [2013] FCCA 123 |
| Catchwords: CHILD SUPPORT – Appeal from SSAT – reconciliation of costs of raising children with Costs of Children Tables. CHILD SUPPORT – Appeal from SSAT – whether issue estoppel applies to administrative decision of Child Support Registrar or SSAT. CHILD SUPPORT – Appeal from SSAT – whether Child Support Registrar functus officio. ADMINISTRATIVE LAW – Judicial review – grounds of review – generally. |
| Legislation: Administrative Decisions (Judicial Review) Act 1977 Child Support Assessment Act 1989, ss.111, 112, Part 6A Child Support Registration and Collection Act 1988 Commonwealth of Australia Constitution Act 1900 |
| Cases cited: Administration of the Territory of Papua and New Guinea & Anor. v Daera Guba [1973] HCA 59; (1973) 130 CLR 353; (1973) 47 ALJR 621 Chamberlain v Deputy Federal Commissioner of Taxation [1988] HCA 21; (1988) 164 CLR 502 Carlson & Arcuff and Anor (SSAT Appeal) [2010] FMCAfam 677 Gelber & The Child Support Registrar and Anor (SSAT Appeal) [2012] FMCAfam 45 Howell v Falmouth Boat Construction Co Ltd [1951] AC 837; (1951) 2 All ER 278 Luten v Lessels [2002] HCA 13; (2002) 210 CLR 333; [2002] FLC ¶98-015; (2002) 187 ALR 529; (2002) 76 ALJR 635; (2002) 28 Fam LR 398; (2002) 23 Leg Rep 2; 49 ATR 471 Maritime Electric Co Ltd v General Dairies Ltd [1937] AC 610; (1937) 1 All ER 748 Tan & Tan and Anor [2011] FMCAfam 913 |
| Applicant: | MR TAN |
| Respondent: | MS TAN |
| File Number: | MLC 4576 of 2009 |
| Applicant: | MR TAN |
| First Respondent: | CHILD SUPPORT REGISTRAR |
| Second Respondent: | MS TAN |
| File Number: | MLG 963 of 2012 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 29 August 2012 |
| Date of Last Submission: | 29 August 2012 |
| Delivered at: | Dandenong |
| Delivered on: | 13 May 2013 |
REPRESENTATION
| Counsel for the Applicant: | The Applicant appearing in person. |
| Counsel for the First Respondent: | Mr McAloon of Counsel |
| Solicitors for the First Respondent: | Australian Government Solicitors |
| Counsel for the Second Respondent: | The Second Respondent appearing in person |
ORDERS
The appeal with respect to SSAT appeal [1] be dismissed.
The appeal with respect to SSAT appeal [2] be dismissed.
The application for judicial review filed 15 June 2012 be dismissed.
There be no order as to costs.
IT IS NOTED that publication of this judgment under the pseudonym Tan & Tan (SSAT Appeal) and Tan v Child Support Registrar & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
MLC 4576 of 2009
| MR TAN |
Applicant
And
| MS TAN |
Respondent
MLG 963 of 2012
| MR TAN |
Applicant
And
| CHILD SUPPORT REGISTRAR |
First Respondent
| MS TAN |
Second Respondent
REASONS FOR JUDGMENT
The applicant has filed two notices of appeal with respect to decisions of the Social Security Appeals Tribunal, together with an originating application seeking judicial review under the Administrative Decisions (Judicial Review) Act 1977, with respect to decisions of the Child Support Agency.
Appeal against Decision [1]
The applicant appeals against a decision of the Social Security Appeals Tribunal (SSAT) dated 7 June 2012. The decision of the tribunal set aside a decision of the Child Support Registrar and made departure determinations for the period 1 July 2008 to 31 December 2009. The departure determination set the adjusted taxable income amounts for both the applicant (as liable parent) and the second respondent (as carer), for the purposes of calculating the child support assessment under the Child Support Assessment Act 1989.
The notice of appeal sets out two grounds.
Ground 1
The first ground of appeal relied upon by the applicant is as follows:
1. The SSAT findings in relation to the children costs are inappropriate as the SSAT relied on the incorrect statutory tables in determining the costs of the children, and failed to take into account the best evidence of the actual costs of the children.
In this case, the tribunal addressed the costs incurred by the second respondent in caring for the children, as part of its relevant deliberations under their legislation. At paragraph 34 of their decision, the tribunal discusses a statement of financial circumstances prepared by the second respondent in 2009, which estimated the financial needs of the children.
Although the tribunal sought an updated statement of financial circumstances from the second respondent, none was provided. The tribunal discussed, at paragraph 35 of their decision, the various expenses, and the fact that the Tribunal specifically heard from the applicant with respect to these expenses.
At paragraph 38, the tribunal outlined that:
38. In summary [the applicant] agreed with claimed costs totally $325 per week, but said that other costs were either too high without suggesting an alternative figure, or that they were not children’s costs or were unnecessary or discretionary costs.
The tribunal also asked the applicant to comment upon expenditure evidenced in the MasterCard statements of the second respondent, as is outlined at paragraph 39 of their decision.
At paragraph 40 of their decision, the tribunal member records that the applicant relied upon the Child Support Agency’s Costs of Children Tables for 2008, which indicated that the costs of children of the ages of those in this case were $17,606 per annum. The applicant is recorded as raising the argument before the tribunal that because of the fact that the second respondent did not pay mortgage or other accommodation expenses for the children, the costs set out in the table should be reduced by around 30 per cent.
At paragraph 41 of their decision, the tribunal addressed the Costs of Children Tables from 2008 (carrying out the calculations that would be made under the Act to adjust the Costs of Children Table amounts based upon the income amounts of the parents), striking figures similar to those suggested by the applicant in his submissions to the tribunal. The tribunal’s calculations were between $16,132.52 and $17,713.25, compared to the figure the applicant referred to of $17,606.
Importantly, in this case, the tribunal member, at paragraphs 42 to 44 of the decision, turned to consider the actual costs of the children in this particular family. This was the appropriate course in circumstances where there was some argument as to relevance of the Costs of Children Tables and, in particular, the relevance of them to the expenditure in this particular family.
At paragraph 44 of their decision, the tribunal concluded that the costs of the children in this particular case were greater than the estimates in the table that I referred to. The tribunal specifically rejected the argument that the costs of the children in this case should be reduced because the second respondent does not pay housing costs. The tribunal member ultimately concluded that:
44. …regardless of accommodation costs, [the second respondent’s] expenditure on the children is at least equivalent to the costs stated in the Tables.
In these circumstances it is difficult to see how the applicant can succeed on his ground of appeal. The tribunal clearly turned its mind to the actual costs of the children in this case. Whilst the Tables provide a statistical guide, which is used as the basis for a formula assessment, the tribunal in this case has not simply applied a statistical average but addressed the real expenses. The tribunal has considered the statistical information which forms the basis of the child support formula assessment. The tribunal concluded that the children in this case cost at least as much as the formula assessment would estimate, indeed far more; see the finding at paragraph 44 of the decision that the costs for the caring for the children in this case were around $24,700 per annum.
While statistical information such as the Costs of Children Tables are important for the basis of sound policy development and implementation by government, when turning to individual families in specific cases such information remains only a guide. It is the actual expenses and details of this particular family that the tribunal were required to consider when determining a departure application. The best evidence of those expenses is the evidence of the parties as to the amounts they actually spend on the children to the extent that such expenses could be ascertained. To the extent that the specific children’s expenses from a family budget are difficult to identify, the tribunal member clearly addressed this and compared the figures ascertained by the fact finding process to the Costs of Children Tables.
I see no error in the tribunal testing the evidence before it (and indeed its conclusions) against such statistical information, and ensuring that any assessment as to the costs of the children properly represents, at least, the actual costs incurred for the children in this particular family.
The applicant also sets out in his affidavit that on his analysis of the costs shown in the second respondent’s credit card statement the household costs were around $17,974 per annum and that if two-thirds of this were attributable to the children the costs of the children would only be $12,043 per annum. In this case the tribunal specifically addressed the arguments with respect to the inferences to be drawn from the credit card statements saying:
39. The Tribunal also asked [the applicant] to comment on the expenditure evidence by [the second respondent’s] Mastercard Statements. [The applicant] said that the Mastercard Statements showed [the second respondent] spent between $3,642 per month and $5,430 per month. If $620 per week was being spent on the children, [the second respondent] was attributing 2/3rds of her expenditure as the costs of the children, which he did not believe to be correct. He believed the statements showed expenditure on items such as alcohol and holidays and that [the second respondent] had simply attributed 2/3rds of her general expenditure to the children.
Ultimately this amounts to a dispute as to the fact-finding functioning of the tribunal. The tribunal clearly addressed various items of evidence before it in attempting to ascertain the costs of the children in this particular case and made findings of fact accordingly. I am not persuaded that the tribunal erred in its carrying out of its function. It is not for me to review the determination as to the facts by the tribunal. It appears to me that the findings of the tribunal in this case were open to it and therefore this ground must be refused.
In the circumstances I therefore dismiss this ground of appeal.
Ground 2
The applicant’s second ground of appeal is in the following terms:
2. The Applicant was denied procedural fairness with the SSAT relying on the 2nd Respondent’s financial statement, without corroboration by the 2nd Respondent and the Applicant was unable to realistically challenge the details of the expenses, despite them being available to the SSAT.
In this regard, the applicant complains that the second respondent failed to provide up-to-date detail, or more detailed information, to the tribunal to assist it in its fact-finding process.
The applicant sets out in his affidavit that the second respondent claimed various expenses supported by credit card statements which had sections deleted and failed to provide the clear copies of the statements. He also points out that the second respondent did not appear at the hearing to give evidence as to the expenses previously claimed. Full copies of the credit card statements were obtained by the tribunal through notices to the relevant bank.
Not surprisingly, the applicant would have been hopeful that the tribunal would draw an adverse inference against the second respondent with respect to her evidence as to the costs of children given the lack of corroborative material and the failure to attend and give evidence before the tribunal. It is certainly open to a tribunal or a court to draw such an inference as a matter of law. However, an often overlooked aspect of this area of the law is that a tribunal or court is not required to draw an adverse inference. The failure of the second respondent to provide more information or to attend is a relevant part of the considerations in determining the factual question, but did not require the tribunal to determine it adversely to her. In these circumstances it does not appear to me that it could be said that the tribunal erred in the way that it approached its fact finding in this matter.
As a result I therefore dismiss the notice of appeal filed 15 June 2012 with respect to decision MC232868.
Appeal against Decision [2]
The second notice of appeal lodged by the applicant on 15 June 2012 is with respect to a decision of the Social Security Appeals Tribunal relating to his child support assessment from 1 January 2007 to 28 February 2007.
In this application the applicant relies upon two grounds of appeal as follows:
1. Doctrine of estoppel issue applies relating to the child support assessment 01/01/2007-28/02/2007;
2. The CSR are “functus officio” relating to the child support assessment 01/01/2007 – 28/02/2007.
The relevant decision is dated 3 May 2012. That decision provides for the child support income amount for the applicant to be set at $53,263 per annum.
Ground 1
The substance of this appeal is a claim that the issue determined by the SSAT had already been determined by the SSAT in a previous review in the decision MC225454 made on 12 December 2007. This SSAT decision was the subject of an appeal by the applicant, which was dismissed on 31 August 2011. The applicant says that the findings of fact by the SSAT in the first decision should be considered conclusive, as with the SSATs determination at that time, that it would be just and equitable for the applicant’s child support income amount to be set at $53,802.
The SSAT decision was that the child support income amount should be set from 1 March 2007 to 30 June 2008 at $53,802. In the subsequent decision, now the subject of an appeal, the child support income amount for Mr Tan was set for the period 1 January 2007 to 28 February 2007 at $53,263. The substantive difference between the two decisions was whether or not the child support income amount for the applicant should have been adjusted for the months of January and February 2007.
Importantly, the first review by the Social Security Appeals Tribunal was instigated by the applicant. It was an application to review a decisions of an objections officer made on 27 June 2007, disallowing an objection to a decision made on 11 April 2007, which set the applicant’s child support income amount of $53,802 for the period 1 March 2007 to 30 June 2008. At paragraph 67 of the original decision, the member said:
67. The Tribunal notes that section 98S(3) and section 118 of the Assessment Act provide that a determination may be made in relation to different child support periods. The child support assessment under review is for the period 1 March 2007 to 30 June 2008. The objections officer commenced the period from 1 March 2007 as this was the date [the applicant] would have been aware of the application to change the assessment. Given that [the applicant] could have then taken action to rearrange his finances so as to avoid the repayments for the personal loan and the credit card, the Tribunal can see no reason to change the commencement date. The child support period under review runs until 30 June 2008, just prior to the commencement of new legislative provisions in relation to the administrative assessment of child support. In light of those changes, the Tribunal does not consider it appropriate to extend the child support period beyond 30 June 2008.
It appears clear that the tribunal, on that review, were considering a review of the decision of an objections officer, relating to the child support period commencing 1 March. I can find nothing in the decision to indicate that there was a cross-application by the second respondent at that time seeking a review of any decision in relation to the period prior to March 2007.
The review decision, the subject of the current appeal, arises out of a long history of procedural events. It is important to understand the circumstances.
On 23 May 2005, the applicant lodged an estimate with the Child Support Agency, estimating that his income would be only $10,094 per annum. As a result of this estimate, the child support assessment reduced the minimum rate to $260 per annum.
Not surprisingly, the second respondent applied for a change to the child support assessment under Part 6A. This application was made on 15 June 2005. Her case on the departure application was that the applicant had a far greater earning capacity, as he had left a well-paid professional position in February 2004, with a large termination payment, and had made little or no attempt to secure a new full-time position.
On 21 July 2005, a senior case officer declined to make a change to the assessment. In 2009, however, the applicant’s estimated income for the period 23 May 2005 to 30 June 2006 was reconciled with his actual income, in accordance with the provisions of the legislation. This resulted in a significant increase in his child support assessment.
On 8 September 2009, the applicant objected to the senior case officer decision made on 21 July 2005, and sought an extension of time in order to lodge his objection. Initially, the extension of time application was refused, but it was subsequently allowed on appeal to this Court.
The practical outcome of the case to that point can be summarised as follows:
a)the applicant had lodged an estimate striking a very low income figure following him leaving or finishing his employment;
b)the second respondent sought review, unsuccessfully;
c)a subsequent reconciliation by a senior case officer of the estimate and actual earnings, significantly increased the child support assessment; and
d)the applicant sought the right to bring an SSAT appeal with respect to the senior case officer’s decision.
It was clearly appropriate for the applicant to be able to challenge the senior case officer’s decision, given that, in the interim, the assessment had significantly changed as a result of the operation of the reconciliation provisions. The current decision by the Social Security Appeals Tribunal was therefore able to deal with the merits of the case as it then stood.
In his case before the SSAT, the applicant sought to have the child support assessments from 1 January 2005 to 28 February 2007 based upon his actual income earned throughout that period. For the period January and February 2007, he maintained that his actual income was Newstart allowance, and $10,064 per annum. The SSAT, in its most recent decision, identified the case as originally put by the second respondent, seeking an increase in the assessment, based upon income and earning capacity, and the case as put by the applicant.
The tribunal specifically addressed the period 4 December 2006 to 28 February 2007, saying:
45. [The applicant] commenced employment on 4 December 2006 in a full time job. The Tribunal calculated his actual income at $53,263 per annum. This is based on his known earnings from employment in the 2006/07 income year as declared to the Australian Taxation Office of $30,698 (for 209 days), less deductions of $348. This gives an annualised income of $53,263.
46. Despite this, in the period 4 December 2006 to 28 February 2007 [the applicant’s] child support liability was being assessed on income of $40,269. The fact that his actual income was significantly more than the income amount being used in the assessment renders the assessment for this period unfair.
The Tribunal specifically addressed the applicant’s estoppel argument, saying:
104. Firstly, he argued that the Tribunal was estopped from considering this period because it has already been taken into account on three occasions by decision makers who had decided a departure determination should not apply to this time frame. In relation to this argument the Tribunal notes that [the second respondent] made a change of assessment application on 16 January 2007 after [the applicant] commenced work, and when his child support liability was being assessed on deemed income of $10,094. [The applicant] became aware of the change of assessment application in a letter dated 27 February 2007. Neither the SCO, the objections officer, nor the SSAT who considered this application, took the view that it was appropriate to backdate the change of assessment to the date [the applicant] commenced work.
105. The application of the notion of estoppel to bodies making administrative decisions was canvassed at length by the Administrative Appeals Tribunal in Rana and Military Rehabilitation and Compensation Commission [2008] AATA 558, when the Tribunal examined a range of relevant court decisions. The Tribunal concluded that:
In light of these authorities, it seems clear that, unlike a judicial decision, the fact that an administrative decision has been made does not necessarily lead to a consideration of whether it affects subsequent proceedings by virtue of the application of the principles of res judicata, cause of action estoppel, Anshun estoppel and issue estoppel. That is not to say that an administrative decision will never lead to a consideration of those principles. As is clear from the judgments of the High Court in Administration of Papua New Guinea v Daera Guba, however, whether it will do so depends very much on an analysis of the administrative decision, of the powers under which it is made and the consequences that Parliament intended that decision to have.
106. The notion of estoppel, or issue estoppel as it is sometimes described, has been explained as follows by Dixon J in Blair v Curran (1939) 62 CLR 464:
A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared.
107. The Privy Council in Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 specified the three essential elements that must exist if the doctrine is to apply:
(1) that the same question has been decided; (2) that the judiciall decision which is said to create the estoppel was final; and, (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.
108. In Blair v Curran, Dixon J explained the limits of the doctrine:
Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established. Where the conclusion is against the existence of a right or claim which in point of law depends upon a number of ingredients or ultimate facts the absence of any one of which would be enough to defeat the claim, the estoppel covers only the actual ground upon which the existence of the right was negatived. But in neither case is the estoppel confined to the final legal conclusion expressed in the judgment, decree or order. In the phraseology of Coleridge J. in R. v. Inhabitants of the Township of Hartington Middle Quarter[53], the judicial determination concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided as the groundwork of the decision itself, though not then directly the point at issue. Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessarily to assert that the former decision was erroneous.
In the phraseology of Lord Shaw, "a fact fundamental to the decision arrived at" in the former proceedings and "the legal quality of the fact" must be taken as finally and conclusively established (Hoystead v. Commissioner of Taxation[54]). But matters of law or fact which are subsidiary or collateral are not covered by the estoppel. Findings, however deliberate and formal, which concern only evidentiary facts and not ultimate facts forming the very title to rights give rise to no preclusion. Decisions upon matters of law which amount to no more than steps in a process of reasoning tending to establish or support the proposition upon which the rights depend do not estop the parties if the same matters of law arise in subsequent litigation.
109. In this case, the Tribunal is of the view that estoppel is not applicable. Taking into account the considerations enunciated in Rana, that is, an analysis of the administrative decision, of the powers under which it is made and the consequences that Parliament intended that decision to have, it is evident that the change of assessment process is intended to ensure that child support is paid on a fair basis, that parents support their children in accordance with their capacity to pay and the children’s needs, and that the burden on the taxpayer is reduced.
110. The decision makers who determined [the second respondent’s] change of assessment application made on 16 June 2005 were concerned about the fairness of backdating a departure determination before the date of her application. The present Tribunal however, is considering a change of assessment application lodged on 16 June 2005, and determining what income should be used or other changes should be made to the administrative formula assessment following that date. It is not considering whether a change of assessment decision should operate retrospectively prior to the date of an application for a change of assessment.
111. Further, the decision not to backdate the departure determination resulting from [the second respondent’s] application for a change of assessment on 16 January 2007 was discretionary in nature. This exercise did not involve a finding of fact or matter that was legally indispensible to the conclusion reached. In the present matter the Tribunal is making a decision in relation to a different and earlier change of assessment application, and is assessing whether it is fair to make a particular determination for a period following the application.
It is important to note at this point that the current application to the Social Security Appeals Tribunal is a review of the 16 June 2005 change of assessment application, which was made by the applicant. In effect, the applicant has sought that the tribunal review the decisions made with respect to that application.
In argument before me, the applicant relied upon the High Court’s decision in the Administration of the Territory of Papua and New Guinea & Anor. v Daera Guba [1973] HCA 59; (1973) 130 CLR 353; (1973) 47 ALJR 621, which concerned the operation of the land board of Papua New Guinea in 1954. The decision is a lengthy and complex one. It appears that the majority, Barwick CJ and McTiernan and Menzies JJ, found that the land the subject of the claim had been validly purchased by the Crown in 1886, effectively bringing an end to the claim.
A number of the judges, however, went on to consider the effect of a decision of a tribunal, and, in particular, whether the parties would be estopped by it.
Barwick CJ, at para.99 of the decision, identified that the board in that case was bound by legal principles to determine the question of ownership of the land. The board was required to ascertain the existing facts and apply the existing law to those facts in order to determine who did own the land. His Honour determined that this was clearly work of a judicial nature, and that such a decision must, of necessity, be final as between the parties. His Honour identified that, in a system where:
[99] …a separation of powers existed, that function could be classed as an exercise of judicial power. But it is quite immaterial in the present connexion to consider such a question or decided cases which deal with it.
His Honour concluded that the decision of the board was a final decision, and that the doctrine of estoppel applied. Menzies J agreed with the Chief Justice. Gibbs J sets out some detail of a legal structure of the administration of Papua New Guinea his decision. As Gibbs J pointed out, much attention was given in that case to the nature of judicial power, particularly in relation to chapter 3 of the Australian Constitution. However, his Honour went on to state:
[73] …In many of the authorities that discuss this form of estoppel, it is said that the estoppel is brought about by a judicial decision, pronounced by a judicial tribunal. Thus in a recent case, Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2) [1967] 1 AC 853, at p 933 , Lord Guest said :
"The rule of estoppel by res judicata, which is a rule of
evidence, is that where a final decision has been pronounced by a judicial tribunal of competent jurisdiction over the parties to and the subject-matter of the litigation, any party or privy to such litigation as against any other party or privy is estopped in any subsequent litigation from disputing or questioning such decision on the merits (Spencer Bower on Res Judicata, p. 3)."The use of the phrase "judicial tribunal" in this context is convenient as indicating that an estoppel of this kind does not result from a mere administrative decision, but the question whether such an estoppel is raised is not answered by inquiring to what extent the tribunal exercises judicial functions, or whether its status is judicial or administrative: see Caffoor v. Commissioner of Income Tax, Colombo, per Lord Radcliffe [1961] AC 584, at pp 597-599 . A fairly obvious example is the case of a court-martial, whose sentence might in some circumstances be pleaded as an estoppel (Hannaford v. Hunn (1825) 2 C & P 148, at p 155 [1825] EngR 877; (172 ER 68, at p 71) ), although not made in the exercise of judicial power (cf. R. v. Bevan ; Ex parte Elias and Gordon [1942] HCA 12; (1942) 66 CLR 452, at pp 466-468 ; R. v. Cox; Ex parte Smith [1945] HCA 18; (1945) 71 CLR 1, at p 23 ). The doctrine of estoppel extends to the decision of any tribunal which has jurisdiction to decide finally a question arising between parties, even if it is not called a court, and its jurisdiction is derived from statute or from the submission of parties, and it only has temporary authority to decide a matter ad hoc: see Halsbury's Laws of England, 3rd ed., vol. 15, pp. 212-214 ; Spencer Bower & Turner on Res Judicata, 2nd ed. (1969), pp. 21-28. It will accordingly not be necessary to canvass the authorities to which we were referred, and which deal either with issue estoppel or with the nature of judicial power. (at p453)
In the legal system in which the board was operating, there was no prohibition on the tribunal exercising judicial power, as there would be in proceedings under the Child Support (Assessment) Act as a result of the operation of chapter 3 of the Australian Constitution.
In this case, there is no question that the SSAT, and indeed, the senior case officer and objections officer as delegates of the Child Support Registrar, were exercising administrative and not judicial power. It is also clear that, in determining the appropriate rate of child support, the legislative scheme contemplates numerous opportunities for changes to child support assessments, based upon changes in care arrangements, estimated incomes, reconciliations of estimated incomes, and departure applications under Part 6A of the Child Support (Assessment) Act 1989.
The determination of the rate of child support is a determination that seeks to address the future needs of children. It is not a determination to determine the existing ownership of property nor a determination of existing rights with respect to past events in the sense referred to by Barwick CJ at paras.98-99 of Administration of the Territory of Papua and New Guinea & Anor. v Daera Guba [1973] HCA 59; (1973) 130 CLR 353; 47 ALJR 621. The determinations with respect to child support relate primarily to imposing an obligation upon persons (usually the parents) to provide for the needs of a child into the future. Such a power can appropriately be invested in the judicial organs of government, and also can be appropriately invested in the administrative organs of government due to the unusual nature of the decision-making that is required.
It is the very nature of concepts such as an estimated income and subsequent reconciliation which show clearly that the scheme contemplates further review of assessments based upon updated information. The jurisprudence with respect to departures under Part 6A specifically requires the Registrar, and SSAT on review, to turn their mind to any hardship that may be caused particularly by any backdating or retrospective effect of decisions.
I am not persuaded that issue estoppel can be said to arise with respect to decisions of the Child Support Registrar, or the SSAT on review under the child support legislation. Similar conclusions have been reached in previous decisions of this court in Carlson & Arcuff and Anor (SSAT Appeal) [2010] FMCAfam 667 at 53 and Gelber & The Child Support Registrar and Anor (SSAT Appeal) [2012] FMCAfam 45 at 17 and 29.
In those circumstances I am not persuaded that the doctrine of issue estoppel applies in relation to this matter.
Ground 2
The second ground of appeal raised by the applicant in this matter was a claim that the Child Support Registrar was functus officio with respect to the child support assessment for the period 01/01/2007 – 28/02/2007.
This argument appears untenable as the SSAT review is one of an objections officer’s decision. The SSAT review was sought by the appellant. The nature of the child support scheme is to provide a flexible assessment and review process to deal with child support issues. The assessments will commonly be prospective and circumstances will regularly change, requiring review of the assessment. I see no role for the concept of functus officio when considering an assessment that is in force in the circumstances of this appeal.
As a result I therefore dismiss the notice of appeal filed 15 June 2012 with respect to decision [2].
Application for Judicial Review
The applicant seeks judicial review of the determination by the Child Support Registrar to change the child support assessment for the period 1 July 2001 to 11 October 2001. The Child Support Registrar reconciled an estimate lodged by the applicant with respect to his income amount during this period with the applicant’s tax return. Unfortunately the reconciliation did not occur at the time the applicant lodged his tax return but some years later on 18 September 2008.
The applicant has previously lodged appeals against the Registrar’s decision and the method that the Registrar utilised to carry out the reconciliation. These issues are dealt with in Tan & Tan and Anor [2011] FMCAfam 913.
In these proceedings the applicant seeks judicial review of the Registrar’s decision as it is not open to the applicant under the Act to apply for a departure determination under Part 6A as a result of the effect of ss.111 and 112 of the Child Support Assessment Act1989. Those provisions provide:
[111] Application for amendment of administrative assessment that is more than 18 months old
Parent or carer applications
(1) A liable parent, or a carer entitled to child support, (the applicant) may apply to a court having jurisdiction under this Act for leave for:
(a) the Registrar to make a determination under section 98S; or
(b) the court to make an order under section 118;
in respect of a day in a child support period, being a day that is more than 18 months, and less than 7 years, earlier than the day on which the application under this section is made.
(2) Subject to section 145 (Registrar may intervene in proceedings), the parties to the proceeding under subsection (1) are:
(a) the applicant; and
(b) either:
(i) the liable parent; or
(ii) the carer entitled to child support.
Registrar application
(3) The Registrar (the applicant) may apply to a court having jurisdiction under this Act for leave for the Registrar to make a determination under section 98S in respect of a day in a child support period, being a day that is more than 18 months, and less than 7 years, earlier than the day on which the application under this section is made.
(4) The parties to the proceeding under subsection (3) are:
(a) the applicant; and
(b) the liable parent; and
(c) the carer entitled to child support.
[112] Court may grant leave to amend administrative assessment that is more than 18 months old
Court may grant leave to amend administrative assessment that is more than 18 months old
(1) If an application is made to a court under section 111, the court may grant leave for:
(a) the Registrar to make a determination under section 98S; or
(b) the court to make an order under section 118.
(2) The court may grant leave for an order to be made under section 118 if the court is satisfied that it would be in the interest of the parties to the proceeding for the court to consider, at the same time as it hears the application under section 111, whether an order should be made under section 118. If the court does so, the applicant is taken to have made an application to the court under section 116 for such an order.
(3) Otherwise, the court may grant leave for the Registrar to make a determination under section 98S.
(3A) To avoid doubt, the court may grant leave for the Registrar to make a determination under section 98S, or for the court to make an order under section 118, irrespective of what the applicant applied for under section 111.
Matters to be considered
(4) In considering whether to grant leave under subsection (1), the court must have regard to:
(a) any responsibility, and reason, for the delay in:
(i) making an application under section 98B or 116; or
(ii) making a determination under section 98S;
as the case requires; and
(b) the hardship to the applicant (other than the Registrar) if leave is not granted; and
(c) the hardship to the other party or parties (other than the Registrar) if leave is granted.
(5) The court may have regard to any other relevant matter.
Orders granting leave to specify period
(6) An order granting leave under this section must specify the period in respect of which the Registrar may make a determination or the court may make an order.
(7) The period specified under subsection (6):
(a) must not include a day in a child support period if the day is more than 7 years earlier than the day on which the application under section 111 was made; and
(b) is not limited by the terms of that application.
No requirement to make determination or order
(8) The granting of leave under subsection (1) does not imply that:
(a) the Registrar is required to make a determination under section 98S; or
(b) the court is required to make an order under section 118.
The clear wording of the provisions precludes the applicant from lodging a departure application for the whole of the relevant period at any time after 1 July 2008. The Registrar’s decision to adjust the assessment did not occur until 18 September 2008. The provisions do not appear to impose any limitation upon the Registrar in amending the child support assessment as a result of the reconciliation, despite the inordinate delay, and in spite of the fact that the delay has resulted in the applicant no longer being able to seek a review of the relevant assessment.
As a result, the applicant seeks judicial review of the decision on the basis of the following grounds:
a)Doctrine of estoppel in pais applies to period 1/07/2001-11/10/2001
b)Respondent induced the Applicant to act to detriment
c)unjust for Respondent to depart from assumption.
With respect to the applicant’s argument that an estoppel in pais applies in this case, the result is relatively clear. The Child Support Registrar has the statutory duty to perform and, although that duty was carried out around six years after the time one would expect it to be carried out, it does not alter the proposition that the Registrar was required by statute to reconcile the estimate. There are a number of cases that establish that estoppel cannot arise to prevent an official from performing a duty imposed upon them by a statute (see: Maritime Electric Co Ltd v General Dairies Ltd [1937] AC 610 at 620; (1937) 1 All ER 748, Howell v Falmouth Boat Construction Co Ltd [1951] AC 837 at 849; (1951) 2 All ER 278, and Chamberlain v Deputy Federal Commissioner of Taxation [1988] HCA 21 at para.20; (1988) 164 CLR 502).
Of course this does not prevent actions with respect to maladministration, nor claims for ex gratia payments, however, neither of these are issues that arise before me.
During the course of argument, issues also arose as to whether or not the legislative scheme would remain constitutionally valid in circumstances where the provisions of the Act in ss.111 and 112 effectively preclude access to the courts for a merits review of the assessment.
In Luten v Lessels [2002] HCA 13; (2002) 210 CLR 333; [2002] FLC ¶98-015; (2002) 187 ALR 529; (2002) 76 ALJR 635; (2002) 28 Fam LR 398; (2002) 23 Leg Rep 2; 49 ATR 471, the High Court found that the power given to the Child Support Registrar was an administrative power and not judicial power. In the course of that decision, the High Court said:
[24] In addition, neither an assessment nor a departure determination is conclusive. In the case of an assessment, after an objection made to the Registrar has been decided, an application may be made to a court for a declaration that an applicant is or is not entitled to an administrative assessment, or to appeal against the assessment (ss 106, 106A, 107, 110). In the case of a departure determination, following the disallowance of an objection either the liable parent or the carer may apply to a court (ss 115-118). In both cases, the court exercises original jurisdiction, and the court has broad powers to override decisions of the Registrar[16].
Gaudron and Hayne JJs said:
[76] Several points emerge from an examination of these features of the Assessment Act. First, as mentioned at the outset, the Registrar's assessment, whether as an administrative assessment or as a departure determination, is the factum by reference to which the statute creates rights for the future which then are to be enforced by resort to the courts; the assessment does not adjudge existing rights. Secondly, the Registrar's assessment, again whether as an administrative assessment or as a departure determination, is not final. It is open to the processes of objection and then "appeal" to a court. Thirdly, so far as administrative assessments are concerned, the statutory processes are wholly administrative. So far as departure determinations are concerned, the Registrar may make such a determination, but need not if the issues are "too complex". If the Registrar does make a departure determination, the party dissatisfied can object and if still dissatisfied go to a court; if the Registrar does not make such a determination, again the party dissatisfied can object and then go to court. In either event the Court will decide the question afresh, without regard to what the Registrar has done.
Similarly Kirby J said:
[131] In a sense, the conferral of discretionary powers may reinforce, as it does in this case, the fact that the determination by the Registrar involves the creation or alteration of rights and liabilities for the future, rather than the conclusive determination of already existing rights characteristic of the exercise of the judicial power. Moreover, departure determinations are not finally binding or conclusive as such. Under Div 4 of Pt 7 of the Assessment Act, following the completion of specified administrative steps[182], either a liable parent or a carer entitled to child support may apply to a court of competent jurisdiction for a "departure order"[183]. In practice, the court hearing such an application engages in a rehearing of the question as to whether the provisions relating to the administrative assessment should be departed from[184].
Callanan J said:
[194] The relevant decisions are appealable and effectively by way of a hearing de novo, even though the Acts refer to a review.
The limitation period appears to change the nature of the legislative scheme in a way that was relevant in the decision in Luten & Lessels.
However, a number of the other powers of review by the court that were relied upon in Luten & Lessels (those set out in ss.106 to 110) remain (although now in the Child Support (Registration and Collection) Act 1988, but in substantially the same form).
I have reflected upon this issue for some time and ultimately concluded that it could not be said that it is clear that the scheme, or any particular part of it, is constitutionally invalid, despite the arguments raised before me. In these circumstances, as a trial level court, it is appropriate to proceed on the basis that the legislation is valid. The question of constitutional validity has been raised in a s.78B notice and can properly be the subject of an appeal to the Full Court of the Federal Court.
I therefore decline to allow the application on this basis.
As the applicant has not been successful on the grounds raised, I therefore refuse the appeals with respect to each of the Social Security Appeals Tribunal decisions and the application for judicial review of the Registrar’s decision to reconcile the applicant’s estimate.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller.
Date: 13 May 2013
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