Tuck and Johns and Anor
[2016] FCCA 860
•15 April 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TUCK & JOHNS & ANOR | [2016] FCCA 860 |
| Catchwords: CHILD SUPPORT – Appeal from AAT – no error of law. |
| Legislation: Child Support (Assessment) Act 1989, ss.98B, 98C, 117 Administrative Appeals Tribunal Act 1975, ss.44, 44AAA |
| Child Support Registrar and Crabbe and Anor [2014] Fam CAFC 10 Minister for Immigration and Multicultural Affairs v Al-Miahi (2001) 65 ALD 141 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 |
| Applicant: | MR TUCK |
| First Respondent: | MS JOHNS |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | ADC 3044 of 2015 |
| Judgment of: | Judge Kelly |
| Hearing date: | 14 December 2015 |
| Date of Last Submission: | 14 December 2015 |
| Delivered at: | Adelaide |
| Delivered on: | 15 April 2016 |
REPRESENTATION
| The Applicant: | In Person |
| The First Respondent: | In Person |
| Counsel for the Second Respondent: | Ms D Smith |
| Solicitors for the Second Respondent: | Department of Human Services |
ORDERS
That the Notice of Appeal filed 17 August 2015 as amended 30 October 2015 is dismissed.
That the Orders pronounced 21 October 2015 are discharged.
That the First Respondent’s Application for costs is dismissed.
That the Applicant’s Application for costs is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Tuck & Johns & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 3044 of 2015
| MR TUCK |
Applicant
And
| MS JOHNS |
First Respondent
And
| CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant, Mr Tuck filed a Notice of Appeal on 17 August 2015 in relation to a decision from the Administrative Appeals Tribunal (“the Tribunal”), Social Services and Child Support Division, dated 13 July 2015. He then filed an Amended Notice of Appeal on 30 October 2015.
The First Respondent, Ms Johns filed her Response on 11 September 2015 and an Amended Response on 19 November 2015.
The hearing proceeded on 14 December 2015 and judgment was reserved to a date to be fixed.
Background
The Applicant and the First Respondent are the parents of the child X, born (omitted) 2010. X is the subject child of a Child Support assessment pursuant to an application for Child Support registered on 24 November 2011, shortly after the parties separated. The First Respondent is noted as having 100% care of the child X.
On 6 May 2014 the SSAT (as it then was) made a determination to depart from the administrative assessment of Child Support under the Child Support (Assessment) Act 1989 (the Assessment Act) for the period 1 July 2013 to 31 October 2014 and found that:
a)the Applicant’s adjusted taxable income should be set at $200,000 per annum;
b)the annual rate of Child Support should be increased by $1,331.00 per annum;
c)the assessment would revert to the administrative formulae in relation to the First Respondent’s adjusted taxable income.
The First Respondent applied for a further departure decision on 3 November 2014, on the basis of X’s special needs, the high cost of educating the child, the high cost of childcare and upon the Applicant’s income, property and financial resources. That Departure Application was refused by a Senior Case Officer on 11 December 2014.
The First Respondent filed an Objection to that decision which was again disallowed on 23 February 2015. Accordingly, the First Respondent lodged an Application for a Review with the AAT on 16 March 2015.
The hearing proceeded before the AAT on 13 July 2015 and the Tribunal published its decision on 21 July 2015 as follows:
“The tribunal sets aside the decision under review and, in substitution, decides that the annual rate of child support otherwise payable by Mr Tuck be increased by $9,560 for the period 1 January 2015 to 31 December 2015 and by $10,000 for the period 1 January 2016 to 31 December 2016.”
The Applicant seeks to challenge this decision. In his Amended Notice of Appeal he seeks the following Orders:
A.That the decision of the AAT (Social Services and Child Support) – Review Number 20015/BC006835 dated 21 July 2015 be set aside.
B.That the Court order the Respondent to pay the costs of the Applicant.
C.Such further or other orders as the Court deems fit.
The Grounds of Appeal on which the Applicant relies are as follows:
“That as a question of law, the AAT, in making its Decision, failed to have proper consideration of all facts as required in order for the Tribunal to be ‘satisfied’:
(a)within the meaning of Section 98C(1)(b) of the Child Support (Assessment) Act 1989 that for the purposes of Section 98C(2)(a), the grounds for departure in Section 117(2)(b)(ii) exist;
(b)within the meaning of Section 98L of the Child Support (Assessment) Act 1989 for the purposes of making a determination under that section,
each of which constitutes grounds of review under:
(a)Section 44AAA(1) of the Administrative Appeals Tribunal Act 1975; and
(b) Section 5(1)(e) (for the reasons set out in Sections 5(2)(a) and (b)) and Section 5(1)(f) of the Administrative Decisions (Judicial Review) Act 1977.”
In her Amended Response, the First Respondent sought the following Orders:
“1.That the amended appeal of Mr Tuck against the decision of the AAT be dismissed and no interference with the decision of the AAT be made;
2.That the stay ordered by this Court on 12 October 2015 be lifted and any arrears created during this period be added back and that the arrears be paid as a lump sum immediately;
3.That the Court grant the mother’s request that the child have her name formally recorded with the Queensland Department of Births, Deaths and Marriages as ‘X’, that is, to allow the adding in of the mother’s maiden name into the child’s surname.
4.That the appellant pay the reasonable costs of the first respondent including the costs of obtaining the transcripts of the AAT hearing and the initial hearing of the appeal; and
5.Any other order as the Court deems fit.”
The Appeal was first listed in the Adelaide Registry of the Federal Circuit Court of Australia on 12 October 2015. The Applicant father and the Respondent mother appeared in person and Ms Smith appeared on behalf of the Child Support Registrar. Both the mother and Ms Smith appeared by telephone. Following submissions, the Court made the following orders:
“1. The proceedings remain in the Adelaide Registry.
2.The Child Support Registrar be joined as the Second Respondent to the proceedings.
3.The Respondents are at liberty to participate in all subsequent hearings by telephone or video link as nominated by the Court.
4. The Applicant file and serve any Amended Appeal upon which he intends to rely within 21 days clearly identifying the grounds of appeal.
5.Leave to the First Respondent to file and serve any Response to the Amended Appeal upon which she intends to rely within a further 14 days.
6.Liberty to the Applicant to file and serve any Amended Outline of Argument on any grounds of appeal by 20 November 2015.
7.The Respondents file and serve their Outline of Arguments by 4 December 2015.
8.The matter is adjourned to 14 December 2015 at 2.15pm for hearing.”
The Applicant relied upon his Outline of Argument filed 17 August 2015. He also relied upon his Affidavits filed 17 August 2015, 30 September 2015 and 13 November 2015.
The First Respondent relied upon her Affidavit material, together with her written Submissions filed 11 September 2015 and her Further Submissions filed 7 December 2015.
The Second Respondent relied upon their written Submissions filed 7 December 2015.
The relevant law
Section 44AAA of the Administrative Appeals Tribunal Act1975 (“AAT Act”) gives the Federal Circuit Court jurisdiction to hear appeals from the AAT, in certain circumstances. The Applicant has also sought to rely upon the Administrative Decisions (Judicial Review) Act 1977 but that legislation does not apply to determinations made by the Child Support Registrar under Part VIA of the Child Support (Assessment) Act 1989.[1]
[1] Section 3, Administrative Decisions (Judicial Review) Act 1977; Schedule 1, sub-section S
The issue for the Tribunal to determine was whether in accordance with ss.98B and 98C of the Assessment Act there should be a departure from an administrative assessment of Child Support. Section 44AAA of the AAT Act imports the terms of Section 44 of the AAT Act. Section 44(1) states that an appeal from the Tribunal lies only on a question of law. This is consistent with the previous appeal regime that applied pursuant to s.110B of the Child Support (Registration and Collection) Act1988 (“the Registration and Collection Act)”.
The definition of “a question of law” has been considered by various higher Courts. The Full Court of the Family Court in Child Support Registrar and Crabbe and Anor[2] summarised the relevant principles as follows (citations omitted):
“(i) The question of whether there is evidence to support a finding of fact or an inference drawn from findings of fact is a question of law (Al-Miahi).
(ii)The making of a finding of fact or the drawing of an inference in the absence of evidence is an error of law (Al-Miahi).
(iii)A wrong finding of fact is not an error of law (Al-Miahi).
(iv)A finding of fact based on reasoning that is ‘demonstrably unsound’ or on an ‘illogical course’ or a ‘faulty process’ of reasoning is not an error of law (Al-Miahi).
(v)Judicial review is not to be over-zealous in seeking to find inadequacy of reasoning by an administrative decision maker; the review of the reasons of an administrative decision maker must not be turned into a reconsideration of the merits of the decision (Wu Shan Liang).
(vi)Section 103X(3)(b) of the Registration and Collection Act (by analogy with s.430 of the Migration Act) requires the SSAT to do no more than set out the findings which it did make on facts which it considered material to the decision which it made (Yusuf).”
[2] (2014) Fam CAFC 10 @ para 54
I agree with the second Respondent that the Applicant’s Amended Notice of Appeal lacks sufficient precision. A party may assert that the Tribunal failed to have proper consideration of the facts, but that assertion alone does not raise a question of law. The difficulty for the Applicant is that his Grounds of Appeal effectively invite the Court to engage in a merits review of the Tribunal’s decision. That goes well beyond this Court’s appellate jurisdiction, which is clearly limited to “a question of law”.[3]
[3] Penman & Child Support Registrar and Anor [2015] FamCAFC 135 at paras.71-73
The Applicant’s Outline of Argument at paragraph 9 sets out a number of specific arguments which can be loosely grouped as follows:
a)The registration process with (omitted) (and further communication between that school and the Applicant).[4]
b)The weight to be placed, or inferences drawn, from the Applicant’s offer to contribute to schooling costs.[5]
c)The child’s actual enrolment at (omitted) College (as opposed to a “good State school, such as (omitted) State School”).[6]
d)The Applicant’s limited available income after 3 August 2015.[7]
[4] Applicant’s Outline of Argument filed 17 August 2015, paras. 9(a), (b)
[5] Supra
[6] Supra, paras. 9(d) and (e)
[7] Supra, para. 9(f)
Registration process with (omitted)
The Applicant’s submissions in relation to the registration process at (omitted) and his subsequent communication with (omitted) is no more than an invitation by the Applicant for this Court to review the merits of the Tribunal’s decision. I am satisfied that the findings of fact made by the Tribunal were open on the evidence and that the application to register the child X at (omitted) demonstrated the parties’ intention that the child may be enrolled at that school, at least at the time the application was lodged.
The Tribunal was entitled to draw conclusions from that application as to the parties’ intentions regarding X’s schooling and the weight to be given to the specific evidence on this topic is a matter for the Tribunal.[8] Similarly, it is a matter for the Tribunal to assess the weight to be placed (if any) upon any subsequent communication, or indeed, absence of communication, between the Applicant and (omitted).
[8] Phelps & Child Support Registrar & Anor(SSAT Appeal) [2015] FCCA 1599 at para.46
On the available evidence, the Tribunal was entitled to make a finding that the parties expected that X would be educated at a private school. An expectation is just that. It is not a guarantee. It is not a promise. It does not mean a parent cannot change their mind and argue for a different educational outcome, as the Applicant is now doing, but the finding that the parents had an expectation of private schooling was well open to the Tribunal.
The Applicant’s offer to contribute to schooling costs
The Tribunal clearly considered the contents of the Applicant’s email forwarded to the First Respondent on 17 August 2014. The Tribunal was alert to the Applicant’s stated preference that X attend at a public school, such as (omitted) State School. Again, the Tribunal was entitled to make a finding that the child, by attending at (omitted) College, was being educated in a manner that was “expected by both parents”, even though it may not have been the Applicant’s preferred outcome.
X’s subsequent enrolment at (omitted) College as opposed to a State school such as (omitted) State School
Again, the Tribunal was clearly alert to the Applicant’s preferred outcome. The Tribunal considered the available evidence and came to a set of conclusions. It is not the role of this Court to interfere with the Tribunal’s findings of fact.
The Applicant’s available income after 3 August 2015
The Tribunal carefully considered the evidence placed before the Court in relation to the Applicant’s employment. The Tribunal made specific findings at paragraph 40 of the judgment, as follows:
“Mr Tuck is a contract (occupation omitted). His 2013/14 adjusted taxable income was $261,864. He told the tribunal his income for 2014/15 was about the same as it was for 2013/14. He went out on his own as a contract (occupation omitted) about four years ago. His current contract expires on 3 August 2015. He has no future work confirmed but hopes to obtain work again.”[9]
[9] The Tribunal Decision published 21 July 2015, para.40
I am satisfied it was well open to the Tribunal to make these findings about the Applicant’s income earning capacity and his ability to pay ongoing child support. The Applicant is again asking the Court to interfere with the Tribunal’s findings, rather than identifying any error of law.
Further ground of appeal
The Applicant pleads a further ground of appeal, to the effect that the Tribunal did not conduct the hearing in a fair or proper manner. Given this submission, I have considered the transcript of the proceedings before the Tribunal on 13 July 2015.
The Applicant says that prior to the commencement of the hearing, he had informed the Tribunal that he was only available for an hour, due to a pre-existing work commitment. In his written submissions, the Applicant points out, and the transcript confirms, that he reminded the Tribunal of his limited availability, when it was time for him to exit the hearing. In response to the Applicant’s comment, the Tribunal member, Mr K, suggested that he could continue hearing further submissions from the First Respondent.
Not surprisingly, the Applicant pointed out that he would not then be privy to the whole “discussion” to which Mr K replied “Alright, well that’s up to you, but the hearing was scheduled for more than an hour, so it’s up to you whether you can attend.”[10] As it transpired, the First Respondent did not seek to make any further substantive submissions and both parties remained on the line for a brief period until the hearing concluded.
[10] Transcript of Tribunal hearing 15 July 2015, page 24
The Applicant argues that the Tribunal’s offer to continue the hearing in his absence indicated “a lack of process by the Tribunal and potentially bias by the Tribunal”.
With due respect to the Applicant, this submission is baseless. The Applicant was a party to proceedings before the Tribunal. As a party, it is his responsibility to ensure that he would be available for the whole of the Tribunal hearing, a responsibility that he should well understand, given that he is a (occupation omitted). If he chose to leave before the other party had concluded their submissions, that would be a matter for him.
I am satisfied the Tribunal process was properly conducted and provided a fair opportunity for each party to present their case.
Conclusion
The Court is not satisfied that the Applicant has identified any error of law in the decision of the AAT and, accordingly, his Appeal is dismissed.
The First Respondent, by her Response and Amended Response, sought that the Appeal be dismissed and that the Stay Order be lifted. In the circumstances where the Court has concluded that the Appeal is without merit and should be dismissed, I will discharge the Stay Order pronounced on 21 October 2015.
The First Respondent sought additional Orders in relation to the child’s name, but that is not a matter that can be dealt with through a Child Support Appeal, or Response. Such matters are parenting issues and need to be addressed through mediation in the first instance. If that process is unsuccessful, then an Application may be filed pursuant to the Family Law Act 1975.
I dismiss the Applicant’s application for costs, given that he was unsuccessful. The First Respondent also sought costs in the event the Appeal was dismissed. However, in circumstances where both parties were self represented, I decline to make an Order for costs in her favour. I note the Child Support Registrar did not seek any Order as to costs.
I now make Orders as published at the commencement of these Reasons.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Kelly
Date: 15 April 2016
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