Tully v Child Support Registrar
[2017] FCCA 218
•16 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TULLY v CHILD SUPPORT REGISTRAR & ANOR | [2017] FCCA 218 |
| Catchwords: CHILD SUPPORT – Appeal of a decision of the Administrative Appeals Tribunal – three grounds of appeal – applicant unsuccessful on all grounds – appeal dismissed. |
| Legislation: Administrative Appeals Tribunal Act 1975, ss.2A, 44AAA Family Law Act 1975, s.76(1) |
| Cases cited: Child Support Registrar & Crabbe and Anor [2014] FamCAFC 10 Haritos v Commission of Taxation [2015] FCAFC 92 Kostas v HIA Insurance [2010] HCA 32 Minister of Immigration v Wu Shan Liang (1996) 185 CLR 259 Penman & Child Support Registrar and Anor [2015] FamCAFC 492 |
| Applicant: | MR TULLY |
| First Respondent: | CHILD SUPPORT REGISTRAR |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 522 of 2016 |
| Judgment of: | Judge Cassidy |
| Hearing date: | 18 November 2016 |
| Date of Last Submission: | 18 November 2016 |
| Delivered at: | Brisbane |
| Delivered on: | 16 February 2017 |
REPRESENTATION
| The Applicant appeared in person |
| Special Counsel for the First Respondent: | Ms Rayment |
| Solicitors for the First Respondent: | Mills Oakley Lawyers |
| Counsel for the Second Respondent: | Dr Sayers |
| Solicitors for the Second Respondent: | Rice Naughton |
ORDERS
That the amended notice of appeal filed on 21 August 2016 be dismissed.
That the applicant pay the first respondent’s costs fixed in the sum of $6,948.00 within twenty-eight (28) days of the date of this Order.
That the second respondent file and serve written submission and any affidavit material in relation to the indemnity costs application by no later than 4.00pm on 16 March 2017.
That the applicant file and serve written submissions in reply and any affidavit material in relation to the indemnity costs application by no later than 4.00pm on 13 April 2017.
That this matter be adjourned for judgment at 9.30am on 4 May 2017 in the Federal Circuit Court of Australia at Brisbane.
IT IS NOTED that publication of this judgment under the pseudonym Tully v Child Support Registrar & Anor is approved pursuant to s.110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 522 of 2016
| MR TULLY |
Applicant
And
| CHILD SUPPORT REGISTRAR |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an appeal by Mr Tully from a decision of the Administrative Appeals Tribunal (‘the AAT’) in relation to an assessment of child support. That decision was made by Ms K Buxton on 4 May 2016. Ms Buxton’s decision was:
“The tribunal sets aside the decision under review and, in substitution, decides that for the period 1 January 2016 to 31 December 2017 the annual rate of child support is increased by $15,600 per annum (for private school fees).”
The Child Support Registrar (‘the Registrar’) and the mother, Ms Tully, seek an order that the appeal be dismissed.
Background
The applicant and the second respondent are the divorced parents of three children; X born (omitted) 2000, Y born (omitted) 2011 and Z born (omitted) 2003.
The applicant cares for the children approximately 35% of the time and the second respondent has the care of the children for the remaining 65% of the time.
On or around 18 January 2016 the second respondent lodged a review application with the AAT. The second respondent sought to review a departure determination that was made by a Departmental Objections Officer on 22 December 2015. The officer determined that for the period 1 January 2016 to 31 December 2016 the annual rate of child support payable by the applicant should be increased by $4,626, and by $4,765 from 1 January 2017 to 31 December 2017.
The issue before all of the decision makers in the department and the decision maker sitting on the AAT related to the private school fees incurred to send the three children to private schools. The boys attend (omitted) School and the daughter attends (omitted) School.
The conclusions of the decision maker of the AAT were:
a)that an administrative assessment does not include the cost of privately educating the children;
b)the decision maker was satisfied that a departure ground existed in relation to the school fees; and
c)that it was just and equitable for Mr Tully to contribute to those fees by way of an increase of child support payable by Mr Tully for the children of the assessment.
The increase in child support of $15,600 per annum amounted, according to the decision maker, to Mr Tully paying approximately 80% of the children’s school fees and the mother paying the remaining 20%. The decision maker considered that the amount was a just and equitable outcome and otherwise proper.
The Material
The applicant relied upon the following material:
a)Amended notice of appeal filed by the applicant on 21 August 2016; and
b)Outline of submissions filed by the applicant on 20 October 2016.
The Child Support Registrar relied upon the written submissions filed on 11 November 2016.
The second respondent relied upon the following material:
a)The affidavit of Ms Tully filed on 19 October 2016 (Annexure T1 not relied upon); and
b)Written submissions filed by the second respondent on 4 November 2016.
The Law
An appeal of a decision of the AAT in relation to child support is brought under s.44AAA of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’).
The applicant filed the notice of appeal on 13 June 2016 and the amended notice of appeal on 21 August 2016 from a decision of the AAT dated 4 May 2016.
An appeal brought under s.44AAA of the AAT Act is limited to an appeal on a question of law.
A particular question of law which is set to arise from a decision of a tribunal should be stated with sufficient precision (Haritos v Commission of Taxation [2015] FCAFC 92 at [97]).
I accept in Child Support Registrar & Crowley and Anor [2015] FamCAFC 76 the Full Court of the Family Court stated at paragraph 22-24:
“[22] … Appeals from the Tribunal to, relevantly, the FCCA lie only on a question of law (s 110B of the Registration Act).
…
[24] A consequence of the confined nature of appeals from the Tribunal to the FCCA is a requirement that the grounds of appeal to that court be drawn with particular precision and with a precision which bears that restriction firmly in mind.”
I accept that the principles that emerge from the authorities in relation to child support appeals have been considered in Child Support Registrar & Crabbe and Anor [2014] FamCAFC 10 and provide for the following:
“- 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).
- 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).
- A wrong finding of fact is not an error of law (Al-Miahi).
- 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).
- 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).
- Section103X(3)(b) of the Collection Act (by analogy with s430 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).”
A mere assertion that the AAT “erred at law” in making a particular finding does not raise a question of law (Penman & Child Support Registrar and Anor [2013] FCCA 492 at [112]-[122]).
Grounds for Departure
The applicant in this matter, in the amended notice of appeal filed on 21 August 2016, set out three grounds that the applicant alleges are the basis for the appeal:
“[9] That the tribunal failed to adhere to procedural fairness in accepting inappropriate evidence and hence was unable to properly consider the matters before it.
[10] That the tribunal, on not having the power to decide if fraud was involved exceeded its (administrative) power when it subsequently made a judgment based on what was just, equitable and otherwise proper.”
The third ground was:
“[11] That the tribunal erred in law in inferring from the evidence presented that the children were being educated in a manner expected by the Appellant.”
Which was amended at the hearing to read:
“[11] That the tribunal erred in law in the drawing of an inference that the children were being educated in a manner expected by both parenting in the absence of evidence.”
Ground 1
“[9] That the tribunal failed to adhere to procedural fairness in accepting inappropriate evidence and hence was unable to properly consider the matters before it.”
I note that there are no particulars in support of this ground and I accept that no question of law is identified.
The submissions set out in the applicant’s outline of submissions filed on 20 October 2016 (pages 4-17) identify five allegedly unfair procedures that occurred during the AAT proceeding.
The First Procedure
The first is identified at paragraph 29 of the submissions filed on 11 November 2016 on behalf of the Child Support Registrar (‘the Registrar’):
“[29] First, the AAT asked the second respondent “… to provide documents showing the liability to pay school fees each parent has, but chose to obtain selective fraudulent documents in relation to Z’s enrolment and submit them as evidence. These documents and Mr Tully’s allegations of fraud did not come to light until oral submissions were put forward during the tribunal meeting itself. Ms Tully lied during the tribunal hearing and failed to make a full and frank disclosure of the school documents.””
I accept that the AAT routinely requires both the applicant and the respondent to obtain evidence in relation to the decision; therefore the applicant was at liberty to obtain evidence and place it before the AAT. I accept the submission that the applicant could have obtained the evidence that he now seeks to place before this Court and put the matter before the AAT.
I note that there was an exchange between Mr Tully and the decision maker in relation to the documents that he alleges were fraudulently signed by his wife in relation to enrolments of both the young boys and the daughter.
The Second Procedure
A significant aspect of the case is Mr Tully’s admission to the decision maker that he agreed to enrol Z into (omitted) School at the start of grade seven in 2016 and he conceded that that was something he did agree to. Mr Tully said that the application for enrolment was not signed by him and argued that it was completely invalid. In my view, the later agreement overtakes any concerns Mr Tully may have had about the process of the child being enrolled in the private school.
The decision maker had evidence of an agreement that the parties reached in 2012 to send the boys to private schools and to pay equally for that. The decision maker had an admission from Mr Tully that he agreed to enrol Z into (omitted) School at the start of 2016 and the decision maker had a submission from the father that fraud was committed on documents executed by the wife prior to the agreements entered into by the parties to enrol the children into private schools.
I accept that the time when the expectation of how the children would be educated is often to be determined by looking at the parties expectations prior to separation. In Mabry & Mabry & Anor (SSAT Appeal) [2010] FMCAfam 388 at paragraph 78 Judge Riethmuller says:
“Unfortunately the tribunal did not approach school fees in the manner provided in the Act. The first step is to determine whether the child is ‘being … educated … in the manner that was expected by his or her parents.’ The simplest method of proof of the parent’s expectations is to look to the past conduct of the parents, often evidenced by the child attending a particular school before separation. However, this is not the only method of proof of the expectations of the parents.”
In the present case the boys were being privately educated and Z was attending a state school.
The Third Procedure
The applicant submits that at the conclusion of the tribunal hearing, the tribunal member was still not aware of what was fraudulent and what was not. I accept the submission that this is really inviting the Court to engage in an impermissible merits view. There was evidence available to the decision maker to allow her to come to a conclusion in relation to the expectations of the parents and how they would educate the children. The view that another decision maker might have come to a different decision is of no consequence.
The evidence of the boys attending the private school prior to separation, the signed 2012 agreement to continue the boys enrolment at a private school and the agreement that Z would attend (omitted) School at the beginning of 2016 was sufficient to support the decision maker’s conclusion without needing to consider the documents the applicant alleges were fraudulent.
The Fourth Procedure
The applicant says that by admitting the fraudulent evidence, not adequately assessing the veracity of the evidence before the decision maker and then not seeking a means to gather further evidence in light of serious claims, Ms Buxton did not conduct a fair tribunal hearing and hence the rules of natural justice were not adhered to.
I accept that it is for the applicant to make out his case before the decision maker. It is not for the AAT to make further enquiries or obtain information beyond what is provided to it (Minister for Immigration and Citizenship v SZIAI and Another (2009) 259 ALR 429).
The Fifth Procedure
The fifth procedure that Mr Tully alleges was unfair is summarised as:
“Greater formality in the collecting and consideration of the evidence was required in establishing the special circumstances of the case.”
In my view it was a matter for the applicant to place whatever evidence he wished to before the AAT. The applicant’s submissions in relation to fraud were made at the conclusion of the hearing. The applicant would have been entitled to seek an adjournment upon receipt of those documents if he considered that they were relevant to his case.
There was other evidence that supported the conclusion that the decision maker came to in relation to the parent’s expectation about the children attending a private school. This included that the father signed an agreement in 2012. The father conceded for the boys to attend a private school and conceded that Z should attend at (omitted) School at the beginning of 2016. While the parties were together the boys attended a private school. All of this evidence was relevant to the decision.
Ground 2
“[10] That the tribunal, on not having the power to decide if fraud was involved exceeded its (administrative) power when it subsequently made a judgment based on what was just, equitable and otherwise proper.”
I accept that, again, no particulars have been provided to support the ground and that it fails to identify a question of law.
The decision maker was made aware of the allegation of fraud in the final submissions. The second respondent denied the fraud but the decision maker did not need to make a determination with respect to the fraud because there was other evidence that she was able to use to come to the conclusions that she did.
The other evidence of the children’s enrolment in the private schools, as consented to by both parties, in my view, was available to the decision maker. I accept the decision maker’s observation that the alleged fraudulent documents were not relevant because there was other and later evidence of the expectation of the parties.
With respect to this ground, the decision maker placed little weight on the disputed documents and the disputed documents did not require any further investigation of the forgery allegations because of the other evidence the decision maker relied on to come to her conclusion.
I accept that it is not necessary for the tribunal, or indeed, it is not the case that the tribunal was obliged to assess the veracity of the documents because the decision maker found them of little significance and there was no point to gathering further evidence in respect of the documents (s.2A of the AAT Act; Minister of Immigration v Wu Shan Liang (1996) 185 CLR 259 at 57).
Ground 3
The third ground was:
“[11] That the tribunal erred in law in the drawing of an inference that the children were being educated in a manner expected by both parenting in the absence of evidence.”
In my view the ground lacks particulars and fails to identify a question of law. In terms of the expectations, the simplest method of proof of the parents’ expectation is to look at the past conduct of the parents (Mabry & Mabry & Anor (SSAT Appeal) [2010] FMCAfam 388) which is consistent with an expectation that the parents wish these children to be educated at private schools.
I note in Mee v Ferguson (1986) 10 FamLR 971 that the Full Court of the Family Court considered a similar provision (now repealed) s.76(1) of the Family Law Act 1975 (Cth)(as amended ‘the Act’) said:
“Thirdly, subpara. (e) directs specific attention to the question of education. It refers to the manner in which the child “is being”, and which the parties to the marriage “expected” the child to be educated. That provision appears to have direct relevance to the issue of private school education, particularly its reference to the manner in which the parties “expected” the child to be educated. The word “expected” in the past tense presumably relates to some expectation of the parties at a point in time earlier than the hearing.”
The evidence available to the decision maker allowed her to arrive at a factual finding that the applicant and second respondent intended for the children to be educated at private schools.
I accept that there was evidence of the parents’ expectations and the error of law arises only if there is no evidence before the Tribunal that was capable of supporting a finding in regard to the parents’ expectations (Kostas v HIA Insurance [2010] HCA 32).
If there is any argument it is not that the tribunal erred in law, but that the tribunal acted contrary to, or against, the weight of the evidence. I accept that it is well-settled that such a challenge is not an error of law and cannot be entertained by this Court in the absence of an error of law, therefore there is no subject matter for the appeal (Child Support Registrar & Crabbe and Anor [2014] FamCAFC 10).
Conclusion
I accept that Mr Tully places great weight on two matters of fact which he argues vitiate the tribunal’s chain of reasoning, and he presents these matters of fact as if they were errors of law. These matters of fact are:
a)Whether or not Mr Tully’s signature has been forged on a number of school enrolment-related documents; and
b)Mr Tully’s own expectations for how the children would be educated.
In relation to the question of forgery, even if there was a finding that a forgery had occurred it would only be an appellable error if there was no other evidence before the tribunal that was capable of supporting a finding as to the parents’ expectations for the children’s education. There is evidence of the 2012 agreement for the private school education, the payment of the private school expenses by the parents and Mr Tully’s own evidence of his expectations regarding the children’s education.
This was all evidence that was capable of supporting the finding made by the decision maker.
Mr Tully’s expectations
Even if it was available to accept that the applicant had a qualified or conditional commitment to private school education of his children, this only goes to his capacity, it does not go to a finding about his expectation. The applicant’s expectation was that the children attend private schools. There was evidence about Mr Tully’s expectations and therefore no error of law arose.
I accept that therefore the appeal should fail and be dismissed.
Costs
The Registrar is seeking costs on scale, fixed in accordance with Division 2 of Schedule 1of the Federal Circuit Court Rules 2001 (Cth).
The second respondent is seeking costs on an indemnity basis. I will make directions for the parties to file any additional material in relation to the indemnity costs application.
Orders
I am satisfied that I should make the following orders:
a)that the application be dismissed; and
b)that the applicant pay the first respondent’s costs fixed in accordance with Division 2 of Schedule 1of the Federal Circuit Court Rules 2001.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Cassidy
Date: 16 February 2017
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