VXQB v Child Support Registrar

Case [2021] FCA 48

FEDERAL COURT OF AUSTRALIA

VXQB v Child Support Registrar [2021] FCA 48

Appeal from: Application for extension of time:  VXQB and Child Support Registrar [2020] AATA 697
File number: WAD 219 of 2020
Judgment of: COLVIN J
Date of judgment: 2 February 2021
Catchwords: FAMILY LAW AND CHILD WELFARE - application for extension of time to appeal from decision of the Administrative Appeals Tribunal second review - where AAT second review affirmed decision of AAT first review to set aside decision of objections officer to revoke care percentage determination - objection to competency of appeal by Child Support Registrar - whether in interests of justice to grant extension of time - whether merit demonstrated in applicant's contentions - whether draft notice of appeal states recognisable question of law - application dismissed - objection to competency upheld
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) s 44

Child Support (Assessment) Act 1989 (Cth) ss 7B, 50, 54F

Child Support (Registration and Collection) Act 1988 (Cth) ss 80A, 87, 89, 96A, 97C, 110V
Cases cited:

3D Scaffolding Pty Limited v Commissioner of Taxation [2009] FCAFC 75

Allan v Transurban City Link Ltd [2001] HCA 58; (2001) 208 CLR 167

Attorney‑General (NSW) v Quin (1990) 170 CLR 1

Brown v Repatriation Commission (1985) 7 FCR 302

BTR plc v Westinghouse Brake & Signal Co (Aust) Ltd (1992) 34 FCR 246

Child Support Registrar v MQMV [2019] FCA 1171

Federal Commissioner of Taxation v Brixius (1986) 16 FCR 359

Guo v Minister for Immigration and Border Protection [2018] FCAFC 34

Haritos v Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315

Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344

Jackamarra v Krakouer (1998) 195 CLR 516

Jamal v Secretary, Department of Social Services [2017] FCA 916

MZABPv Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585

MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110

Norbis v Norbis (1986) 161 CLR 513

Polec and Staker [2011] FMCAfam 959

Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; (2001) 207 CLR 72

Singh v Minister for Immigration and Border Protection [2017] FCAFC 195

Tankey v Adams [2000] FCA 1089; (2000) 104 FCR 152

Yao v Secretary, Department of Education, Employment and Workplace Relations [2010] FCA 18
Division: General Division
Registry: Western Australia
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 62
Date of hearing: 25 January 2021
Counsel for the Applicant: The Applicant appeared in person
Counsel for the First Respondent: Mr A Burgess
Solicitor for the First Respondent: Sparke Helmore Lawyers
Counsel for the Second Respondent: The Second Respondent filed a submitting notice

ORDERS

WAD 219 of 2020
BETWEEN:

VXQB

Applicant
AND:

CHILD SUPPORT REGISTRAR

First Respondent

BQJQ

Second Respondent

ORDER MADE BY:

COLVIN J

DATE OF ORDER:

2 FEBRUARY 2021

THE COURT ORDERS THAT:

1.The objection to competency of the proposed…

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AGLC
VXQB v Child Support Registrar [2021] FCA 48
Case
[2021] FCA 48
Decision Date

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, VXQB applied for an extension of time to appeal the decision of the Administrative Appeals Tribunal (AAT) which affirmed a decision of the AAT to set aside a decision of the objections officer to revoke a care percentage determination. The Child Support Registrar objected to the competency of the appeal, arguing that the application was made outside the statutory time limit and that the draft notice of appeal did not state a recognisable question of law. The court had to determine whether the application for an extension of time was in the interests of justice and whether there was merit in the applicant's contentions.

The court held that the application for an extension of time was not in the interests of justice. The applicant did not demonstrate any merit in their contentions as the decision of the Registrar was a valid decision and the applicant failed to demonstrate any exceptional circumstances that would warrant an extension of time. Additionally, the draft notice of appeal did not state a recognisable question of law, as it did not clearly identify the legal issue that the court was supposed to review. The court also held that the objection to competency of the appeal was upheld as the application was made outside the statutory time limit.

The court dismissed the application for an extension of time and upheld the objection to competency of the proposed appeal. The applicant was ordered to pay the first respondent's costs to be assessed if not agreed. The court's decision is in line with the principles of administrative law, which require that applications for extensions of time be made within the statutory time limit and that the applicant demonstrates exceptional circumstances to warrant an extension of time. The court also emphasised the importance of clearly identifying the legal issue that the court is supposed to review in a draft notice of appeal.

Orders

Orders of the court

1. The objection to competency of the proposed appeal is upheld.

2. The application for an extension of time is dismissed.

3. The applicant pay the first respondent's costs to be assessed if not agreed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The evidence that is before the Court indicates that after the notification, on 10 July 2018, the Registrar (by a delegate) determined that notwithstanding that the child was living with her grandparents there should be no change to the determination that the mother had 100% care of the child. I will refer to this decision not to change the care percentage determination as the original decision. The precise terms of, and reasons for, the original decision are not known on the present application because they are not in evidence. However, given the nature of the legislative structure it appears to have been a decision not to revoke the existing determination of the care percentage which was to the effect that the mother had 100% care of the child. Under s 80A of the Child Support (Registration and Collection) Act 1988 (Cth) (CSRC Act) a parent liable to pay child support may lodge with the Registrar an objection to a care percentage decision (terminology that includes a decision such as the original decision). The power of the Registrar where an objection is lodged is to disallow the objection or to allow the objection in whole or in part: s 87(1)(b). The applicant has placed before the Court a letter provided to the applicant by the National Manager, Multicultural and Tailored Services in the Department of Human Services (Letter). The Letter is dated 6 December 2019 and was prepared well after the relevant events and in response to complaints about the process raised by the applicant. It describes some of the relevant history. It refers to an objection being lodged to the original care percentage decision (which appears to be a reference to the original decision). It says that the objection decision maker made a decision to change the percentage of care of the mother to 8% with the applicant's percentage continuing to be assessed at zero. It appears that the objection decision was made on 13 September 2018. Again, the terms of the actual decision are not in evidence. However, in order for the decision to specify a percentage the objection decision maker must have decided to revoke the existing care percentage and to exercise the power to determine a new care percentage. In order to be an eligible carer for the purposes of the CSA Act a person must at least have shared care of the child: s 7B. Therefore, the decision by the objection decision maker (described elsewhere as the objections officer) terminated the obligation of the applicant to provide child support under the CSA Act. It appears that the objections officer also expressed views as to when the termination would take effect. The Registrar implemented the determination by the objections officer with effect from 18 July 2017 (that is to say, it was backdated by more than a year). The materials before the Court on the present application indicate that there was then a considerable dispute as to whether the backdating was appropriate. In the Letter (sent, as I have indicated, well after the relevant events) it is said that the objections officer incorrectly stated that the consequence of allowing the objection was that the changed care percentage took effect from when the care change occurred (when the child starting living with the grandparents) rather than from when the change was notified by the applicant.

Ratio Decidendi

Legal Principle Established

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