Walter v Fisher
[2022] FedCFamC2G 136
•4 March 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Walter v Fisher [2022] FedCFamC2G 136
File number(s): LNG 69 of 2020
LNG 82 of 2020Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 4 March 2022 Catchwords: FAMILY LAW – CHILD SUPPORT – application seeking judicial review of related child support decisions of the Administrative Appeals Tribunal – where the applicant made an application for a departure determination – where the applicant objected to the first respondent’s adjusted taxable income being used for the purposes of the administrative assessment of child support – whether the applicant can establish an error of law – no jurisdictional error established – both applications dismissed with costs. Legislation: Administrative Appeals Tribunal Act 1975 (Cth), ss42B, 44, 44AAA
Child Support (Assessment) Act 1989 (Cth), ss 56, 57, 98C, 112, 117Cases cited: Maharjan v Minister for Immigration and Border Protection (2017) 258 FCR 1 Division: Division 2 General Federal Law Number of paragraphs: 114 Date of last submission/s: 3 May 2021 Date of hearing: 3 May 2021 Place: Melbourne Solicitor for the Applicant: The applicant appearing in person Solicitor for the First Respondent: The first respondent appearing in person Solicitor for the Second Respondent: Mr Eskerie ORDERS
LNG 69 of 2020
LNG 82 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS WALTER
ApplicantAND: MR FISHER
First RespondentCHILD SUPPORT REGISTRAR
Second Respondent
ORDER MADE BY:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
4 MARCH 2022
THE COURT ORDERS THAT:
1.The applicant’s application in LNG69/2020 be dismissed.
2.The applicant’s application in LNG82/2020 be dismissed.
3.The applicant pay the second respondent’s costs in relation to both LNG69/2020 and LNG82/2020 in a sum to be fixed if not agreed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Walter & Fisher has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
DEPUTY CHIEF JUDGE MERCURI:
INTRODUCTION
Before the court are two appeals brought by the applicant under section 44AAA of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’).
In LNG69/2020, the applicant appeals from a decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal (‘the Tribunal’) made on 10 September 2020. By that decision, the Tribunal affirmed a decision of a delegate of the Child Support Registrar disallowing the applicant’s objection to a decision not to make a determination departing from the administrative assessment in force in relation to the children under section 98C of the Child Support (Assessment) Act 1989 (‘Assessment Act’).
In LNG82/2020, the applicant appeals from a separate decision of the Social Services & Child Support Division of the Tribunal made on 13 November 2020. By that decision, the Tribunal affirmed a decision of a delegate of the Child Support Registrar disallowing the applicant’s objection to a decision that the first respondent’s adjusted taxable income (‘ATI’) would be used for the purposes of the administrative assessment of child support.
BACKGROUND
The applicant and the first respondent are the separated parents of two children. A child support assessment has been in place for the children since 15 March 2002. While the older child ceased to be an eligible child for child support in December 2019, orders have been made for the first respondent to make adult child maintenance payments in respect of that older child.
As stated, LNG69/2020 is an appeal from a decision made by the Tribunal on 10 September 2020 and LNG82/2020 is an appeal from a decision of the Tribunal made on 13 November 2020. Before addressing these applications, it is appropriate to briefly summarise the history of other applications filed by the applicant in relation to child support assessment made in relation to the children.
Application for departure determination on 6 August 2018
On 6 August 2018, the applicant made an application for a departure determination in relation to the child support assessment on the basis that:
·the costs of maintaining the child were significantly affected by the child’s special needs; and
·the child support assessment was unfair because of the first respondent’s income, property and financial resources.
The special needs relied upon related to various orthodontic and other medical expenses incurred in relation to the older child. In relation to orthodontic treatment, the applicant stated that she had already paid $1,900 for stage one of that treatment some years ago and that the older child now requires additional orthodontic treatment at a cost of $7,000. The applicant also relied upon costs that she had incurred for the children’s speech therapy, chiropractic treatment, tonsillectomy, adenoid removal and grommets.[1] Some of these expenses incurred by the applicant dated back to 2008.[2]
[1] Section 46(1)(a) Documents at page 11.
[2] Section 46(1)(a) Documents at page 12.
Insofar as the first respondent’s income, property and financial resources are concerned, it has consistently been put by the applicant that the first respondent has understated his income and has failed to fully disclose financial resources available to him. At various times, the applicant has also raised concerns about the manner in which the second respondent has assessed the first respondent’s adjusted taxable income.
Decisions of Child Support Registrar on 15 November 2018 and 21 January 2019
On 15 November 2018, a delegate of the Child Support Registrar refused the applicant’s application.[3] On 29 November 2018, the applicant objected to the November 2018 decision.
[3] Section 46(1)(a) Documents at pages 8 to 13.
By decision made on 21 January 2019, the objection was allowed in part.[4] The objection decision noted ‘the costs attributable to (the older child’s) special needs (orthodontic and speech therapy treatment) do significantly affect the costs of maintaining him overall.’ [5] The decision-maker went on to find that the costs of the orthodontic and speech therapy treatment was over $7,000, and that the parents should each contribute half of these costs.[6]
[4] Section 46(1)(a) Documents at pages 14 to 21.
[5] Section 46(1)(a) Documents at page 18.
[6] Section 46(1)(a) Documents at page 19 to 20.
Decision of the Tribunal on 16 July 2019
On 29 January 2019, the applicant sought a review of the Child Support Registrar’s January 2019 decision in the Social Services & Child Support Division of the Tribunal.
On 16 July 2019, the Tribunal varied the January 2019 decision and increased the first respondent’s child support to reflect the conclusion reached that the father ought to be responsible for 75% of the orthodontic and speech therapy costs.[7]
[7] Section 46(1)(a) Documents at pages 22 to 37.
Relevantly, in its July 2019 decision, the Tribunal noted:
12 A substantial part of the material provided by [the applicant] to the Department referred to expenses incurred prior to 6 February 2017, the 18 month period from the date of the application for which the Registrar (or the Tribunal standing in place of the Registrar) may make a departure determination, in accordance with section 98S of the Act.
13.… I do not have jurisdiction to make a determination for a period of more than 18 months before [the applicant’s] application for a change of assessment on 6 August 2018. My review is therefore limited to the matters contemplated by the objections officer in their decision of 21 January 2019.[8]
[8] Section 46(1)(a) Documents at pages 24 to 25.
The Tribunal further concluded that the applicant had incurred total expenses of $2,330 in 2018 for orthodontic costs and speech therapy and that she would need to pay the balance of $5,200 in orthodontic costs over the following two years.
After considering all of the arguments put to it, the Tribunal concluded that the total costs of the orthodontic treatment and speech therapy were $7,530 and that the first respondent ought to contribute 75% to these costs, to be paid over two years. The Tribunal therefore concluded that:
The decision under review is varied so that the rate of child support payable by [the first respondent] is increased by $2,824 per annum from 1 November 2018 to 31 October 2020.[9]
[9] Section 46(1)(a) Documents at page 37.
On 28 January 2020, in separate proceedings brought by the applicant against the first respondent, Judge McGuire also ordered that the first respondent contribute $184 per week by way of adult child maintenance for the older child, who had turned 18 by that stage, and that such payments continue until 1 December 2022.[10]
[10] Section 46(1)(a) Documents at pages 352 to 353.
It is against this background that the two matters currently before the court arise.
PROCEDURAL HISTORY – LNG69/2020
As noted, the Tribunal’s July 2019 decision only related to those costs incurred by the applicant in the 18 months prior to her application for a departure determination on 6 August 2018.
Application to Federal Circuit Court on 7 January 2019
On 7 January 2019, the applicant filed an application in this court for an order under the Assessment Act granting leave to the Child Support Registrar to change an assessment more than 18 months old.[11] On 8 May 2019, Judge McGuire (as he then was) made an order pursuant to section 112 of the Assessment Act permitting an application for a departure order out of time to be made and referring the matter to the Child Support Registrar for determination.[12]
[11] Section 46(1)(a) Documents at pages 77 to 85 and pages 213 to 216.
[12] Section 46(1)(a) Documents at page 87.
Application for departure order on 9 December 2019
On 9 December 2019, the applicant then applied for a departure from the administrative assessment of child support for the two children for the period from 7 January 2012.[13]
[13] Section 46(1)(a) Documents at page 52 and following.
The grounds on which a departure order may be made are set out in section 117(2) of the Assessment Act. In her application, the applicant relied upon two of the statutory grounds, namely that the children have special needs and that the assessment did not correctly reflect the first respondent’s income, property and/or financial resources.[14]
[14] Section 46(1)(a) Documents at page 53.
Decisions of Child Support Registrar on 26 February 2020 and 29 May 2020
On 26 February 2020, a delegate of the Registrar found that the reasons identified by the applicant as the basis for a departure order were not satisfied.[15]
[15] Section 46(1)(a) Documents at pages 315 to 323.
On 4 March 2020, the applicant lodged an objection to the delegate’s decision.[16] On 13 April 2020, the first respondent responded to the applicant’s objection and made a cross-application for a departure order. [17]
[16] Section 46(1)(a) Documents at pages 324 to 326.
[17] Section 46(1)(a) Documents at pages 336 to 361.
On or about 6 May 2020, the applicant provided a reply to the first respondent’s response and cross-application.[18]
[18] Section 46(1)(a) Documents at pages 384 to 466.
On 29 May 2020, an objections officer disallowed the objection and affirmed the decision made by the delegate of the Registrar on 26 February 2020 (‘objection decision’).[19]
[19] Section 46(1)(a) Documents at pages 472 to 481.
Decision of the Tribunal on 10 September 2020
The applicant applied to the Social Services & Child Support Division of the Tribunal for a review of the objection decision on 2 June 2020.[20] The applicant provided a written submission to the Tribunal.[21] On 10 September 2020, the Tribunal handed down its decision in relation to the applicant’s application for review filed 2 June 2020.
[20] Section 46(1)(a) Documents at pages 2 to 7.
[21] Section 46(1)(a) Documents at pages A11 to A19.
In that decision, the Tribunal affirmed a decision of an objections officer of the Child Support Registrar disallowing the applicant’s objection to a decision not to make a determination departing from the administrative assessment in force in relation to the children under section 98C of the Assessment Act.
At paragraphs [1] to [9] of its decision record, the Tribunal sets out the history to this matter.
At paragraph [13] of the decision record, the Tribunal notes that in light of the 16 July 2019 Tribunal decision, which relates to the period of 1 November 2018 to 31 October 2020, for the purposes of the current review, the relevant period under review was 7 January 2012 to 31 October 2018.
The Tribunal then set out its consideration of the following factors:
(a)the first respondent’s income and financial resources;[22]
(b)the first respondent’s salary and employment benefits;[23]
(c)the first respondent’s rental property;[24] and
(d)other financial resources available to the first respondent.[25]
[22] Section 46(1)(a) Documents at pages 712 to 713, paragraphs [14] to [17].
[23] Section 46(1)(a) Documents at pages 713 to 714, paragraphs [18] to [24].
[24] Section 46(1)(a) Documents at page 714, paragraphs [25] to [26].
[25] Section 46(1)(a) Documents at pages 714 to 715, paragraphs [27] to [31].
The Tribunal then concluded at paragraphs [32] to [33]:
[32]There was no evidence that [the first respondent] had any significant assets that would render the assessment of child support as unjust or inequitable.
[33]The tribunal decided that there are no special circumstances in this case that make the administrative assessment unjust and inequitable due to the income or financial resources of [the first respondent].
The Tribunal went on to consider whether in the circumstances of the case, the administrative assessment was unjust or inequitable by reference to the special needs of the children at paragraph [34] and following of the decision record.
Relevantly, at paragraphs [36] and [37], the Tribunal set out the applicant’s evidence about the costs she had incurred in relation to medical and related expenses for each of the children. The Tribunal noted that the most significant costs related to stage one orthodontic expenses of $1,900, which the applicant incurred prior to 2012. The Tribunal noted that the applicant financed those costs through loans that were paid off over time, however, it further noted that ‘the financed costs incurred after 7 January 2012 are not medical costs incurred after 7 January 2012.’ The Tribunal went on to say that the additional medical costs were relatively minor when considered in the context of the child support paid over the relevant period.
At paragraph [40] of the decision record, the Tribunal concluded that there were ‘no special circumstances in this case that make the administrative assessment unjust and inequitable due to the special needs of the children.’
Consequently, the Tribunal affirmed the decision under review.
Current appeal to this court – LNG69/2020
An appeal from a decision of the Administrative Appeals Tribunal under section 44AAA of the AAT Act must be on a question of law.
The court may make such orders as it considers appropriate after hearing and determining this matter, including, without limitation, an order affirming or setting aside the Tribunal’s decision or an order remitting the case to be heard and decided again by the Tribunal in accordance with directions of the court.[26]
[26] Administrative Appeals Tribunal Act 1975 (Cth) s 44(5).
Relevantly, sections 44(7) to (10) of the AAT Act, which apply to these proceedings by virtue of section 44AAA(3)(a), provide that in certain circumstances, the court may make findings of fact provided that such findings of fact are not inconsistent with findings of fact made by the Tribunal (other than findings made by the Tribunal as a result of an error of law).
On 1 February 2021, orders were made permitting the applicant, among other things, to file an amended Notice of Appeal on or before 15 March 2021 seeking orders within the Court’s jurisdiction and pleading any questions of law (‘February 2021 orders’).
Order 6 of the February 2021 orders further provided:
For the appeal the following documents shall be relied upon:
a. The Notice Of Appeal (Child Support) or any amended Notice of Appeal (Child Support);
b. A copy of the decision of the Second Respondent;
c. The statement of reasons for that decision;
d. The relevant documents that were before the second respondent in relation to the proceedings to which the Notice of Appeal (child Support) relates and provided to the Court in accordance with s 46(1)(a) of the Administrative Appeals Tribunal Act 1975 (Section 46(1)(a) Documents”);
e. Any transcript of the AAT proceedings if filed pursuant to Order 4 above;
f. Any affidavit filed pursuant to Order 5 above;
g. Any such other document(s) for which leave of the court has been granted.
A Notation to the February 2021 orders relevantly provided:
The third respondent has indicated that it may seek summary dismissal of the matter if no amended Notice of Appeal (Child Support) is filed by the applicant or if not question of law is pleaded in any amended Notice of Appeal (Child Support).
Ultimately, the applicant filed an amended Notice of Appeal on 28 March 2021. By orders made on 3 May 2021, leave was granted for the applicant to file that Notice of Appeal out of time.
In the amended Notice of Appeal, the applicant seeks the following orders:
1.The decision of the second respondent (Tribunal) proceedings 2020/HC019187 (Decision) be set aside.
2.Special needs costs of the children be fully meet (sic) by the other aren’t.
3.Those costs dating back to 7 Jan 2012 to Dec 2019 be paid within 7 days of the date of the orders.
4.Financial resources of the other parent be attributed an extra $8000 per annum in relation to those fringe benefits that are absent from previous years child support assessments.
5.Those fringe benefits dating back to 7 Jan 2012 to Dec 2019 be attributed to the related years adjustable taxable income in arrears.
6.Those arrears be made by payment of a lump sum, payable within 7 days of orders being made directly to the applicant.
7.Financial resources of the other parent be attributed an extra $8000 per annum in relation to those fringe benefits that are absent for current and future years child support assessment.
8.Those fringe benefits dating back to Dec 2019 to current and future be attributed to the related years adjustable taxable income.
9.The Second Respondent pay costs to the Applicant for Transcript of hearing 9 July 2020, Judge Kerr, TAD 20 of 2020, Transcript of hearing 8 May 2019, Judge McGuire, LNC 18 of 208 and Transcript of Tribunal hearing, 10 Sep 2020.
The Notice of Appeal raises the following question of law:
1.Child Support (assessment) Act 1989
S3(1) The parents of a child have a primary duty to maintain the child.
2.S3(2)(b)(i) himself or herself.
3.Part6A 98C(3) Subsection 117(4) to (9) (inclusive) apply to the Registrar in the exercise of his or her power under this Division as if:
4.S117(4)(b) the proper needs of the child:
5.117(4)(e)(i) him or herself
6.S117(4)(g) any hardship that would be cause (i) and to (A) the child; or (b) the carer entitled to child support;
7.S117(7A)(b) disregard (ii) any entitlement of the child or the carer entitled to child support to an income tested pension, allowance or benefit;
8.ATO Fringe Benefits Tax Assessment Act s 7(1)(a)(i)(ii).
Moreover, the appeal raises the following 13 ‘grounds of appeal’:
1.ADJR Act s5(1)(f) that the decision involved an error of law, whether or not the error appears on the record of the decision.
The decision maker made an error when considering the evidence available in the cost of the children and the payees expenses, having regard to income tested pension, allowance or benefit of a payee parent of the child not being disregarded (s117(7A)(b)(ii)), and refused to take into account contradictory available evidence.
2.This case did not turn on issues of the other parents (the payer) capacity to meet those needs, but rather on the inappropriate weight to matters of the Applicant expenses and capacity to pay.
3.The Applicant further asserted that the tribunal failed to take into account that the children’s weekly expenses ($452) are already above the child support weekly amount ($300).
4.ADJR Act s5(1)(g) that the decision was induced or affected by fraud. The paying parent had deliberately lied or told half-truths in evidence and documents either before the child support registrar or before tribunal on the matters.
5.This case did not turn on issues of the document evidence of the paying parent’s higher salary than that reported in his income tax, but rather on the inappropriate weight to matter of the requirement that the tribunal not to investigate the paying parents’ employer.
6.ADJR Act s5(1)(j) that the decision was otherwise contrary to law.
The tribunal decision finding tax returns correct contrary to any decision to the findings of Judge Kerr. Morgan v Registrar [2010] SSATACSA 20 outlines these matters at 41. The Tribunal noted that Mr Morgan is able to obtain some extra benefit by being self-employed, such as personal use of phones, fuel etc. The Tribunal decided to attribute an extra $3,000 per annum in relation to these fringe benefits.
7.This case did not turn on issues of the document evidence that the payer ought have disposable income of about $23,629 per annum in play money.
8.Tribunal identified or given inappropriate weight to matters that ought not have affected her decision.
9.This case did not turn on issues of the document evidence that the payer did not pay for petrol.
10.This case did not turn on issues of the document evidence that the payer did not pay for Telephone.
11.The costs of maintaining the children are higher, because of the additional cost related to the special need and are above their normal needs, currently resting solely on the residential parent (mother) the decision maker did not turn to issue of the payer being exempt of financial responsibility.
12.The other parent (being the site Forman) receives personal residual financial benefit and has done so, for more than the past 7 years, that is not available to the average salary and wage earner.
13.This case did not turn on issues of the evidence, the working out of a parent’s adjusted taxable income is not given to the tax commissioner, that’s for the registrar, his deduction for his income year attributed to property losses have been exaggerated, there’s nothing as a matter of law that makes what he put in his return dipostive (sic) and incapable of being controverted.
On 5 April 2021, the applicant filed a written submission in LNG69/2020 in which she sets out the background to this matter from her perspective.
In her written submissions, the applicant is critical of the handling of this matter by the Child Support decision makers. She further asserts that the first respondent has not been open and transparent about his earnings, assets and financial resources.
The applicant reiterates that the medical and other costs she seeks are out of the ordinary.
The applicant also takes issue with the Tribunal’s 10 September 2020 decision. In particular, she states that there is an error in paragraph [36] where the decision record indicates that the orthodontic costs incurred prior to 2012 were paid off over two years at the rate of $66.22 per month. She states that this is incorrect and that this amount was $66.22 per fortnight plus a further $89.56 per month.[27]
[27] Applicant’s Outline of Submission filed on 5 April 2021 at paragraph [31].
The applicant also queries the statement at paragraph [38] of the Tribunal decision record where it is stated that the financed costs after 7 January 2012 are not medical costs on the basis that the invoices provided are from medical practitioners.
CONSIDERATION – LNG69/2020
It is submitted for the second respondent that even if one were to give the applicant’s Notice of Appeal a beneficial reading, it does not disclose any proper questions of law so as to engage the court’s jurisdiction.
The second respondent has posed the following questions of law which appear to arise from the Notice of Appeal, when one gives it a beneficial reading:
(a)Did the Tribunal misconstrue section 117(7A)(b)(ii) of the Assessment Act or fail to consider evidence? (Grounds 1 to 3)
(b)Was the Tribunal’s decision vitiated by fraud? (Grounds 4 and 5)
(c)Was it open to the Tribunal to consider the first respondent’s tax returns in the manner in which it did? (Grounds 6 to 10 and 12 to 13)
(d)Did the Tribunal misconstrue or misapply section 117(2)(b)(ia)? (Ground 11)
I agree that these questions are raised by the Applicant’s Notice of Appeal when the Notice of Appeal is given a beneficial reading. I will now address these questions in turn.
I also note that the applicant refers throughout her Notice of Appeal to the Administrative Decisions (Judicial Review) Act 1977 (Cth). As this appeal is brought under section 44AAA of the AAT Act, those references are not relevant.
Question of law 1 – Grounds 1 to 3
Section 117(7A)(b)(ii) of the Assessment Act relevantly provides that:
In having regard to the income, property and financial resources of a parent of the child, the court must:
…
(b) disregard:
…
(ii) any entitlement of the child or the carer entitled to child support to an income tested pension, allowance or benefit.
It is apparent from a fair reading of the Tribunal’s decision record that one of the key issues raised in the application was the assertion by the applicant that the first respondent had provided misleading information about his income and financial resources, including by overstating his expenses associated with his rental property and not disclosing the benefit he derived from personal use of his work phone and vehicle. Much of the Tribunal’s reasons at paragraphs [18] to [32] of the decision record go to that issue.
There is no basis on which to conclude that the Tribunal improperly considered the applicant’s entitlements to a pension, allowance or benefit contrary to the requirements of section 117(7A)(b)(ii) of the Assessment Act. The issue before the Tribunal was the first respondent’s income and financial resources, not that of the applicant.
By grounds 2 and 3, the applicant is seeking impermissible merits review in which she essentially takes issue with the Tribunal’s assessment of the evidence before it. The Tribunal properly, in my view, identified the issues before it as required by the Assessment Act at paragraph [12] and then proceeded to deal with those issues in turn. The findings made were reasonably open to the Tribunal on the basis of the material before it.
For each of these reasons, grounds 1 to 3 lack merit and are not made out.
Question of law 2 – Grounds 4 to 5
By grounds 4 and 5, the applicant alleges that the Tribunal’s decision is vitiated by fraud. It is trite to say that such a claim is a very serious one and one which the applicant is required to prove.[28]
[28] Maharjan v Minister for Immigration and Border Protection (2017) 258 FCR 1 at [102].
In this case, the applicant alleges that the first respondent has not fully disclosed his income or his financial resources. She has maintained these allegations throughout these proceedings and in previous proceedings, which have been referred to above. Indeed, she maintained those allegations in the hearing before the Tribunal, as evidenced in the transcript annexed to her affidavit of 29 March 2021.[29] Ultimately, the Tribunal did not accept those assertions.
[29] Applicant’s affidavit affirmed and filed on 29 March 2020 at Annexure 1.
The applicant has not, in her Notice of Appeal, particularised the alleged fraud nor has she led any evidence to support those assertions. In those circumstances, the applicant has not discharged the burden of proof in relation to this allegation and grounds 4 and 5 have therefore not been made out.
Question of law 3 – Grounds 6 to 10 and 12 to 13
These grounds essentially raise two issues:
(a)The first is a complaint by the applicant that the Tribunal failed to have regard to evidence before it about the financial benefits that the first respondent had available to him given the nature of his employment.
(b)The second aspect of these grounds, in particular grounds 6 and 13, is that the Tribunal incorrectly and impermissibly considered itself bound to accept the evidence contained in the applicant’s tax return as assessed by the Australian Tax Return, and did not properly consider the other evidence before it regarding the first respondent’s income and other benefits derived from his employment.
For the following reasons, these grounds are not made out.
As to the first issue raised by these grounds, it is clear from a fair reading of the Tribunal’s reasons that the Tribunal concluded that the benefits that the first respondent received in relation to his employment were accurately recorded on his tax return, or at the very least that there was no evidence to conclude otherwise. Moreover, to the extent that there were benefits which were received by the first respondent which were not included in his tax return, such as any minimal personal use of his work vehicle, these would not have impacted the amount of child support payable.[30]
[30] See, for example, Tribunal’s decision dated 10 September 2020 at paragraphs [21], [22] and [23].
Further, at paragraph [20], the Tribunal also considered the applicant’s claims about the first respondent’s capacity to hide aspects of his income. Relevantly, the Tribunal concluded that the first respondent worked for an arms’ length employer required by law to report on the first respondent’s earnings. After considering the applicant’s assertions in this regard, the Tribunal concluded that it was ‘satisfied that the amount of employment income reported by [the first respondent] in his tax reports is correct.’
This is not a case in which the Tribunal simply accepted the information in the first respondent’s tax returns as assessed by the Australian Tax Office (‘ATO’). It had regard to the totality of the evidence in reaching the conclusions it reached. Its findings in this regard were open to it on the evidence before it. Again, the applicant’s submissions in relation to these grounds are no more than a disagreement with the conclusions reached by the Tribunal and seeks impermissible merits review. There was an evident and intelligible justification for the conclusions reached by the Tribunal.
To the extent that the applicant refers to the comments made by Justice Kerr in the appeal lodged from the Tribunal’s decision of 6 April 2020, those comments must be viewed in context. The transcript of those proceedings is annexed to the applicant’s affidavit sworn on 27 April 2021. That appeal related to a decision by the Tribunal to dismiss the applicant’s application for review under section 42B of the AAT Act on the basis that it was frivolous or vexatious, has no reasonable prospect of success or is otherwise an abuse of process. The comments made by his Honour in the appeal from that decision must be viewed in that context.
In concluding that there was an error in dismissing the application without the benefit of argument, Justice Kerr cannot be taken to have pre-determined the outcome of a full hearing on the issue.
Question of law 4 – Ground 11
It is not clear what question of law is raised by this ground. To the extent that the applicant says that the Tribunal erred in concluding that the children’s medical costs were not so significant as to warrant a departure order, again, the applicant is effectively seeking merits review. That is not the role of this court on appeal.
A fair reading of the Tribunal decision makes it clear that the Tribunal was aware that in determining whether there were grounds for a departure order, one of the considerations was whether the administrative assessment would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent because the costs of maintaining the children were significantly affected by their special needs.[31]
[31] Tribunal’s decision dated 10 September 2020 at paragraph [34].
Having considered the evidence before it, the Tribunal concluded that the most significant cost was one which had been incurred outside of the seven year period under review. Having come to this view, the Tribunal then considered the other costs and concluded that having regard to the amount of additional costs incurred within the seven year period, these were not significant in the context of the overall costs of the children.[32]
[32] Tribunal’s decision dated 10 September 2020 at paragraphs [36] to [39].
This finding was open to the Tribunal on the basis of the evidence before it. Therefore, this ground does not disclose any error of law.
CONCLUSION – LNG69/2020
Having found that the Amended Notice of Appeal does not disclose any error of law, the applicant’s appeal in LNG69/2020 is dismissed with costs.
PROCEDURAL HISTORY – LNG82/2020
On 10 October 2019, the second respondent determined that from 1 November 2019, the first respondent’s adjusted taxable income of $88,285 would be used for the purposes of the administrative assessment of child support.[33] The applicant objected to that decision but was unsuccessful and the decision was affirmed on 16 December 2019.[34]
[33] Section 46(1)(a) Documents at page 20.
[34] Section 46(1)(a) Documents at page 38.
Decision of Tribunal on 6 April 2020
The applicant sought a review of the objection decision before the Tribunal on 20 January 2020. On 6 April 2020, the Tribunal dismissed the review application under section 42B(1) of the AAT Act. Section 42B of that Act provides a summary dismissal process in certain limited circumstances.[35]
[35] Section 46(1)(a) Documents at pages 313 to 314.
Application to Federal Court on 23 December 2020
On 23 December 2020, the applicant sought judicial review in the Federal Court of the Tribunal’s 6 April 2020 decision.[36] The applicant has annexed a copy of the transcript of proceedings before his Honour Justice Kerr as an annexure to her affidavit filed in LNG69/2020 on 27 April 2021.[37]
[36] Applicant’s Notice of Appeal filed on 23 December 2020.
[37] Applicant’s affidavit affirmed and filed on 27 April 2021 at Annexure 4.
On 12 August 2020, in response to an application for judicial review of the 6 April 2020 decision filed by the applicant, Kerr J quashed that decision by consent of the parties and remitted the matter to the Tribunal for further consideration according to law on the basis that the applicant had been denied procedural fairness.
Once remitted to the Tribunal, the applicant and first respondent attended a hearing on 14 October 2020 and both gave sworn evidence.
Decision of Tribunal on 13 November 2020
By its decision dated 13 November 2020, the Tribunal affirmed the decision under review.
The Tribunal’s decision record sets out the background to this matter at paragraphs [1] to [3], including the evidence to which the Tribunal had regard in making its decision.
At paragraphs [4] and [5] of the Tribunal’s decision record, the Tribunal sets out the relevant statutory provisions relevant to the meaning of the term ‘adjusted taxable income’ for the purposes of the Assessment Act. At paragraph [6], the Tribunal set out the basis on which it calculated the first respondent’s adjusted taxable income in accordance with those statutory provisions.
At paragraph [7], the Tribunal set out the submissions made by the applicant as to why the second respondent ought not to accept the adjusted taxable income so calculated. At paragraph [8], the decision record notes that the applicant was provided with additional time to make further written submissions. In that time, the first respondent also provided a copy of his 2018/2019 tax return which was also forwarded to the applicant. The Tribunal records that the applicant provided the Tribunal with a copy of a redacted transcript of the proceedings before Kerr J and argued that comments by Kerr J supported her submission.
At paragraphs [9] to [11], the Tribunal comments on the purpose and intent of the statutory scheme by which a person’s adjusted taxable income is calculated for the purposes of child support assessment and notes that it is not the role of the Child Support Registrar to investigate the accuracy of information provided by the first respondent’s employer to the ATO. Moreover, having calculated the first respondent’s adjusted taxable income in accordance with the statutory pathway, the Tribunal further noted that it could not be satisfied that there was any basis to set aside that decision.
At paragraph [12], the Tribunal concluded that the legislation has been correctly applied to determine the first respondent’s adjusted taxable income for the period from 1 November 2019 and therefore affirmed the objections officer’s decision.
Current appeal to this court – LNG82/2020
The applicant’s amended Notice of Appeal filed on 13 April 2020 in this court identifies the following questions of law:
Child Support (Assessment) Act 189
1.S3(1) The parents of a child have a primary duty to maintain the child.
S3(2)(b)(i) himself of herself
2.Part 6A 98C(3) Subsection 117(4) to (9) (inclusive) apply to the Registrar in the exercise of his or her power under this Division as if:
3.Part 7 Division 4,
S114 include ensuring: (a) that children have their proper needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of both of their parent; and (b) that parent share equitably in the support of their children.
4.S117 matters as to which court must be satisfied before making order (2)(c) unjust and inequitable
(ia) because of the income, property and financial resources of either parent;
5.S117(4)(b) the proper needs of the child: and
6.S117 (4)(e)(i) him or herself
7.S117(4)(g) any hardship that would be caused (i) to (A) the child; or (B) the carer entitled to support;
8.S117 (7A)(b) disregard (ii) any entitlement of the child or the carer entitled to child support as an income tested pension, allowance or benefit.
9.Departure Determinations in accordance with section 98S
10.ATO Fringe Benefits Tax Assessment Act s 7(1)(a)(i)(ii).
In addition, the applicant’s Amended Notice of Appeal filed on 13 April 2021 identifies the following grounds of appeal:
1.ADJR Act s5(1)(f) that the decision involved an error of law, whether or not the error appears on the record of the decision.
The decision maker made an error when the presentation of material was excluded as evidence available, and refused to take into account contradictory material evidence.
2.The AAT decision maker violated AAT obligation to provide a fair and just review process, going from making application, straight to hearing, with no regard to the ability to hold a conference or directional hearing to identify any further supporting material.
3.This case did not turn on issues of the applicant to dispute adjusted taxable income, but rather on the inappropriate weight to matters of the commissioner of taxation is binding and cannot be disputed.
4.This case did not turn on issues of the supporting material of payslips, but rather on the inappropriate weight to matters of the commissioner of taxation is binding and cannot be disputed.
5.This case did not turn on issues of the gathering and testing of evidence, but rather on the inappropriate weight to matters of the failure to exercise such powers.
6.The Applicant further asserted that the tribunal failed to take into account that the children’s weekly expenses ($452) are already above the child support weekly amount ($300).
7.ADJR Act s5(1)(g) that the decision was induced or affected by fraud. The paying parent had deliberately lied or told half-truths in evidence and documents either before the child support register (sic) or before tribunal on the matters.
8.This case did not turn on issues of the document evidence of the paying parent’s higher salary than that reported in his income tax, but rather on the inappropriate weight to matter of the requirement that of the tribunal enforce the commissioner of taxation is binding and cannot be disputed.
9.ADJR Act s5(1)(j) that the decision was otherwise contrary to law.
The tribunal decision finding tax returns correct contrary to any decision to the findings of Judge Kerr. Morgan v Registrar [2010] SSATACSA 20 outlines these matters at 41: The Tribunal noted that Mr Morgan is able to obtain some extra benefit by being self-employed, such as personal use of phones, fuel etc. The Tribunal decided to attribute an extra $3,000 per annum in relation to these fringe benefits.
10.The other parent (being the site Forman) receives personal residual financial benefit and has done so for more than the past 7 years, that is not available to the average salary and wage earner and has never been included in his income.
11.The working out of a parent’s adjusted taxable income is not given to the tax commissioner. That’s for the registrar, his deduction for his income year attributed to property losses have been exaggerated, there’s nothing as a matter of law that makes what he put in his return dispositive and incapable of being controverted.
The applicant did not file any written submissions in relation to this proceeding, but at the hearing before me indicated that she sought to rely upon the written submissions filed in LNG69/2020 in support of this appeal as well.
CONSIDERATION – LNG82/2020
As stated above, this appeal, like LNG69/2020, is brought under section 44AAA of the AAT Act. To succeed, the applicant must establish an error of law in the Tribunal’s decision.
The second respondent’s primary position is that the Amended Notice of Appeal does not raise any questions of law which engage the court’s jurisdiction.
However, under cover of this general objection, the second respondent goes on to submit that giving the applicant’s Notice of Appeal a beneficial reading, at its highest, it appears that the following questions of law may be said to arise:
(a)Did the Tribunal deny the applicant procedural fairness or otherwise fail to consider evidence? (Grounds 1 to 2)
(b)Did the Tribunal misconstrue or misapply provisions of the Assessment Act in determining the first respondent’s ATI? (Grounds 3 to 5, 8 to 9 and 11)
I agree that this is a fair summary of the potential questions of law raised in the applicant’s application on a beneficial reading. I will address each of these issues in turn.
Question of law 1 – Grounds 1 to 2
It appears that in these grounds, the applicant asserts that she was denied procedural fairness, that the Tribunal excluded available evidence and that the Tribunal failed to have regard to ‘contradictory’ evidence.
The applicant does not specify how she was denied procedural fairness other than to assert that the Tribunal went ‘straight to a hearing’ without conducting or considering conducting a conference or directions hearing to identify any further supporting material.
The Tribunal was under no obligation to conduct a conference. In circumstances where the applicant asserted that the Registrar’s assessment of the first respondent’s adjusted taxable income was incorrect, the onus was on her to lead evidence to support that submission. It was not for the Tribunal to identify any evidence that might support her claims.
In any event, the applicant was invited to, and participated in, a hearing on 14 October 2020 and was given an opportunity to, and indeed did, provide further submissions in writing to the Tribunal. In those circumstances, the applicant has not established that there was a denial of procedural fairness as alleged.[38]
[38] Applicant’s Notice of Appeal filed 23 December 2020, Annexure 01 at paragraphs [3] and [8].
Nor has the applicant established that the Tribunal excluded evidence or did not have regard to relevant evidence. The Tribunal’s decision record sets out the evidence led by each of the parties and the Tribunal’s consideration of that evidence.
As stated, the applicant provided the Tribunal with a transcript of the proceedings before his Honour Justice Kerr in the appeal from the Tribunal’s 6 April 2020 decision to dismiss the applicant’s review application. In its November 2020 decision, the Tribunal discussed that transcript and appropriately considered its relevance to the issues before it. As noted at paragraph [8], after discussing the difficulties arising from the fact that the applicant produced a heavily redacted version of the transcript and the difficulties arising from that, the Tribunal went on to say:
‘In any event, the Tribunal notes that the Court did not determine the issue but remitted the review application to the Tribunal to consider this application afresh.’
It is apparent from the applicant’s submissions that she understands the comments made by his Honour, Kerr J to be important in the determination of this matter. It is important, however, to understand that the issue before his Honour was whether the Tribunal’s decision to dismiss the applicant’s application at an early stage, without hearing evidence and full argument, was appropriate. His comments therefore must be viewed in that context.
The issue before this court is whether, having had the benefit of an opportunity to provide further evidence and submissions from the parties, and having considered the matters before it, the Tribunal has lawfully discharged its statutory task. It is clear from a fair reading of the Tribunal’s decision that it considered the applicant’s submissions and evidence, but ultimately was not satisfied that there was any proper basis on which to conclude that the first respondent’s adjusted taxable income had been incorrectly calculated.
As noted at paragraph [10] of its decision record, the Tribunal concluded that it could not be satisfied that there was any basis to set aside the decisions to set the first respondent’s adjusted taxable income at the stated level or to apply that figure to the child support assessment from 1 November 2019. The Tribunal’s reasons do not disclose any error of law. These grounds do little more than invite the court to undertake impermissible merits review.
Question of law 2 – Grounds 3 to 5, 8 to 9 and 11
The substance of these grounds is that the Tribunal felt that it was bound to use the figures in the first respondent’s tax returns for the purposes of calculating his adjusted taxable income to work out his child support obligations. At the heart of these grounds is an assertion that the Tribunal, improperly, failed to consider other income and benefits available to the first respondent.
The second respondent concedes that whilst sections 56 and 57 of the Assessment Act deems a parent’s taxable income to be the amount as assessed by the ATO, it is for the decision maker to determine other components of the parent’s adjusted taxable income.[39]
[39] Second respondent’s submissions filed on 26 April 2021 at paragraph [20].
However, as submitted by the second respondent, this statutory framework does not preclude the decision maker from having regard to the figures arrived at by the ATO or to give such weight as they consider appropriate to such figures.
In this case, the applicant made numerous assertions about the first respondent obtaining additional benefits from his workplace not disclosed in his tax returns, including for example, the financial benefit of having access to a work phone and a work car. The first respondent denied these claims and maintained that he had purchased his own car because the work vehicle was not available to him for personal use.
When the Tribunal’s reasons are read fairly and as a whole, it is clear that the Tribunal did not consider itself bound by the ATO’s figures for the purpose of calculating the first respondent’s adjusted taxable income.[40]
[40] Applicant’s Notice of Appeal filed 23 December 2020, Annexure 01 at paragraph [9].
I accept the submissions for the second respondent that a fair reading of the Tribunal’s reasons make it clear that the Tribunal understood its statutory task, engaged with the submissions and evidence made and led by the applicant and ultimately made findings which were open on the evidence before it.
Therefore, these grounds are not made out.
Remaining grounds
Grounds 6, 7 and 10 raise claims of a failure by the Tribunal to consider evidence and also make allegations of fraud.
These grounds are not made out. For the same reasons as discussed at paragraph [60] above in relation to LNG69/2020, an allegation of fraud is a serious one which must be proven. In this case, without proper particulars or any evidence of such fraud, this allegation has not been proven.
To the extent that the applicant claims that the Tribunal failed to have regard to evidence, again, this rises no higher than an attempt to have the court engage in impermissible merits review.
When fairly read, the Tribunal’s reasons show that it understood its statutory task, it had regard to the applicant’s submissions and material but ultimately was not satisfied, having regard to the totality of the evidence before it, that there was any basis to conclude that the decision made to set the first respondent’s adjusted taxable income at $88,285 and to apply that figure to his child support assessment from 1 November 2019 ought be set aside. That finding was open to the Tribunal on the material before it.
For each of these reasons, none of the grounds of review have been made out.
CONCLUSION – LNG82/2020
In those circumstances, the applicant having failed to identify any error of law in the Tribunal’s decision, the applicant’s appeal in LNG82/2020 is to be dismissed with costs.
I certify that the preceding one hundred and fourteen (114) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Associate:
Dated: 4 March 2022
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