Walter v Fisher

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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 2020
Judgment 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, 117
Cases 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 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

MS WALTER
Applicant
AND:

MR FISHER
First Respondent

CHILD 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

  1. Before the court are two appeals brought by the applicant under section 44AAA of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’).

  2. 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…

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Details
Case
[2022] FedCFamC2G 136
Decision Date

CaseChat Overview and Summary

In LNG69/2020 and LNG82/2020, Ms Walter appeals from decisions of the Social Services & Child Support Division of the Administrative Appeals Tribunal, which affirmed decisions of the Child Support Registrar in relation to child support assessments made for her two children. The central issue before the court was whether the Tribunal had erred in law in its assessment of the first respondent's income and financial resources in determining child support obligations. The applicant argued that the Tribunal had misconstrued certain sections of the Assessment Act and failed to properly consider evidence of the first respondent's income and financial resources. The court examined the relevant statutory provisions and the Tribunal's interpretation and application of these provisions. The court found that the Tribunal had correctly applied the law and made findings that were reasonably open to it based on the evidence presented. Consequently, the court dismissed both appeals and ordered that the applicant pay the second respondent's costs.

The court considered several questions of law raised in the appeal, including whether the Tribunal had misconstrued sections of the Assessment Act and whether the Tribunal's decision was vitiated by fraud. The court found that the Tribunal had correctly interpreted the relevant provisions and had not improperly considered the applicant's entitlements to a pension, allowance, or benefit. The court also concluded that the findings made by the Tribunal were reasonably open to it based on the material before it. The applicant's argument that the Tribunal had failed to consider the first respondent's tax returns was rejected, as the court found that the Tribunal had appropriately considered the evidence and made findings accordingly. The court held that the applicant had not established any jurisdictional error on the part of the Tribunal.

The court dismissed both appeals and ordered the applicant to pay the second respondent's costs in relation to both LNG69/2020 and LNG82/2020. The form of the order is subject to entry in the Court's records, and the Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors or to record a variation to the order. It is noted that publishing proceedings that identify persons, associated persons, or witnesses involved in family law proceedings is an offence under Section 121 of the Family Law Act 1975 (Cth), except in very limited circumstances.

Orders

Orders of the court

LNG 69 of 2020

LNG 82 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS WALTER

Applicant

AND:

MR FISHER

First Respondent

CHILD 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.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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.