FEDERAL COURT OF AUSTRALIA

P v Child Support Registrar [2014] FCAFC 98

THE COURT ORDERS THAT:

1.    P’s application to the Court to receive further evidence on the appeal be:

a.    refused as to the affidavit of P made on 20 March 2014;

b.    allowed as to the affidavit of P made on 31 March 2014.

2.    The appeal be dismissed.

3.    The parties file and serve submissions as to costs within 14 days.

4.    The appellant and the second respondent be referred to in these orders and reasons for judgment by the pseudonyms ‘P’ and ‘M’ respectively.

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

REASONS FOR JUDGMENT

1    This is an appeal from a judgment of a single judge of this Court given on 5 December 2013 (P v Child Support Registrar [2013] FCA 1312), dismissing an appeal on a question of law under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) from a decision of the Administrative Appeals Tribunal (“AAT”) given on 25 June 2013: Confidential and Child Support Registrar [2013] AATA 426 (“2013 AAT decision”). In the latter decision, the AAT affirmed a decision of the Social Security Appeals Tribunal (“SSAT”) to affirm in substance a decision by the Child Support Registrar (“Registrar”) that the appellant, P, has a “percentage of care” for his child, C, of 50% from 6 June 2011.

2    The determination of a parent’s “percentage of care” under the Child Support (Assessment) Act 1989 (Cth) (“the CSA Act”) may affect the amount of child support payable by a parent for a child under that Act.

3    P appeared unrepresented. His underlying contention is that his “percentage of care” for the relevant period substantially exceeds 50% when proper allowance is made for his payment of fees for C to reside as a boarder at St Joseph’s College Hunters Hill. As P said: “It is abhorrent to me that I have to pay child support when I’m already paying through the nose for a very good education and caring of my children”.

BACKGROUND FACTS

4    P and M are the parents of C, born in 1998. P and M also have other, younger children. At the beginning of 2011, C commenced as a weekly boarding student at St Joseph’s College.

5    Prior to 6 June 2011, P had been assessed by the Child Support Agency to have 86% care of C.

June 2011 parenting orders

6    On 6 June 2011, orders were made by consent in the (then) Federal Magistrates Court in relation to the parenting of C, A and B (“parenting orders”). The parenting orders provided, among other things:

a)    “That [P] and [M] have equal shared parental responsibility” for the three children including but not limited to:

i.    The school or schools that each child is to attend;

ii.    The religious instruction and upbringing of each child;

iii.    The medical treatment that each child is to receive;

iv.    The sporting and other activities that the children are to engage in that would occur when the children are to spend time with each of them (clause 2);

b)    “That the parent with whom the children are living with at that time is to be responsible for the day to day decisions concerning the care, welfare and development of the children” (clause 3);

c)    “That during school terms the children… live with [P] each alternate week from after school Monday until the commencement of school the following Monday, and that the children otherwise live with [M]…” (clause 4);

d)    “That during school holidays the children spend one half of each school holidays with each of their parents …” (clause 5);

e)    A notation that C was currently at boarding school (clause 7);

f)    “That [P] and or [P’s mother] will be solely responsible for the payment of all and any school fees and expenses at St Joseph’s College Hunters Hill and that any such payments will not be claimed by [P] as a non-agency child support payments [sic] (clause 13)”;

g)    That P and M would do all things necessary to transfer the control of the Australian Scholarship Group (ASG) Fund to P (clause 33); and

h)    That P “must not use the said ASG fund for any purpose other than the education expenses of the children to attend St Joseph’s College Hunter’s Hill or such other school as agreed in writing between [P] and [M] or their tertiary education expenses” (clause 34).

7    Despite the terms of clause 4 of the parenting orders, as noted in clause 7, C was a weekly boarder during the school term. The practical result was that, generally during the school term, C spent Monday to Friday nights inclusive at boarding school and Saturday and Sunday nights at the home of one of his parents.

August 2011 decision to change P’s percentage of care, internal review and SSAT review

8    On 12 August 2011, the Registrar made a decision changing P’s percentage of care to 50% from 6 June 2011 on the basis of the parenting orders made by the Federal Magistrates Court. P objected to that determination. The basis of the objection, according to the subsequent SSAT decision, was “that his care percentage for [C] should revert to the percentage applicable before June 2011 and that he is fully responsible for [C’s] care as he pays for all of [C’s] expenses relevant to his attendance at boarding school”.

9    On 21 October 2011, the objection was disallowed. P lodged an application for review of the objection officer’s decision with the SSAT. On 23 January 2012, the SSAT varied the decision so that P was assessed as having 50% of care for C from 29 July 2011. According to the SSAT decision:

a)    P said that he was wholly responsible for all school fees and associated costs.

b)    P’s stated belief was that the parenting orders “when read in their entirety, simply ratify the pre-existing care arrangements. That is, on the basis that [C] is fully supported by him throughout his 40 weeks of schooling, with the parents sharing equally in the remaining period of 12 weeks (school holidays), and further noting that [C] spends one or two nights additional per week in his parents’ shared care, his care percentage should certainly be much greater than 50%”.

c)    P estimated that [C] was in his care 82% of the time “but he would be happy to settle for 77%”.

2012 AAT review and first appeal to the Federal Court

10    On 28 June 2012, the AAT affirmed the SSAT’s determination as to P’s percentage of care but varied the decision so that the determination was to take effect from 6 June 2011: Re Father and Child Support Registrar [2012] AATA 396 (“2012 AAT decision”). P appealed to this Court from the first AAT decision and was successful: P v Child Support Registrar [2012] FCA 1398 (“the 2012 FCA decision”). Buchanan J held that the AAT failed to “observe the strictures in s 54A(3) of the Act” in finding that C’s care during the period of time that he was at boarding school was shared equally between the parents because s 54A(3) requires that, for the purposes of s 54A, a child cannot be in the care of more than one person at the same time. Buchanan J questioned, but did not decide, whether it was necessary to apply s 54A of the CSA Act to work out actual care in respect of the nights that C resided at St Joseph’s College. His Honour remitted the matter to the AAT to be further determined according to law.

11    Buchanan J further noted that:

a)    the evidence before the AAT was that the parenting orders had been complied with (at [5]; see also at [17]). This observation was directed to those orders which contemplated that C would be a weekly boarder during ordinary school terms, but that otherwise he would spend his time with one or other of his parents in a way which divided that time equally;

b)    “It was agreed that C was in the care of [P] or [M] on each of the 82 nights of the year that C spent with one or the other, and there is no basis to doubt or disturb that common position” (at [11]);

c)    “[P]’s position has been that he is entitled to be regarded as C’s carer during the whole of the period that C is at St Joseph’s College because [P], or someone on his behalf, meets the whole of the costs of those arrangements” ([12]. See also [21] and [31]);

d)    P accepted that each parent was entitled to be consulted if questions about the wellbeing of C arose during the period he spent at St Joseph’s College. P also confirmed that credit for the payments of the school fees, which were paid by him or on his behalf, was “the paramount issue at the heart of his case” (at [22]).

12    At [6], Buchanan J said:

There is nothing in the orders which allocates parental responsibility for C to one parent to the exclusion of the other while C is at St Joseph's College. To the contrary, the orders appear to contemplate that each parent will retain that degree of shared responsibility for C’s wellbeing which is consistent with the fact that he resides at St Joseph’s College on Monday to Friday nights inclusive during school terms. It does not appear to me that payment of the school fees as such alters that position.

13    At [21], Buchanan J set out the following extract from written submissions made by P:

[P] is providing the substantial financial support and has the financial burden for [C] for 283 days of the year. Outside of the boarding school, educational provision and support and the sporting and extra-curricular activities it is agreed that [P] and [M] have shared care – however, this is only for 164 days of the year, for which [P] has half the care.

14    His Honour concluded (at [30] and [35]):

As it appears to me, in the circumstances of the present case, that provision [being s 54A of the CSA Act] requires that either specific periods (or the whole period) at St Joseph's College be attributed to one parent or the other as carer or to neither of them as actual carers for those nights…

I do not think that this matter can be resolved until a judgment is made by a fact finder/decision-maker about whether there should be an attempt to make a specific assignment to a particular parent in relation to the period at St Joseph’s College. I do not believe that the position is conclusive in favour of one side of that argument or the other. Further assessment of the issue will be a matter for the AAT.

2013 AAT review

15    On 25 June 2013, the 2013 AAT decision was made. In that decision, a differently constituted AAT again affirmed the SSAT’s determination as to P’s percentage of care but varied the decision to alter the effective date to 6 June 2011. In doing so, the AAT noted at [26] that “payment of the costs of meeting the needs of a child is a factor that should be considered in assessing the extent to which a parent provides care”. The AAT rejected P’s submission that payment of the school fees was a determinative factor in the assessment of percentage of care in this case.

STATUTORY AND ADMINISTRATIVE FRAMEWORK

16    Section 3(1) of the CSA Act states that the parents of a child have the primary duty to maintain the child.

17    Section 4(1) of the CSA Act provides that the Act’s principal object is to ensure that children receive a proper level of financial support from their parents. By s 4(2), particular objects of the Act include ensuring that:

a)    the level of financial support to be provided by parents for their children is determined according to their capacity to provide financial support and, in particular, that parents with a like capacity to provide financial support for their children should provide like amounts of financial support; and

b)    the level of financial support to be provided by parents for their children should be determined in accordance with the costs of the children; and

c)    persons who provide ongoing daily care for children should be able to have the level of financial support to be provided for the children readily determined without the need to resort to court proceedings.

18    An application for administrative assessment of child support may be made to the Registrar under Part 4 of the CSA Act. Such an assessment is made in accordance with a statutory formula, unless the Registrar determines, or a court orders, that the provisions relating to administrative assessment of child support may be departed from. Part 5 of the CSA Act includes formulas used for assessing the annual rate of child support payable by a parent for a child “for a day in a child support period”. Section 35A of the CSA Act provides a simplified outline of Part 5 which states relevantly:

•         The Costs of the Children Table published by the Secretary each year (based on the table in Schedule 1 to this Act) sets out the costs to parents of raising children in various age ranges.

•         Those costs are to be met by both parents (by paying child support or by caring for their children) according to each parent’s capacity to meet the costs.

•      To determine each parent’s capacity to meet those costs, the parents are assessed in respect of the costs of the child.

•         Generally, both parents’ income is taken into account in determining each parent’s capacity to meet the costs of their children.

19    One of the integers in the formulas is each parent’s “percentage of care” for the child for the day: see relevantly ss 35 and 36 CSA Act. By way of illustrating the potential significance of the “percentage of care” determination, s 40C of the CSA Act provides that the annual rate of child support payable by a parent for a child for a day in a child support period is nil if:

(a)    the parent's annual rate of child support for the child is worked out under section 35 or 37 (income of both parents, no non-parent carer); and

(b)    the parent's percentage of care determined for the purposes of the administrative assessment of child support for the child is more than 65%.

20    Division 4 of Part 5 of the CSA Act is entitled “Percentage of care”.

21    Section 50 of the CSA Act is in the following terms:

Determination of percentage of care—responsible person has had etc. a pattern of care for a child

(1)    This section applies if:

(a)    either of the following applies:

(i)    an application is made under section 25 or 25A for a parent to be assessed in respect of the costs of the child;

(ii)    a parent is taken under section 73A to have had a relevant dependent child from a day specified in that section;

and the Registrar is satisfied that a responsible person for the child has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances; or

(b)    the Registrar:

(i)    revokes, under Subdivision C of this Division, a determination of a responsible person's percentage of a care for a child that was made under section 49 or this section; and

(ii)    is satisfied that the responsible person has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances.

(2)    The Registrar must determine the responsible person's percentage of care for the child during the care period.

(3)     The percentage determined under subsection (2) must be a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person has had, or is likely to have, during the care period.

(4)    Subsection (3) does not apply if section 51 or 52 applies in relation to the responsible person.

22    Section 54A of the CSA Act provides:

Working out actual care, and extent of care, of a child

(1)     The actual care of a child that a person has had, or is likely to have, during a care period may be worked out based on the number of nights that the Registrar is satisfied that the child was, or is likely to be, in the care of the person during the care period.

(2)     The extent of care of a child that a person should have had, or is to have, under a care arrangement during a care period may be worked out based on the number of nights that the child should have been, or is to be, in the care of the person during the care period under the care arrangement.

(3)    For the purposes of this section, a child cannot be in the care of more than one person at the same time.

(4)    This section does not limit section 50, 51, 52 or 54.

23    Section 54B provides:

Days to which the percentage of care applies if sections 51 and 52 did not apply in relation to a responsible person

(1)    If:

(a)    a determination of a responsible person's percentage of care for a child is made under section 49 or 50; and

(b)    sections 51 and 52 did not apply in relation to the responsible person;

the percentage of care applies to each day in a child support period on and from the application day unless a revocation of the determination under Subdivision C of this Division takes effect.

(2)     The application day is:

(a)     if subparagraph 49(1)(a)(i) or 50(1)(a)(i) applies in relation to the determination—the day on which the application referred to in that subparagraph is made; or

(b)     if subparagraph 49(1)(a)(ii) or 50(1)(a)(ii) applies in relation to the determination—the day referred to in that subparagraph; or

(c)    if paragraph 49(1)(b) or 50(1)(b) applies in relation to the determination:

(i)    in a case where the revocation of the determination referred to in subparagraph 49(1)(b)(i) or 50(1)(b)(i) takes effect at the beginning of the day referred to in paragraph 54G(2)(a)--that day; or

(ii)    otherwise—the day that begins immediately after the revocation of the determination referred to in that subparagraph takes effect.

24    Section 54E of the CSA Act provides:

In making a determination under this Subdivision, the Registrar must have regard to any guidelines in force under subsection 35N(1) of the Family Assistance Act [A New Tax System (Family Assistance) (Administration) Act 1999].

25    At the relevant time, the Child Support Agency published an online “law and policy guide” to the child support assessment scheme (“CSA guidelines”). The CSA guidelines are not guidelines to which s 35N(1) applies.

26    The CSA guidelines provided relevantly:

Determining whether care exists

An object of the Assessment Act is “that persons who provide ongoing daily care for children should be able to have the level of financial support to be provided for the children readily determined without the need to resort to court proceedings” (section 4 (2)(c)). The Act does not define the term "ongoing daily care," however CSA will take into account a number of factors in determining whether a person cares for a child.

In most cases, it will be relatively clear whether and to what extent a person is caring for a child. However, where there is doubt, CSA will consider whichever of the following are relevant to the particular case.

•    To what extent does the person have control of the child, including having overall responsibility for the child and making:

o    major decisions relating to who the child spends time with and the child's health, education, discipline, recreational and/or social activities; and

o    arrangements for others to meet the needs of the child.

•    To what extent does the person meet the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extra curricular activities?

•    To what extent does the person pay for the costs of meeting the needs of the child?

•    To what extent does the person otherwise provide financial support for the child?

•    To what extent does the child provide for his or her own needs or have those needs met from another source?

•    To what extent is the child financially independent or financially supported from another source?

…

Percentage of care

The percentage of care is the mechanism in the child support assessment formula [sic] takes into account the amount of time a parent or non-parent carer is responsible for providing care for the child.

A parent or non-parent carer's percentage of care for a day in a child support period is the percentage of care that the person is likely to have of the child during the care period.

Care will generally be worked out based on the number of nights that the child is likely to be in the care of the person during the care period (section 48(2) of the unamended Act, section 54A of the amended Act).

Prior to 1 July 2010, parents and non-parent carers could also agree to a percentage of care to be used in the assessment, if they agreed that the number of nights did not

appropriately represent their care.

From 1 July 2010, CSA can base the care determination on hours of care over the care period if a determination based on nights would be inappropriate.

Example

One parent may provide care every night while the other parent provides care from 8am to 6pm every weekday.

Where parents are separated but are living in the same house, CSA will determine each parent's percentage of care based upon the care that is actually occurring for the child.

If CSA is not able to determine a care percentage based upon the actual care, CSA will generally accept that the parents share the care of their children equally. In this case, CSA will determine that each parent has a care percentage of 50%. This care percentage will remain in place until either parent is able to demonstrate that the actual care of the child is something other than equally shared.

Additionally, in limited circumstances, a person may have care of a child who is not living with them for a period of time.

Example

A person can provide care for a child who is at boarding school, in hospital or in separate accommodation. A person who simply supervises the child (for example, a baby sitter, a child minder such as a grandparent, a schoolteacher) does not provide care.

Consideration is given to who has responsibility for making arrangements for, and decisions about, the child's welfare, as well as who is meeting the child's costs, rather than just the accommodation arrangements themselves. CSA will give weight to statements from both parents and any non-parent carers.

A parent or non-parent carer's percentage of care for a child will be used to determine the parent's or non-parent carer's cost percentage for the child. The percentage of care will be rounded to a whole percentage (section 48(3) of the unamended Act, section 54D of the amended Act). See Chapter 2.4.5 for more information on these percentages in the child support formula.

Care other than in nights

From 1 July 2010, CSA can base the care percentage determination on hours of care over the care period if a determination based on nights would be inappropriate. A decision as to whether nights are an appropriate basis for a care percentage determination will depend on the particular circumstances of the case.

Generally, the number of nights a person cares for a child will be the best measure of their percentage of care. However, this will not always be the case. Although a determination based on the hours of care that a person provides might result in a different percentage of care to a determination based on the nights of care, this would not necessarily mean that the nights of care are not the best measure of care that the person provides.

If a person has some overnight care and a small amount of additional “daytime” care that is not associated with an overnight stay, this will also not necessarily mean a calculation based on nights is inappropriate.

Example

M and F have two children, A and B, who live mainly with M. F has care of the children every second Friday and Saturday night and some school holidays. F also picks the children up from school on Wednesdays, takes them to soccer and has dinner with them, before dropping them back to M’s house for the night. As the daytime care F provides each Wednesday does not significantly affect the care arrangements, it is appropriate to base the percentage of care on the nights of care that each parent has of the children.

A person’s percentage of care will only be based on hours if CSA is satisfied that in the circumstances of the case, the calculation based on hours provides a better measure of care than nights. CSA will take into account the information from each parent and/or non-parent carer about the care they provide and why they think nights or hours is the better measure of care…

ISSUES RAISED ON APPEAL

27    It is important to emphasise at the outset that the appeal, being instituted under s 44(1) of the AAT Act, is confined to a “question of law”. This does not, of course, mean that the reach of s 44 is limited to questions of law divorced from the need to look at facts: Collins v Administrative Appeals Tribunal (2007) 163 FCR 35 at 49 [55] Allsop J (with whose reasons Lindgren and Emmett JJ agreed). However, the question or questions of law which found the Court’s authority to review an administrative decision under s 44 of the AAT Act should be properly and precisely framed in the notice of appeal in line with the requirements of r 33.12(2)(b) of the Federal Court Rules 2011 (Cth) (“FCA Rules”): Comcare v Etheridge (2006) 149 FCR 522 (Etheridge) at 527 [14] (Branson J); Collins at 49 [55]. So understood, s 44(1) can be seen to respect the proper boundaries of judicial review, being concerned with the legality of administrative decision-making, as opposed to a review of the merits of such decisions.

28    Thus while, as Mansfield J said in Kowalski v Chief Executive Officer of Medicare Australia (2010) 185 FCR 42 at 51 [38], some allowance may be given to an unrepresented litigant, this cannot detract from the fact that the jurisdiction of the Court to entertain an appeal under s 44 of the AAT Act is engaged only where a question of law is raised for determination.

29    By amended notice of appeal dated 31 March 2014, P posed the following four questions as his grounds of appeal:

1.    Has [the primary judge] erred in determining whether the percentage of care determined by the Registrar under s 50, is it not mandatory for the Registrar to consider s 54A and s 54B of the [CSA Act]?

2.    Has [the primary judge] erred by finding there was evidence or material before [the AAT] capable of supporting, or were there logical grounds capable of supporting, the following findings of fact made by [the AAT]:

a)    [P] did not pay for the costs of [C's] boarding at St Joseph's College;

b)    the [parenting orders] were being complied with;

c)    no loan agreement was in place between the [P] and [P’s] mother;

d)    P and M were on an equal footing in respect of C's care whilst he was at boarding school?

3.    Has [the primary judge] erred by finding [the AAT] did not exceed its powers and thus commit a jurisdictional error by consciously departing from that [sic] Child Support Agency policies as they relate to:

a)    Care other than in nights;

b)    Where parents are separated and living in the same house.

4.    Has [the primary judge] erred by finding that [the AAT] did not fail to afford procedural fairness to [P] by:

a)    Refusing or failing to explain the undocumented approach that would be used to determine the percentage of care;

b)    Preventing the cross examination of [M] in relation to her evidence of non-compliance with [the parenting orders]?

30    A matter of potential importance in resolving this appeal concerns the form of the amended notice of appeal filed on 30 July 2013 by which P identified the issues he sought to raise before the primary judge. At [9] of his reasons, the primary judge noted that this amended notice of appeal specified ten questions of law and 15 grounds of appeal said to relate to the questions of law. The primary judge considered (at [52]) the amended notice of appeal to be manifestly deficient and defective when measured against the principles set out in r 33.12(2) of the FCA Rules and the cases about formulating questions of law. At [54], the primary judge identified eight questions of law which he discerned from P’s amended notice of appeal.

31    During the hearing before this Court, P contended that the primary judge had not correctly identified all of the questions of law which P had sought to raise. We address this issue in dealing with P’s fourth ground of appeal.

P’s APPLICATION TO ADDUCE FURTHER EVIDENCE ON APPEAL

32    Section 27 of the Federal Court of Australia Act 1977 (Cth) allows the Court to receive further evidence on appeal. Rule 33.29 of the FCA Rules provides relevantly that an application for the Court to receive further evidence on appeal must be accompanied by an affidavit stating matters including the grounds of appeal to which the application relates and why the evidence was not adduced in the court appealed from.

33    P filed two affidavits annexing material on which he sought to rely in the appeal.

34    P’s first affidavit, sworn on 20 March 2014, annexes:

a)    An affidavit of Samer Husseini affirmed 21 January 2014; and

b)    An affidavit of P’s mother affirmed 22 January 2014.

35    This evidence is directed to whether there was a loan arrangement between P and his mother in connection with the payment by P’s mother of C’s school fees.

36    P’s second affidavit, made on 31 March 2014, annexes P’s outline of submissions provided to the primary judge. It was filed with the amended notice of appeal which P was granted leave to file. The Registrar did not oppose P’s reliance on the second affidavit.

37    As to P’s first affidavit, the evidence that P seeks to adduce is relevant to a question of fact, namely the existence of the loan arrangement between P and his mother. The only issue in this appeal to which this evidence could conceivably relate is the second ground of appeal. That ground of appeal concerns whether there was evidence before the AAT to support its finding that there was no loan arrangement. The existence of other evidence of the loan arrangement is not relevant to the narrow question whether there was evidence before the AAT to support its finding. Accordingly, we will not receive P’s first affidavit as further evidence on the appeal.         

38    In the absence of any opposition from the Registrar, and having regard to ground 4 of P’s amended notice of appeal, we will receive P’s second affidavit as further evidence on the appeal.

CONSIDERATION

First ground of appeal: misconstruction of CSA Act

39    The primary judge addressed this issue at [55] to [71] of his reasons. As recorded by the primary judge, P’s submission was that, to work out ‘actual care’ for the purposes of the comparison mandated by s 50(3) of the CSA Act, it is mandatory to work out actual care in the way stipulated in s 54A. The primary judge rejected this submission, referring to the following matters:

a)    The use of the word “may” in s 54A(1) and s 54A(2) indicates that those provisions apply as a matter of discretion, having regard to s 33(2A) of the Acts Interpretation Act 1901 (Cth) and the ordinary rule of construction in relation to the word “may” when appearing in statutes.

b)    The absence of any textual indication to displace the prima facie meaning of “may” as permissive, and not mandatory.

c)    Section 54A(4) of the CSA Act provides that “This section does not limit section 50, 51, 52 or 54”. A requirement to apply s 54A when working out “actual care” for the purposes of s 50(3) could perhaps be considered a limitation.

d)    Extrinsic material tends to confirm the ordinary meaning of “may” in s 54A of the CSA Act. The primary judge referred to the following passage from the Explanatory Memorandum to the Child Support and Family Assistance Legislation Amendment (Budget and Other Measures) Bill 2010 (Cth):

New section 54A provides guidance for the Registrar in working out the actual care and extent of care that a person has of a child. New subsection 54A(1) provides that actual care may be worked out based on the number of nights that the child is likely to be in the care of the person during the care period. New subsection 54A(2) provides that the extent of care under a care arrangement may be worked out based on the number of nights that the child is to be in the care of the person during the care period under the care arrangement. Both of these requirements are for guidance and new subsection 54A(4) provides that they do not limit the application of new sections 50, 51, 52 and 54. New subsection 54A(3) provides that a child cannot be in the care of more than one person at the same time. Therefore, if the number of nights in care does not appropriately reflect the actual care or extent of care the person has, then the Registrar may use a different method to determine the percentage of care. An example of where nights in care may be shown not to be appropriate would be where a child does not stay overnight with a parent because the parent works night shifts but the parent does provide significant periods of daytime care.

e)    His Honour observed (at [62]) that the Explanatory Memorandum makes it “fairly clear” that it is open to the Registrar to employ a methodology other than the one set out in s 54A if the s 54A method is not appropriate.

40    In his written submissions to this Court, P made the following contentions:

a)    The primary judge’s interpretation contradicted the judgment of Buchanan J in the 2012 FCA decision. P referred to Buchanan J’s statement concerning s 54A(3) at [30] of his judgment, namely:

As it appears to me, in the circumstances of the present case, that provision requires that either specified periods (or the whole period) at St Joseph’s College be attributed to one parent or the other as carer or to neither of them as actual carers for those nights;

b)    The primary judge’s interpretation implies that only a percentage of care determination based on nights would enliven s 54A but his interpretation of “may” contradicts that assertion;

c)    The Explanatory Memorandum highlights the need for a mechanism based on a period of time. In particular, by referring to s 54A(4) before s 54A(3), “the author(s) have ensured that a single person is credited with the care of the child at any one time”;

d)    The importance of a time based calculation becomes self-evident upon reading s 54B which requires the percentage to be applied to each day of a child support period;

e)    The CSA guidelines support the use of a unit of time;

f)    The use of the word “may” in ss 54A(1) and (2) cannot reasonably suggest that the whole of s 54A becomes irrelevant if the “actual care” is not calculated based on nights; and

g)    A conclusion that P and M are given equal credit for the period that C spends at St Joseph’s is inconsistent with the finding that each parent retained parental rights and privileges in relation to C’s wellbeing during the whole time that C is at St Joseph’s.

41    In oral submissions, P’s argument was that it is necessary to have regard to s 54A(3) in determining actual care, rather than the whole of s 54A. That is, P was not disputing the primary judge’s conclusion that the Registrar is not required to apply the “number of nights” methodology in s 54A to determine actual care.

42    We agree with the primary judge’s interpretation of s 54A of the CSA Act for the reasons he has given.

43    An obvious difficulty with P’s argument is that s 54A(3) is prefaced by the words “[f]or the purposes of this section”. In our opinion, those words make it very clear that s 54A(3) does not apply except in the context of an application of s 54A(1) or s 54A(2).

44    Further, Buchanan J’s judgment in the 2012 FCA decision does not support P’s argument. At [35], in concluding that the matter should be remitted to the AAT for a factual finding about percentage of care of C, his Honour noted that a judgment would need to be made “about whether there should be an attempt to make a specific assignment to a particular parent in relation to the period at St Joseph’s College” (emphasis added). His Honour did not say anything to suggest that any determination of percentage of care would necessarily have regard to the principle in s 54A(3) that a child cannot be in the care of more than one person at the same time.

45    Nor, contrary to P’s submissions, does the Explanatory Memorandum support his construction. The Explanatory Memorandum simply explains that a determination of percentage of care based on nights spent with a parent may be inappropriate. It does not imply that there is any principle underlying the determination of actual care that a child cannot be in the care of more than one person at the same time. We cannot read any such principle into the reference in the Explanatory Memorandum to s 54A(4) before s 54A(3) and it is the Act which must ultimately be construed in any event, and not the Explanatory Memorandum.

46    An integer of P’s argument was that the legislative scheme requires that the percentage of care be determined by reference to a time-based calculation. This requirement was said to support the mandatory application of s 54A(3) in all determinations of percentage of care.

47    We do not accept that the Registrar’s determination in s 50(2) must necessarily involve a time based calculation. In particular, we do not accept that s 54B requires a time based calculation. Section 54B simply sets out the mechanism by which the legislation applies the percentage of care in order to produce an assessment of the child support obligation. Section 54B could just as easily apply if, for example, the percentage of care was determined by reference to events, such as the number of meals provided by a parent to a child. Of course, the percentage must satisfy s 50(3). In that regard, we note that the words “actual care” are not defined. In a particular case, the actual care of a child may involve particularly demanding aspects. In such a case, it may be appropriate to take into account particular activities in making a determination about actual care. In our view, the Registrar is not constrained from doing so, provided that the Registrar is not applying s 54A.

48    P submitted that the CSA guidelines supported his construction. He noted that, under the heading “Care other than nights”, the only alternative to a determination under s 54A(1) or (2) was a determination based on hours of care. In particular the guidelines state:

A person’s percentage of care will only be based on hours if CSA is satisfied that in the circumstances of the case, the calculation based on hours provides a better measure of care than nights.

49    The primary judge was correct to say that the CSA guidelines are not a permissible aid to the construction of the CSA Act. Guidelines may be issued by the Executive to govern the application of a broad discretion, such as the discretion in s 50. However, any such guidelines must be consistent with the general purposes and requirements of the relevant legislation and cannot be expressed to fetter the exercise of the relevant discretion: Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 at 206. To the extent that the CSA guidelines tend to suggest that the Registrar’s determination in s 50(2) must necessarily be determined by reference to a time based calculation, in our view, the CSA guidelines impermissibly restrict the Registrar in making that determination.

50    For these reasons, the first ground of appeal fails.

Second ground of appeal: no evidence

51    In addressing the second ground of appeal, it is important to emphasise that P’s right of appeal to this Court from the AAT is confined by s 44(1) of the AAT Act, to an appeal on a question of law, as we have earlier explained: see [27-28] above.

52    In Rawson Finances Pty Ltd v Commissioner of Taxation (2013) 296 ALR 307 at 334-335, Jagot J explained the range of questions of law arising from factual findings as follows:

[83]     Whether a fact is supported by any evidence is a question of law; so too is the question as to what amounts to material that could support a factual finding… The latter is a question of law because, before a fact may be found, “there is the preliminary question whether the evidence reasonably admits of different conclusions”… As the reasons in [Commissioner of Taxation (Cth) v] Broken Hill [South Ltd (1941) 65 CLR 150] at 155, 157 and 160 disclose if there is some evidence which reasonably admits of different conclusions as to the existence of a fact or not, the finding of that fact or the failure to find that fact does not involve a question of law. Hence, it is only whether the evidence could have supported the factual finding which constitutes a question of law. By contrast, the question whether evidence should or should not have led to a finding of fact is not a question of law. In the present context “evidence”, a term used in civil litigation, means the whole of the material before the Tribunal.

[84]     The distinction between evidence or material which could support a factual finding and evidence or material which should or should not have supported such a finding is fundamental to the exercise of jurisdiction which is limited to questions of law. When courts refer to there being “no probative” evidence to support a finding or a finding not being “reasonably open” or “open” on the evidence … or it being necessary that a finding be based on “some probative material or logical grounds” and that a finding not be “completely arbitrary” … the courts are not inviting consideration of whether a finding should or should not have been made. They are considering the anterior question whether the evidence reasonably admitted the making of the finding; that is, whether the evidence could support the finding. Hence, if there is no probative evidence of a fact and no logical grounds to support the fact, the finding of that fact will involve error of law. But where there is some probative evidence of a fact and some logical ground to support the fact, the finding of that fact will not involve error of law. The formula “some probative material or logical grounds” does not convert questions of fact into questions of law.

53    Her Honour continued to explain the requirement for logical grounds at 335-336:

[85]     …[T]he discussion in Tisdall v Webber (2011) 193 FCR 260; [2011] FCAFC 76 (Tisdall) is instructive. As Buchanan J noted at [125], citing Minister for Immigration and Multicultural Affairs v Al-Miahi (2001) 65 ALD 141; [2001] FCA 744 at [34] there is a difference between a finding not reasonably open on the evidence and a finding reached on other than logical grounds. The former involves a finding not supported by some evidence and is always an error of law; the latter involves mere faulty reasoning and is not generally characterised as an error of law. Buchanan J then observed at [126] that “[i]n a case of suggested illogicality, or of faulty inferential reasoning, the decisive test is not whether there was an error in logic or reasoning but whether there was no foundation for the conclusion reached”, citing Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 (SZMDS) at [130], [131] and [135], in particular, the statement of Crennan and Bell JJ at [131] that:

[131] ...the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

[86]     This is no more than recognition of the fundamental principle concerning the limits of judicial review described by Menzies J in Parramatta City Council v Pestell (1972) 128 CLR 305 at 323; [1972-73] ALR 811 at 822-3 that:

There is, however, a world of difference between justifiable opinion and sound opinion. The former is one open to a reasonable man; the latter is one that is not merely defensible – it is right.

54    These principles are well established. The primary judge correctly identified the relevant principles at [73] of his reasons.

Findings that P did not pay for the costs of C's boarding at St Joseph's College and that there was no loan agreement between P and P’s mother

55    The primary judge addressed the AAT’s findings that P did not pay for the costs of C's boarding at St Joseph's College and that there was no loan agreement between P and P’s mother at [81] to [83] of his reasons. He identified the following bases for the findings:

a)    P did not have the financial capacity to pay the fees;

b)    The fees were in fact paid by P’s mother;

c)    The arrangements between P and P’s mother in relation to the payments by P’s mother could not, on the evidence, properly be considered as a loan; and

d)    Even if the payments by P’s mother were loans to P, this did not amount to P paying the fees.

56    In his written submissions, P raised the following matters:

a)    The primary judge was wrong to find (at [32] of his reasons) that documentary evidence “clearly indicated that [P’s mother] had paid fees and other expenses to St Joseph’s College by cash, cheque or credit card” on a number of occasions;

b)    The documentary evidence “clearly indicated” that P had paid school fees;

c)    The AAT was incorrect to assert that P had no funds to pay C’s school fees and expenses at St Joseph’s College;

d)    The AAT did not establish that the basic elements required for a loan agreement or an arrangement or understanding were not present. A fair reading of the evidence demonstrated the existence of such an agreement;

e)    Although P’s mother had referred to her payment of school fees as an “investment”, that evidence needed to be read in context and was consistent with the existence of a loan agreement; and

f)    The primary judge’s reasoning was inadequate on this point.

57    In oral argument, P raised several factual matters. He referred to evidence of a cash payment by him to St Joseph’s of $12,225.00 on 22 July 2011.

58    He referred to evidence that he, rather than his mother, is contractually responsible to St Joseph’s for payment of C’s school fees. P also referred to a loan from a friend, Mr Hussein, that he said he had used to repay the loan from his mother.

59    P noted that the AAT had found that P was not solely responsible for the payment of the fees but shared the responsibility with his mother. He emphasised the importance of context in making findings of fact. Ultimately, he submitted that his mother was “confused” when she gave the evidence which supported the AAT’s findings and that, read in context, that evidence did not support those findings. He submitted that the AAT had engaged in “cherry picking” in selecting the evidence on which it relied for its factual findings.

60    P also contended that he had in fact paid the school fees from monies held by him in a fund called the Australian Scholarship Fund. He said that the evidence in support of this contention was paragraphs 33 and 34 of the parenting orders which, P emphasised, the primary judge had found were being complied with.

61    As to the complaint about [32] of his Honour’s reasons, the primary judge was correct to say that there was documentary evidence indicating payment by P’s mother of fees and expenses to St Joseph’s. That evidence was a letter from St Joseph’s College dated 23 March 2012 which referred to payments made by P’s mother by cash, cheque and credit card. There was also oral evidence, set out by the primary judge at [32], to support the finding that P did not pay for the costs of C's boarding at St Joseph's College. This complaint has no merit.

62    At paragraph [34] of the primary judge’s reasons, his Honour set out the evidence given by P’s mother which supported the finding that there was no loan arrangement. It is true that P’s mother’s evidence contained contradictions. However, there was evidence that supported the conclusion that there was no loan arrangement between P and his mother and the AAT was entitled to reach the conclusion that it did on the contradictory evidence.

63    P’s oral submissions made it plain that his underlying complaint did not involve a question of law. He was unable to make good the proposition that there was no evidence to support the AAT’s findings. Rather, P’s complaint was that the AAT had made errors of fact. As the passage from Rawson Finances above explains, this Court cannot deal with factual disputes on an appeal under s 44 of the AAT Act except where there is said to be no evidence that could support a factual finding. P has not identified any appellable error in the primary judge’s reasons on this point.

64    We will deal with the possible significance of P’s contractual responsibility to St Joseph’s College in addressing P’s argument that he was denied procedural fairness (ground 4 of the appeal).

Parenting orders were being complied with

65    The primary judge dealt with this finding at [75] to [77] of his reasons. His Honour noted:

a)    There was no issue about compliance with the parenting orders at the first AAT hearing or before Buchanan J;

b)    In P’s Statement of Facts, Issues and Contentions (“SFIC”) provided to the AAT, he did not contend that the parenting orders were not being complied with by himself or M, although P pointed out a “technical dichotomy” between orders 4 and 7 concerning where C would reside;

c)    The dichotomy was irrelevant given P’s concession that, outside boarding school, C’s time was spent equally between his parents;

d)    P’s SFIC referred to applications filed by P and M in the (then) Federal Magistrates Court alleging contraventions of the parenting orders. However, these applications had been withdrawn;

e)    P himself did not give evidence that M was not complying with the parenting orders, nor that he was not complying with the orders;

f)    The only evidence of non-compliance was M’s evidence during cross-examination that P was not complying with the orders in some unspecified way; and

g)    The matter was not addressed in submissions, which was not surprising because P’s case before the AAT rested “almost entirely” on the proposition that, because he had paid the boarding school fees, he cared for C during the periods that C was at boarding school. Any non-compliance by P with the parenting orders did not bear on that issue.

66    P made the following written submissions on the appeal:

a)    Contrary to his Honour’s finding, P had indeed submitted that the parenting orders were not being complied with in his SFIC in the AAT proceedings;

b)    M gave evidence that she did not believe that P was complying with the parenting orders; and

c)    Where both P and M agreed that the parenting orders were not being complied with, it was not open to the AAT to find to the contrary.

67    Orally, P amplified the first of these propositions, saying that he did everything in his power to suggest to the primary judge that the parenting orders were not being complied with “and in my submissions to the tribunal I actually said the dichotomy of order 4 versus order 7 means that the orders cannot be complied with”.

68    Both the AAT and the primary judge were well aware that C spent Monday to Friday nights at St Joseph’s College during the school term. Irrespective of whether that meant that the parenting orders were not being complied with, it was a fact that was clearly taken into account by the AAT.

69    Otherwise, there was a clear evidentiary basis for the conclusion that the parenting orders were relevantly complied with, namely, P’s concession that, outside boarding school, C’s time was spent equally between his parents. Accordingly, this ground of appeal must fail.

70    As to P’s submissions summarised at [66(a)] and [67] above, the primary judge addressed the “dichotomy” between orders 4 and 7 of the parenting orders and concluded that it was irrelevant because the facts as to C’s movements during the school term were not in issue. We agree.

71    The second proposition (summarised at [66(b)] above) appears at [76] of the primary judge’s reasons. It is not contentious.

72    As to the third proposition summarised at [66(c)] above, a decision-maker is not bound to make factual findings in accordance with an agreement between the parties.

73    P’s underlying complaint concerning this finding was that he “would not have conceded to the equal shared time outside of school if I had any inclination that that would be used as the determining factor for the whole care period”. We deal with this complaint in addressing ground 4 of the appeal.

P and M were on an equal footing in respect of C's care whilst he was at boarding school

74    The relevant findings of the AAT were identified by the primary judge at [43] of his reasons. The AAT found that the effect of the parenting orders was to place P and M on an equal footing:

a)    with respect to responsibility for C’s wellbeing while at boarding school ([43]); and

b)    in most of the respects set out in the CSA guidelines and in the decision of a Federal Magistrate in Polec v Staker (2011) 253 FLR 339 (“Polec”).    

75    The primary judge referred to evidence before the AAT about C’s care during non-boarding school periods and noted that P’s case before the AAT “rested primarily, if not entirely on his contention that he was responsible for paying, and that he did pay, the boarding school fee. Because he paid the fees, it followed that the care provided by the school should be attributed or allocated to him”. There was no contention that the non-financial parental responsibilities between P and M differed in any relevant respect during school terms.

76    Accordingly, the primary judge concluded (at [81]) that the sole issue was whether it was open to find that the situation of equal non-financial parental responsibilities during school terms was altered by the payment of the school fees. He found that, as it was open to the AAT to conclude that the payments by P’s mother could not properly be characterised as payments by P, it was open to make the findings set out at [74] above.

77    P’s written submissions noted that the findings were “solely based on a finding that [P] had not been paying the school fees of St Joseph’s College.” The submissions then said: “Once a consistent standard is placed upon all of the evidence before [the primary judge] it is irrational and illogical to make such a finding making the entire decision unsafe”.

78    In oral argument, P referred to the evidence that he paid school fees of $12,225 in July 2011 and to his contractual responsibility for payment of the school fees. In essence, his submission was that these matters made it impossible to reach a conclusion that there was equality in respect of C’s care while he was at boarding school. We do not accept this argument. It was a matter for the AAT how it took into account P’s contractual responsibility. There was no statutory requirement that it be given any particular weight, or any weight at all. It was not illogical or irrational to fail to give this matter any weight, although another decision maker may well have done so. The same applies to the July 2011 school fees, particularly in the light of the evidence that the payment was made from funds obtained by P from his mother.

79    Accordingly, the primary judge was correct to find that there was no error on a question of law in connection with these findings.

Third ground of appeal: jurisdictional error

80    P’s third ground of appeal is expressed to be premised upon the contention that the AAT “consciously” departed from the CSA guidelines concerning “care other than in nights” and incorrectly reasoned from the case of parents who are separated and living in the same house. P argues that the primary judge should have found that the AAT’s departure from the guidelines involved the AAT exceeding its powers and thus committing a jurisdictional error.

81     The primary judge’s reasons do not address explicitly an argument that the AAT exceeded its powers by departing from the CSA guidelines. However, we accept that P attempted to raise an argument to this effect before the primary judge. P’s amended notice of appeal before the primary judge included complaints that the AAT:

a)    Failed to construe properly the stated policies of the CSA;

b)    Repeatedly misquoted the CSA guidelines to support its reasoning to avoid making a determination in the percentage of care attributable to either P or M.

82    At [66] of his Honour’s reasons, the primary judge observed that some of the content of the CSA guidelines was unhelpful. He referred to the following sentence in the guidelines:

If CSA is not able to determine a care percentage based upon the actual care, CSA will generally accept that the parents share the care of their children equally.

83    We will refer to this sentence as the “equal care principle”.

84    The equal care principle was quoted by the AAT at [16] and [43] of its decision. The primary judge said:

[66]    …it is difficult to see how [this sentence] comfortably sits with s 50(3) of the Act. Section 50(3) requires the Registrar to attempt to work out “actual care” in every case so as to ensure that the percentage of care corresponds with actual care. It would not appear to permit the Registrar, in difficult cases, to avoid determining actual care and instead simply accept that care is shared equally.

[67]     Nevertheless, no question of law or error of law is revealed by the AAT’s use of the CSA guidelines to assist in the construction of ss 50 and 54 of the CSA Act.

85    P’s written submissions to this Court were:

a)    Ordinarily, administrative decision makers should apply policies set out in administrative guides.

b)    The primary judge did not address the AAT’s failure to explain why it had departed from the CSA guidelines, particularly by not applying the approach set out in the guidelines under the heading “Care other than nights”. That approach involved a determination based on hours of care.

c)    Before the AAT, the Registrar sought to depart from the CSA guidelines. In particular, the Registrar’s SFIC said “No particular approach is mandated by either [Buchanan J’s] judgment or The Guide.”

d)    The AAT is entitled to depart from published policy when a compelling reason justifies the departure. No compelling reason was given by either the AAT or the primary judge.

e)    The primary judge did not address P’s complaint that the AAT applied the CSA guidelines relating to parents who were separated and living in the same house, while failing to apply the guidelines relating to children at boarding school.

f)    A departure from published policy without a compelling reason involves an error of law.

g)    Before the primary judge, the Registrar conceded that the version of the CSA guidelines before the AAT was liable to be misinterpreted “by the pagination of the printed version in evidence”.

86    Orally, P did not explicitly argue that the AAT decision was affected by jurisdictional error. P put his argument in the following way:

…that because the Child Support Agency has relied on an example where parents are cohabiting, instead of the example where [C] is at boarding school, they have deviated from the policy document.

87    The departure from the CSA guidelines was said to involve both a failure to apply the relevant part of the guidelines and the application of an irrelevant part of the guidelines.

88    We accept propositions (a), (c) and (g) set out in paragraph 85 above. We also accept that the primary judge did not address explicitly the matters set out in propositions (b) and (e). That leaves propositions (d) and (f), which are essential elements of P’s argument.

89    Propositions (d) and (f) are incorrect insofar as they contend that, in the absence of any statutory provision to the contrary, a decision maker is required as a matter of law to comply with published policy unless he or she has a compelling reason to depart from it. In this respect, we note that there was no suggestion that s 54E of the CSA Act applied to the CSA guidelines. Thus, in Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 590-591, Bowen CJ and Deane J said:

It is not desirable to attempt to frame any general statement of the precise part which government policy should ordinarily play in the determinations of the Tribunal. That is a matter for the Tribunal itself to determine in the context of the particular case and in the light of the need for compromise, in the interests of good government, between, on the one hand, the desirability of consistency in the treatment of citizens under the law and, on the other hand, the ideal of justice in the individual case.

90    This passage makes it clear that consistency is desirable, but that inconsistency will not necessarily be indicative of legal error.

91    Since there was no legal requirement in this case that the AAT comply with the CSA guidelines (or depart from the guidelines only in the case of a stated compelling reason), there was no error of law as a result of any departure from or misapplication of the guidelines. The legal issue is whether the AAT determined percentages of care which corresponded with the actual care of the child that the AAT was satisfied that P and M had or were likely to have during the care period. Subject to questions of procedural fairness, addressed below, any departure from or misapplication of the CSA guidelines does not of itself demonstrate jurisdictional error or excess of power.

92    Accordingly, the third ground of appeal fails.

Fourth ground of appeal: denial of procedural fairness

93    P made several complaints about procedural fairness, relating to two discrete issues namely:

a)    the process by which the AAT arrived at its determination of P’s percentage of care; and

b)    the AAT’s refusal to permit P to continue cross-examination of M concerning compliance with the parenting orders.

94    The primary judge’s reasons are at [113] to [142] of his judgment. P did not contend that the primary judge made any error in identifying the legal principles to be applied.

No explanation of approach to be used to determine the percentage of care

95    The primary judge rejected P’s complaint that he had been denied procedural fairness, by reference to the following matters:

a)    In his reasons for allowing the appeal from the 2012 AAT review, Buchanan J said (at [11]):

To this point, the parties have argued their respective cases on the basis that decisions should be made as to who had the care of C on the nights he spent at St Joseph’s College. It was agreed that C was in the care of the applicant or the second respondent on each of the 82 nights of the year that C spent with one or the other, and there is no basis to doubt or disturb that common position. It appears to have been assumed that it is also either necessary or appropriate for the 201 nights that C spends at St Joseph’s College to be attributed somehow to, or between, the applicant and/or the second respondent. That assumption, in my respectful view, is much less sound.

b)    Following remittal of the matter to the AAT, P wrote to the AAT requesting information about the “key issue” so as to address his “lack of understanding of how the matter would progress”. At a subsequent directions hearing, the Registrar was directed to file his SFIC before P was required to file his SFIC;

c)    The Registrar’s SFIC set out possible approaches to the determination of the percentage of care. The Registrar contended that the preferable course, referred to as Option C, was to determine actual care other than by reference to the number of nights C was in the care of each parent. At [126], the primary judge set out the Registrar’s contention if this approach was adopted, namely:

If Option C is adopted by the AAT then, in the present case, where it is no longer in dispute that actual care is divided equally between the applicant and second respondent outside of boarding school periods, and that each parent retains “equal shared parental responsibility” for [C], including during periods at which he is at boarding school, the preferable decision is that each parent’s percentage of care for [C] should be set at 50%.

d)    The Registrar’s SFIC was not accepted by P as a sufficient explanation of how the percentage of care might be determined. However, in his SFIC, P submitted that the Registrar’s preferred approach would be contrary to law and contrary to the policy set out in the CSA guidelines.

e)    A fair reading of P’s SFIC revealed that P clearly understood the critical issues for determination by the AAT.

f)    The Registrar’s SFIC clearly identified the key issues.

g)    The AAT was not obliged to expose its mental processes or provisional views to comment by P before making its decision but, in any event, the AAT did expose its thinking in a way that enabled P to respond accordingly.

P’s complaint that he did not understand the AAT’s decision-making process

96    P contended, both in writing and orally, that he did not understand how the AAT had arrived at a percentage of care determination of 50%. He argued that the decisions of the primary judge and the AAT did not adequately disclose the AAT’s reasons and that this lack of reasoning was because “the determination of percentage of care for Master C is based on a still as yet undocumented process”. In support of his contention, P referred to the decisions in Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465 and Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-592.

97    We do not accept that this complaint is valid. There is no legal requirement to give more than adequate reasons. In any event, the AAT’s reasons disclose that the percentage of care was determined on a pellucid basis that:

a)    P and M cared for C equally outside of school terms ([44] of the AAT reasons);

b)    P and M had shared parental responsibility for C during school terms ([22], [25], [26] of the AAT reasons);

c)    P and M were on an equal footing in most of the respects set out in the CSA guidelines and in Polec ([25] of the AAT reasons);

d)    The only apparent and potentially significant departure from that position is the payment of school fees ([25] of the AAT reasons);

e)    P did not pay the school fees ([40] and [41] of the AAT reasons); and

f)    It would be nonsensical to assess percentage care by reference to nights ([42] of the AAT reasons).

98    Since the AAT’s reasons were clear, the complaint that the primary judge failed to explain them has no foundation. Further, it was open to the primary judge to conclude that this complaint was disingenuous for the reasons that he gave.

P’s complaint concerning the significance of his concession as to care outside of school terms

99    P’s written submissions reveal that he believes the “determining factor” in the AAT’s decision to have been his concession of equal care outside of school terms. P repeated this complaint during his oral submissions, saying that he “would not have conceded to the equal shared time outside of school if I had any inclination that that would be used as the determining factor for the whole care period”.

100    These submissions reveal a misunderstanding of the AAT decision. As appears from [97] above, P’s concession as to his level of care for C outside of school terms was only one of the considerations that led the AAT to his determination of the percentage of care.

P’s complaint about the application of the equal care principle

101    In oral argument, P complained that he was denied the opportunity to submit to the AAT that it should not apply the equal care principle. P said that this principle only applied to a case of separated but cohabiting parents. Accordingly, the equal care principle did not apply to his case. P also submitted “I had no expectation that someone would come up with an example based on the fact that we were cohabiting”.

102    A review of the materials shows that this complaint has no foundation. The equal care principle was explicitly relied upon by the Registrar in its SFIC and in oral submissions to the AAT. P was given an opportunity to respond to the Registrar’s SFIC, which he did by submitting his own 58 page SFIC. P was also given an opportunity to respond to the Registrar’s oral submissions at the hearing conducted by the AAT.

P’s complaint that the primary judge did not address his complaint concerning the equal care principle

103    P also complained orally that, in re-wording the issues posed by him for decision by the primary judge, the primary judge omitted to address this issue. He said that he was thereby denied procedural fairness. Any such denial of procedural fairness is cured by this Court’s consideration of the issue.

P’s complaint about the non-application of CSA guidelines concerning boarding school

104    P complained that he was denied the opportunity of pointing out to the AAT that the CSA guidelines dealt explicitly with the case of a child at boarding school. In such a case, the guidelines stated “Consideration is given to who has responsibility for making arrangements for, and decisions about, the child's welfare, as well as who is meeting the child's costs, rather than just the accommodation arrangements themselves.” P contended that, if the AAT had had regard to this statement, it would have reached a different outcome.

105    It is clear from the AAT’s decision that the AAT explicitly took into account the matters raised by the CSA guidelines concerning children at boarding school including:

a)    who had responsibility for making arrangements for, and decisions about, the child's welfare. In particular, the AAT referred to the contractual relationship between P and the school ([30] of the AAT reasons); and

b)    who was meeting C’s costs.

P’s complaint about the non-application of the CSA guidelines concerning “care other than in nights”

106    P complained that he was denied the opportunity to point out to the AAT that the CSA guidelines dealt with the case of “care other than in nights” by applying an hours based determination. The gist of the complaint was that P had not had an opportunity to make submissions as to the possible departure by the AAT from the CSA guidelines.

107    P put his submissions about the CSA guidelines dealing with “care other than nights” in his SFIC. There is no reason to believe that the AAT did not consider those submissions. Further, in his SFIC, P also submitted that the Registrar had not presented a good reason to depart from the guidelines. In oral submissions, M’s counsel submitted that it was not necessary to apply the guidelines and P then clearly argued that the guidelines should not be departed from.

108    Accordingly, there is no substance to any of P’s complaints that he was denied procedural fairness.

Prevention of cross examination about non-compliance with the parenting orders

109    On this question, the primary judge said:

a)    P had not contended in his SFIC that the parenting orders were not being complied with, let alone that he was not complying with them;

b)    P’s case before the AAT focussed on C’s time at boarding school and P’s contention that he paid the school fees;

c)    P’s attempt to continue cross-examination on this topic occurred in the context of trivial matters. The primary judge referred to questions about whether M had inappropriately held onto C’s clothes and Federal Magistrates Court proceedings alleging non-compliance with the parenting orders, which were withdrawn;

d)    Since P said that he agreed with M’s evidence, it was difficult to see what relevant questions could have been asked had cross-examination on the topic continued;

e)    P made no submissions on the topic of non-compliance with the parenting orders; and

f)    While it might have been prudent for the AAT member to ask why P wanted to pursue his line of cross-examination, in the circumstances, this was not a material defect in the conduct of the hearing.

110    P’s argument was as follows:

a)    Contrary to [77] of the primary judge’s reasons, P had submitted to the AAT that the consent orders were not being complied with.

b)    At the AAT hearing, M gave evidence that she was complying with the parenting orders and that she did not believe that P was complying with the parenting orders.

c)    P was prevented from asking M further questions concerning non-compliance with the parenting orders at the AAT hearing.

d)    The primary judge’s reasons at [137] referred to an argument that any additional evidence P may have been able to adduce would probably have been irrelevant. This was supposition on the part of the primary judge.

e)    P did not appreciate that he should deal with the issue of non-compliance in his submissions and the AAT should have explained its ruling that “All I can do is leave that to your submissions. It’s there, all right?”.

f)    In oral argument, P said that he was prevented from asking questions about occasions during school holidays when C was not in M’s care. The transcript of the AAT hearing is inconsistent with this contention: the point that P was pursuing was that he was not complying with the parenting orders. P did not identify to this Court any relevant evidence that he would have been able to adduce to support his case before the AAT, as he had articulated that case.

g)    In his SFIC, P submitted that “the determination of the person or persons actually funding [C’s] attendance at St Joseph’s as a weekly boarder is fundamental”. The SFIC does not contain any contention that he was not complying with the consent orders, nor that there were occasions during school holidays when C was not in M’s care. Further, in his oral submissions P did not contend either that he was not complying with the parenting orders or that there were occasions during school holidays when C was not in M’s care. To the contrary, P explicitly said:

It has been agreed that while [C] is not attending boarding school – so school holidays – that 50/50 care is the easiest answer to work through. However, factually actual care it doesn’t happen that way. And you have evidence and it’s been agreed, [M] has conceded that this is happening. [C] spends time doing other activities where he is not involved with either parent. To make your task easier, Senior Member, I will concede 50/50.

It is not actually happening, but I will concede that for simplicity. Otherwise we will have to go through day by day to determine what is happening.

111    The primary judge did not err in concluding that there was no denial of procedural fairness arising out of the AAT’s decision to prevent further cross-examination about compliance with the parenting orders. P had not contended in his SFIC that the parenting orders were not being complied with in a way that affected the percentage of care, let alone that he was not complying with them. P made no submissions that non-compliance with the parenting orders ought to affect the percentage of care. P was given an ample opportunity to put his case to the AAT and there is no basis for a conclusion that this case required him to be permitted to cross-examine M further on the question of compliance with the court orders.

112    The arguments that P was denied procedural fairness fail.

OTHER MATTERS

113    P relied on Polec as authority for the proposition that the overriding factual consideration is who is financially responsible for the care of the child. Polec is not authority for such a proposition. The case concerned a child who relocated from his mother’s home to another town to commence an apprenticeship, where he lived with his grandmother or family friends. The issue was whether the child’s care arrangements had changed as a result of him leaving his mother’s home. The Federal Magistrate found that, in the circumstances of that case, the most obvious matter to be considered was who was meeting the child’s costs. In particular, it was necessary to give consideration to the fact that the child was employed on a full-time basis as an apprentice, whereas his mother had previously provided for 100% of his care needs. The proceedings were remitted to the SSAT to enable it to analyse the evidence relevant to the child’s care.

114    P also referred to an AAT decision which he contended “clearly states that you cannot be given care of a child if you’re not providing financial – if you’re not paying for the child’s costs at a boarding school”. This appears to be a reference to Confidential v Social Security Appeals Tribunal (2010) 118 ALD 620. On the evidence, the father was the main carer for the relevant period because the child lived with him when not at boarding school, he had main responsibility for her whereabouts and he made greater financial contributions during the school year. There is nothing in the AAT decision to support P’s interpretation of the decision.

115    On the subject of consistency, P observed that a recent AAT decision concerning his second child, A, had resulted in a different percentage of care determination on relevantly identical facts. P asked the Court to note that he has sought review of this decision. While we acknowledge again the desirability of consistency in administrative decision-making, the AAT’s decision cannot affect this appeal and P does not suggest that it should have any effect on the appeal.

116    At the conclusion of the hearing, the solicitor for the Registrar sought leave to file an affidavit addressing P’s contention that he was using monies from the ASG fund to pay C’s school fees. P consented to the grant of leave. Accordingly, leave was granted. The Court also asked the Registrar to annex evidence of the current child support liability to the affidavit. The Registrar filed an affidavit of Nick Gouliaditis affirmed on 4 June 2014. We have considered that affidavit and have concluded that it does not assist in the disposition of the appeal.

CONCLUSION

117    The appeal must be dismissed. The parties will be directed to lodge written submissions on costs.

Associate:

Dated:    11 August 2014