FEDERAL COURT OF AUSTRALIA

BVG17 v BVH17 [2019] FCAFC 17

ORDERS

THE COURT ORDERS THAT:

1.    An extension of time for leave to appeal be granted.

2.    Leave to appeal be granted.

3.    The appeal be dismissed.

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

REASONS FOR JUDGMENT

COLLIER AND RANGIAH JJ:

1    These proceedings arise from a dispute between the applicant and the first respondent in relation to the assessment of child support under the Child Support (Assessment) Act 1989 (Cth) (CSA Act). The applicant seeks an extension of time to appeal and leave to appeal from a decision of the Federal Circuit Court to summarily dismiss a Notice of Appeal (Child Support) under r 13.10 of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules). Before the primary Judge the applicant sought judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal had affirmed a decision of an objections officer (Objections Officer) of the Child Support Agency of the Department of Human Services (Department), which in turn had affirmed the decision of a Change of Assessment Decision Maker (Decision Maker). In summary, the Department, and the Tribunal, disallowed an objection by the applicant in relation to the assessment of child support.

2    The applications for extension of time and leave to appeal were listed for hearing together with the appeal in this proceeding. The applicant’s proposed grounds of appeal are set out in the amended draft notice of appeal dated 6 December 2017. Notwithstanding the listing of the appeal, it is useful to continue to refer to the moving party as “the applicant”.

3    The Court has jurisdiction to hear the appeal from the Federal Circuit Court in these circumstances pursuant to s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) (FCA Act), as the Federal Circuit Court was exercising original jurisdiction to s 44AAA of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). Section 44AAA(1) confers jurisdiction on the Federal Circuit Court to hear appeals from the Tribunal, limited to a question of law, where the decision of the Tribunal was in relation to a “child support first review”. “Child support first review” is defined in s 3 of the AAT Act as a proceeding that is or would be a proceeding in the Social Services and Child Support Division of the AAT first review within the meaning of the Child Support (Registration and Collection) Act 1988 (Cth) (CSRC Act). In turn, the meaning of “AAT first review” is dealt with in s 89 of the Registration Act. Relevantly, item 2 of s 89 provides the following:

4    In the present case, there was a decision under s 87(1) of the CSRC Act on an objection to a decision of the Registrar. As explained by the parties at the additional oral hearing on 10 December 2018, s 87(1)(a)(ii), as opposed to s 87(1)(a)(i), was applicable, such that the Registrar was required to consider the objection and the notice lodged under s 86 of the CSRC Act.

5    Further, with respect to the question of who may apply for review under s 89, item 15 of s 80 provides that an objection may be made pursuant to that section where the original decision was under Pt 6A of the CSA Act, in which s 98B is located, such that the applicant fulfils the requirement of s 89(b) that he is the person set out in item 2.

6    It follows that, by virtue of ss 80, 87 and 89 of the CSRC Act, the matter before the Tribunal was a “child support first review” such that the Federal Circuit Court exercised jurisdiction under s 44AAA of the AAT Act. An appeal lies therefore lies to this Court in accordance with s 24(1)(d) of the FCA Act.

Background

7    The applicant and the first respondent were previously married and are parents of two minor children. For the purposes of assessment of child-care, the children were recorded as being in the primary care of the first respondent. For the period 8 April 2016 to 4 June 2017 the applicant was assessed to pay an annual rate of child support of $30,940.

8    On 1 May 2016, the applicant applied to the Child Support Registrar for a change of assessment of the annual rate of child support payable by the applicant, ultimately referable to “Reasons 1, 8A and 8B”. These “Reasons” referred to listed reasons set out in Ch 2.6 of the Guides to Social Policy Law: Child Support Guide published by the Department of Human Services (at the relevant time), and related to established grounds for making a departure order in the special circumstances of the case identified in ss 98C and 117(2) of the CSA.

Decisions of the child support registrar

9    On 17 May 2016 the Decision Maker found that Reason 8A had been established, and that the first respondent’s adjusted taxable income should be revised upward from $30,940 per annum to $89,000 per annum. The Decision Maker rejected the applicant’s case referable to Reasons 1 (the costs of maintaining a child are significantly affected by high costs of enabling a parent to spend time with, or communicate with, the child) and 8B (the child support assessment is unfair because of the income, earning capacity, property or financial resources of one or both parents).

10    Ultimately, the result of this decision was that the rate of child support assessed as payable by the applicant remained the same, and his objection to the assessment was disallowed.

11    On 27 May 2016 the applicant applied again to the Child Support Registrar, objecting to the decision of the Decision Maker and seeking review on the following grounds:

He objects to his child support assessment based on the $60,000 he has incurred for legal costs, mediation and psychiatric assessments over the last year.

The Department has rejected legal costs as a valid consideration in their decision on the basis of a 2005 court decision, the details of which were not provided to him.

He seeks a Ministerial review in concert with the Attorney General.

[BVH17] owes him $6050.

He is now heavily in debt and unable to afford the unjust child support payments.

12    The Objections Officer found that the applicant had valid grounds to object, and was entitled to a full merits review of the decision. In particular, although the applicant had not indicated under which Reason the applicant had applied for the matter to be considered, in addition to Reasons 1 and 8B the Objections Officer found that the applicant’s objection was most properly considered under Reason 5 (namely the child support assessment was unfair because the payer has paid or transferred money, goods or property to the child, the payee, or a third party for the benefit of the child).

13    The Objections Officer found in summary:

    In order to establish Reason 1, the applicant must show that the costs incurred to spend time with, or communicate with, the children were at least 5% of his adjusted taxable income, and that these costs significantly affected the costs of maintaining the children. Although the applicant submitted that over the previous 18 months he had incurred legal fees totalling $60,000 in order to resolve parenting matters including care arrangements, the first respondent stated that she too had incurred legal costs. However, legal costs incurred by either parent to establish, modify or enforce arrangements cannot appropriately be included as a cost of enabling a parent to spend time with, or communicate with, the child, for the purposes of departing from an assessment of child support for a child. An application of the type before the Objections Officer was, in effect, a de facto application for a costs order. The Department was not in a position to decide whether legal costs incurred by a parent were due to the particular actions of one parent, nor was the Department able to determine the reasonableness of the level of costs incurred. It followed that the applicant’s objection referable to Reason 1 was not substantiated.

    To establish Reason 5 the applicant must show that the assessment was not fair because the first respondent received or would receive money, goods or property from the applicant for the benefit of the children. The applicant claimed that because the first respondent did not provide full disclosure of her financial position, he was required to pay an amount of $12,000 up-front for psychiatric assessment for the parental court proceedings. The revision of the first respondent’s financial position meant that she owed him $6,050 in respect of that assessment, and the applicant claimed that this sum should be set off against his outstanding child support liability. The first respondent submitted however that consent orders had been made in the Federal Circuit Court to the effect that the applicant would be reimbursed for the costs of the assessment from the property settlement, and the property settlement had not been finalised. In light of the determination by the Federal Circuit Court, the Department did not have the jurisdiction to make an alternative determination.

    To establish Reason 8A and Reason 8B the applicant must show that the relevant assessment was not fair because of the first respondent’s income, property, financial resources and earning capacity. The first respondent was assessed on a 2014-2015 adjusted taxable income of $35,756 when available information confirmed that she had commenced working full time with an annual salary of $90,646. Her adjusted taxable income after allowance for deductions was $90,231. The disparity in the income of the first respondent being used in the assessment and the actual income created a special circumstance which made the current assessment unfair. Reason 8A was established.

14    While the Objections Officer considered that an adjusted taxable income of $90,231 was more reflective of the circumstances of the first respondent, the applicant’s gross income was approximately $161,000. The adjusted taxable income of the first respondent would result only in a reduction of the annual rate of child support by a further $152. This was not so significant as to make the assessment of the Decision Maker unfair. The decision resulted in an appropriate transfer of child support from the applicant to the first respondent for the period of the change.

15    Accordingly the Objections Officer affirmed the decision of the Decision Maker.

Decision of the Tribunal

16    The applicant applied for review by the Tribunal of the decision of the Objections Officer on 30 September 2016. In a supporting letter to the Tribunal dated 29 September 2016 the applicant submitted, in summary:

    The Objections Officer failed to consider the information the applicant had supplied.

    In respect of Reason 1:

         The Objections Officer failed to recognise that the principles set out in MAV & NTV [2005] FMCAFam 261 were merely a guide to be taken into account alongside other issues of merit, and

         The finding of the Objections Officer that the applicant’s application was in effect a de facto application for a costs order was flawed.

    In respect of Reason 5 the Objections Officer failed to take into account the size of his contributions prior to separation, the importance of the dishonesty of the first respondent, the legal costs incurred, and the applicant’s indebtedness.

17    Subsequently in a letter dated 21 December 2016 the applicant updated his submission to the Tribunal, and included (in summary) the following:

    The applicant had lost employment, which was a factor to be taken into account.

    The Child Support Registrar and the Tribunal were obliged to act in accordance with relevant legislation, as well as the Convention on the Rights of the Child. Opened for signature 20 November 1989. 1577 UNTS 3 (entered into force 2 September 1990).

    The Family Court of Australia (Family Court) would not consider the conduct of the first respondent resulting in the alienation of the children from the applicant until 2018 at the earliest, and to that extent the Child Support Registrar and the Tribunal should not be complicit in supporting “such child abuse”.

    The applicant’s legal costs incurred in attempting to protect the children from the first respondent should be considered in child support decisions

    The first respondent’s superior financial situation and fraud perpetrated on the Department were relevant factors to be taken into account by the Tribunal.

18    The Tribunal affirmed the decision of the second respondent on 20 February 2017. In doing so, the Tribunal found, in summary, as follows.

19    First, the Tribunal rejected the applicant’s argument that his access to his children was a threshold issue in respect of his application to depart from the formula assessment of child support. At [12] the Tribunal acknowledged the applicant’s concerns in respect of the delays experienced in the Family Court, but observed that the Family Court was the proper and only venue for the applicant to argue his case concerning his access to the children. The principal object of the CSA was set out in s 4(1) as being to ensure that children receive a proper level of financial support from their parents.

20    Second, s 98C of the CSA established a three step process for considering applications to depart from the formula assessment of child support under Pt 6A of the CSA. In particular, the Child Support Registrar – and the Tribunal in its place – must be satisfied of three issues:

(1)    One or more than one of the grounds for departure referred to in s 117(2) of the CSA exist; and

(2)    It would be just and equitable as regards the child, the liable parent, and the carer entitled to child support; and

(3)    It would be otherwise proper to make a particular determination.

21    In respect of the first issue the Tribunal addressed the four grounds (or reasons) asserted by the applicant as justifying departure from the formula assessment:

    The cost of spending time with the children. The Tribunal noted that this ground was referable to Reason 1, and ss 117(2)(b)(i) and 117(3B) of the CSA. At [23]-[25] the Tribunal referred to submissions of the applicant at the hearing, including relating to his legal costs, and the observations of the Full Court of the Family Court in Gyselman [1991] FamCA 93; (1991) 103 FLR 156; [1992] FLC 92-279 relating to costs associated with travel. The Tribunal observed at [26] that the Court in MAV & NTV “put the matter of legal costs beyond doubt, finding specifically that such costs could not be considered” and that the Tribunal could find “no precedent for including the cost of psychological assessment as described by [the applicant] or any remotely similar expenses within the scope of subparagraph 117(2)(b)(i) of the Act.” The Tribunal concluded that the costs identified by the applicant were not relevant, and there were no special circumstances that would allow a departure from the administrative assessment under s 117(2)(b)(i) of the CSA.

    Money, goods or property provided for the benefit of the children. The Tribunal noted that the applicant had not pressed this issue in the initial application for departure from the assessment, however it was raised in the objection proceeding in respect of the legal and medical costs incurred by the applicant. The Tribunal referred to the decision of the Full Court of the Family Court in Strauss & Strauss [1998] FamCA 2 as authority for the proposition that uninvited, voluntary or excessive payments for the benefit of the child by a parent, outside the child support assessment, should not affect the payee’s entitlement to receive child support to meet the day-to-day needs of the child (at [33]). The Tribunal accepted at [35] that all of the payments identified by the applicant resulted in a benefit to the children, however that benefit was indirect and difficult to quantify. In particular, the mortgage repayments were of benefit to the children because such payments contributed to the provision of secure accommodation for them, however they also had the effect of ensuring that the significant financial interest of the parties in the property were preserved (at [36]). Further, in circumstances where the applicant had not paid any of the assessed child support, a finding by the Tribunal in terms urged by the applicant could be interpreted as allowing a parent to unilaterally decide what payments constituted child support (at [38]). Accordingly the Tribunal concluded that there were no special circumstances to allow a departure from the administrative assessment.

    Commitments of the applicant to enable him to support himself. The Tribunal observed that the applicant had earlier elected to withdraw his application in relation to this issue, however before the Tribunal the applicant had dealt with the financial circumstances of the parties under Reason 8 and in the context of whether the decision contemplated by the Tribunal was just and equitable.

    The first respondent’s income, property and financial resources. The Tribunal found that the adjustment of the taxable income of the first respondent resulted in an assessment of child support which was unjust and inequitable (at [44]).

22    Second, at [45] the Tribunal noted that, as it was satisfied that there was a ground to depart from the administrative assessment of child support, the next step to consider was whether it was just and equitable to depart from the assessment by reference to the other grounds raised and the matters set out in s 117(4) of the CSA. The Tribunal concluded:

    It was the duty of both parents to financially support their children (at [47]).

    Although the applicant asserted that the needs of the children had not been properly considered by the Department, the proper authority to deal with issues raised by the applicant was the Family Court rather than the Department or the Tribunal (at [48]). To the extent that the Tribunal could consider the needs of the children under s 117(4)(b), it could only do so in accordance with the legislation under which the determination was made (at [49]).

    There was no evidence that either of the children had income or unused earning capacity which was relevant.

    The financial circumstances of the applicant were relevant, and were closely examined by the Tribunal. The Tribunal noted that the applicant had been made redundant, was currently unemployed, and had provided the Tribunal with an accurate picture of his financial position (at [51]-[53]).

    The income of the first respondent exceeded her living expenses, she worked full-time, and her gross income was a little over $90,000 per annum.

    The departure from the formula assessment contemplated by the Tribunal would result in the applicant’s child support liability falling from the $30,940 per annum to $25,156 per annum. Although the applicant was unemployed, he expected a substantial redundancy payment, and had savings. The decision contemplated by the Tribunal would not cause hardship to the applicant.

    The child support assessment started on 8 April 2016, and the applicant applied for the change of assessment on 1 May 2016. The first respondent had been in receipt of income at the current level at least since the commencement of the assessment. It would be just and equitable for the adjusted taxable income calculated for the first respondent to apply from 8 April 2016.

23    The third issue for consideration by the Tribunal was whether it was otherwise proper to depart from the administrative assessment. Section 117(5) sets out matters for consideration. The adjusted taxable income of the first respondent should be set at $89,000 per annum from 8 April 2016 to 30 November 2017. However as this amount was the same as that set by the Objections Officer, the decision of the Objections Officer should be affirmed.

Federal Circuit Court proceedings

24    The applicant sought review of the decision of the Tribunal in the Federal Circuit Court pursuant to s 44 of the AAT Act. In the notice of appeal filed by the applicant in the Federal Circuit Court on 28 March 2017 the applicant relied on the following grounds of review:

(1)    The AAT erred in excluding mortgage repayments being made for the benefit of the children (Reason 5), which, contrary to the AAT’s suggestions, can readily be valued and offset against child support obligations from the date of martial [sic] separation.

(2)    The AAT erred in its arguments based on prior case law – refer to my affidavit for detail.

25    The applicant was self-represented in the proceedings in the Federal Circuit Court. In support of his appeal the applicant filed an affidavit affirmed 28 March 2017, which contained a mixture of evidence and submissions on the part of the applicant. Materially, the applicant deposed:

(1)    Conduct of the first respondent had resulted in the alienation of the applicant from his children. The child support assessments rewarded and encouraged the first respondent to block the applicant’s access to his children (at [7]-[10]).

(2)    The CSA states that the principal object of the legislation is to ensure that children receive a proper level of financial support from their parents. The Child Support Registrar gave too narrow an interpretation to this object. Further, the CSA permits a departure order from the assessed child support amount because of the high legal costs incurred by the applicant to spend time with the children. This was referable to the “special circumstances” of parental alienation and the “special needs” of the children (at [11]-[15]).

(3)    The Child Support Registrar and the Tribunal had misinterpreted the generality of case law precedent, wrongly claiming that the courts have determined that legal costs could not be considered in any situation. Gyselman clearly finds that any kind of “more than normal costs associated with access” should be considered in “special circumstances”, and MAV & NTV was distinguishable from the applicant’s case (at [16]-[18]). Further, the applicant’s legal costs fell within the scope of the CSA and prior judgments, including Gyselman (at [21]), and the consequential debt interest costs he incurred because of legal costs and mortgage costs for the children should also be considered in the relevant assessment (at [21]).

(4)    The applicant was not seeking an order for the first respondent to repay his full legal costs – rather he was asking for his child support obligations to be reduced to zero (or the legal minimum). Unlike in MAV & NTV his entire legal costs had been incurred during the period since separation when he was in effect paying child support by way of mortgage payments for the children’s home (at [19]).

(5)    To the extent that Strauss & Strauss was authority for the proposition that uninvited payments should not be recognised as credits for child support, it was distinguishable from the applicant’s case (at [24]).

(6)    The Tribunal was wrong in finding that the value of the applicant’s mortgage payments to children was hard to quantify, given that his payments would preserve the shared interest in the home asset (at [28]).

26    At a directions hearing on 4 May 2017, and following an application for summary dismissal by the second respondent, the primary Judge informed the applicant that the notice of appeal did not disclose any question of law. His Honour made orders permitting the applicant to file an amended notice. The applicant did not do so.

27    On 25 May 2017 the primary Judge summarily dismissed the proceedings under r 13.10 of the Federal Circuit Court Rules on the basis that no arguable question of law was identified in the notice of appeal and supporting affidavit: Barton v Bergin [2017] FCCA 1112.

Application for extension of time to appeal and leave to appeal

28    Rule 36.05 of the Federal Court Rules 2011 (Cth) (Federal Court Rules) provides that a notice of appeal in the appellate jurisdiction of the Federal Court must be filed within 21 days after the date the relevant orders were made. The last day on which the applicant could have filed a notice of appeal in the Federal Court from the decision of the primary Judge was 15 June 2017. It is common ground that the application filed on 3 August 2017 was 49 days out of time.

29    Although his Honour did not identify the specific paragraph of r 13.10 of the Federal Circuit Court Rules forming the basis of his order summarily dismissing the applicant’s appeal, it is common ground that the summary dismissal order was interlocutory. Certainly an order dismissing a proceeding on the ground that no reasonable cause of action has been disclosed, or that it is an abuse of process, is an interlocutory judgment: DEM16 v Minister for Immigration and Border Protection [2017] FCA 1115 at [11], Zegarac v Rambaldi [2010] FCA 219 at [32], Marketing Advisory Services (MAS) v Football Tasmania Ltd [2002] FCAFC 165; (2002) 42 ACSR 128 at [29] and Weatherall v Satellite Receiving Systems (Australia) Pty Ltd [1999] FCA 741; (1999) 92 FCR 101. Section 24(1A) of the FCA Act requires the leave of either the Court or a Judge of the Court to appeal from an interlocutory decision, and r 35.13(a) of the Federal Court Rules requires an application seeking leave to appeal to be filed within 14 days from when the relevant orders were made. It is also common ground that the applicant was out of time in seeking leave to appeal.

30    In the circumstances it appropriate for the Court to briefly consider principles relevant to extension of time and leave to appeal: see for example discussion of the Full Court in SZVCP v Minister for Immigration and Border Protection [2016] FCAFC 24; (2016) 238 FCR 15 at [13]-[16].

Proposed grounds of appeal

31    The applicant seeks to appeal from the judgment and orders of the Federal Circuit Court on the following grounds:

1.    That his Honour erred in summarily dismissing the applicant’s appeal pursuant to rule 13.10 of the Federal Circuit Court Rules 2001 from the Administrative Appeals Tribunal in that the applicant had two substantial points of law that were raised in his appeal, which were not dealt with by the court, namely:

a.    That both section 71C of the Child Support (Registration and Collection) Act 1988 and regulation 5C of the Child Support (Registration and Collection) Regulations 1988 contemplate credits that may be applied as Prescribed Non Agency Payments to offset an assessment of child support, provided defined circumstances are met and the Administrative Appeals Tribunal had failed to apply the correct test as contemplated by these statutory provisions; and

b.    That the Administrative Appeals Tribunal erred at law in applying the doctrine of Stare Decisis to the single judge decision of Federal Magistrate Sexton (as her Honour was then known) in MAV & NTZ (2005) FMC 261 (31 May 2005), when that decision:

   i.    Was not binding on Judge Street, in any event; and

ii.    Has not been celebrated beyond citation in two cases, namely Kopler (Change of Assessment) [2009] SSATACSA 24 and Lang v Lang [2011] SSATACSA 23; and

iii.    Is not authority for the proposition that this decision put the matter of legal costs beyond doubt, when assessing a departure application under s117 of the Child Support (Assessment) Act 1989, in finding specifically that such costs could not be considered (see [26] of the AAT decision dated 20 February 2017), when such a proposition is contrary to a proper construction of the legislative provisions and contrary to law.

2.    That his Honour failed to give reasons or adequate reasons for summarily dismissing the applicant’s appeal under rule 13.10 of the Federal Circuit Court Rules 2001.

32    Although proposed ground (1)(a) refers to reg 5C of the Child Support (Registration and Collection) Regulations 1988 (Cth) (CSRC Regulations), we understand that this is a typographical error and the reference should be to reg 5D. This is because:

    Regulation 5C is referable to s 39(5) of the CSRC Act and deals with unsatisfactory payment records, which is not relevant to the case the applicant seeks to make;

    On the other hand, reg 5D clearly relates to s 71C of the CSRC Act;

    In submissions the applicant referred to reg 5D; and

    A copy of reg 5D was provided to the Court in the joint list of authorities.

33    We will proceed on the basis that the applicant’s case concerns reg 5D of the CSRC Regulations rather than reg 5C.

Extension of time

34    In considering whether to order an extension of time in which to file a notice of appeal, the Court is required to determine whether an order in such terms is in the interests of justice. This ordinarily requires consideration of issues including the length and explanation for the delay, the nature of the litigation, the prejudice to other parties of a grant or refusal of an extension of time, and the prospects of success of the appeal if it proceeded: see AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193; (2015) FCAFC 193 at [10]-[12].

Explanation for delay

35    In his affidavit dated 1 August 2017, the applicant explains that his delay in filing a notice of appeal was due to his mistake in filing a notice of appeal in the appellate jurisdiction of the Family Court instead of the Federal Court.

36    Pursuant to r 22.03 of the Family Court Rules 2004 (Cth), a notice of appeal can be filed within 28 days of the material decision. The applicant deposes to filing a notice of appeal in the Family Court on 22 June 2017, which was within the time limit prescribed for appeals to the Family Court. On approximately 11 July 2017, he received a letter from the Appeals Registrar of that Court explaining that he had filed in the wrong court. The applicant then filed a notice of appeal in the Federal Court.

37    At the time of filing the application in this Court the applicant was self-represented. In circumstances where the history of relevant litigation involving the applicant and the first respondent had been in the Family Court, and where relevant authorities and issues are in the family law jurisdiction, it is not surprising that the applicant should have thought that an appeal against the decision of the primary Judge in this matter was one for determination by the Family Court. Indeed, it appears that the Registry of the Family Court in Sydney was similarly confused about whether that Court had jurisdiction, which may explain the delay of almost a month before the applicant was informed that he had filed the notice of appeal in the wrong Court.

38    We also note the uncontested contention of the applicant in his affidavit sworn 1 August 2017 that once the applicant was informed by the Family Court of his error in filing the application for judicial review in that Court, he promptly commenced proceedings in this Court.

39    Further, we note that although the primary Judge summarily dismissed the applicant’s notice of appeal on 25 May 2017, the written reasons for decision were not published until 22 June 2017. As the Full Court observed in Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 at [26], the late publication of the reasons, as here, has the consequences that the parties

… had no written statement of reasons on the basis of which to seek legal advice, or to assess, whether or not to institute an appeal and, if so, on what grounds, until after the expiry of the period within which he had a right to appeal. As the Court has elsewhere observed, that is, with respect, an undesirable state of affairs.

40    Even where a notice of appeal is filed within time, delays in delivering the published version of ex tempore reasons increases the likelihood that grounds of appeal or proposed grounds of appeal will require amendment once the written reasons are delivered. Given such considerations, the Full Court in Singh emphasised at [26] that

Written reasons should be published shortly after the giving of ex tempore reasons and well within the appeal period. Where that may not occur, however, it should be borne in mind that FCR r 36.03(b) expressly envisages that the court appealed from may make orders deferring the commencement of the period within which an appeal may be instituted: see CTV15 v Minister for Immigration and Border Protection [2017] FCA 976 at [12]. It is also open, for example, to a Court to defer the date on which the final order as to costs is made until written reasons are published thereby achieving the same result.

41    Because of the detrimental effect that significant delay in publishing written reasons potentially has on the exercise of appellate rights, such delays may provide a reasonable excuse for delay in instituting proceedings, depending on the facts of the case.

42    In our view the applicant has provided a satisfactory explanation for failing to file the notice of appeal in this Court within the time prescribed by the Federal Court Rules.

Prejudice

43    The first respondent submits that, in light of the lengthy delay, she would experience prejudice in the event that the Court granted an extension of time in which to appeal. While we accept that the grant of an extension of time would inevitably prejudice the first respondent because it prevents her enforcing the decision of the primary Judge and requiring the applicant to pay her monies by way of child support, this prejudice is really referable to the prolongation of the existing proceedings. While this is unfortunate from the perspective of any litigant, the prolongation of litigation in itself does not constitute prejudice justifying the refusal of the application for extension of time.

Merit in proposed grounds of appeal

44    In respect of the proposed grounds of appeal, the respondents conceded that the primary Judge failed to give reasons or adequate reasons for summarily dismissing the applicant’s appeal in the Federal Circuit Court. To that extent, there is no real dispute that there is merit in at least proposed ground of appeal 2, thus warranting an order extending time to file the notice of appeal. We will return to proposed ground of appeal 1 later in this judgment.

Leave to appeal

45    The principles governing the grant or refusal of leave to appeal from an interlocutory judgment were explained in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399 and recently reiterated in Nationwide News Pty Limited v Rush [2018] FCAFC 70 at [3]. The first question is whether, in all the circumstances, the interlocutory judgment is attended with sufficient doubt to warrant it being reconsidered on appeal. The second question is whether substantial injustice would result if leave were refused, supposing the interlocutory judgment to be wrong.

46    We have already noted that his Honour summarily dismissed the application before him on the basis that neither the application nor the supporting affidavit identified an error or a question of law. However it is not readily apparent why his Honour took the view that neither of these documents identified any question of law for determination. As Flick J observed in SZKLO v Minister for Immigration and Citizenship [2008] FCA 735; (2008) 102 ALD 115 at [26]:

Whatever the ground of review, however, the reasons of the Federal Magistrates Court must be sufficient to explain to both the litigant and others the basis upon which that Court proceeded and the reasons why the application to review the decision of the Tribunal is either to be dismissed or why the decision is said to be wrong in law. Reasons do not adequately address the grounds of review sought to be resolved if the litigant — or this Court — is left to speculate as to what it was that the Federal Magistrate had in mind when he reached the conclusions that formed the final decision.

47    See further observations by Flick J in SZKLO at [19]-[20], and comments of the New Zealand Court of Appeal in Bell-Booth v Bell-Booth [1998] 2 NZLR 2 at 6, Griffiths J in COZ16 v Minister for Immigration and Border Protection [2018] FCA 46 at [32], and the Full Court in DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175 at [47].

48    In his application before the primary Judge the applicant challenged the Tribunal’s finding that the mortgage payments could not be included in the assessment of child support. Further, as we have already noted, the applicant’s affidavit raised issues including whether mortgage payments and legal costs incurred in seeking access constituted child support contributions, whether the decisions in Gyselman and MAV & NTV were properly decided or distinguishable, whether Strauss & Strauss was distinguishable, and whether the Tribunal erred in finding that the value of the mortgage payments to the children was difficult to quantify.

49    We note that the respondents concede that inadequate reasons were given by the primary Judge for the summary dismissal of the applicant’s claims.

50    It is not in serious dispute that substantial injustice would result if leave were refused, supposing the interlocutory judgment of his Honour to be wrong

51    In the circumstances it is appropriate that we grant the applicant leave to appeal the decision of the primary Judge.

Dealing with the appeal

Remitting the proceedings to the Federal Circuit Court

52    In this case the proceedings were dismissed summarily with no reasons given other than the absence of an identified question of law. The respondents do not dispute that the reasons of the primary Judge were inadequate. Further, it was not seriously disputed by the respondents that, as claimed by the applicant and contrary to the finding of his Honour, the applicant did identify questions of law for consideration by the primary Judge and that those questions of law were referable to s 71C of the CSRC Act and reg 5D of the CSRC Regulations.

53    An appropriate order could be to allow the appeal and remit the proceedings to the Federal Circuit Court for determination according to law.

54    However at the hearing of the appeal Mr Dixon SC for the first respondent submitted that the substantive argument of the applicant had no merit, and in any event the Court ought to ensure that the substantive issues between the parties were decided to prevent the matter continuing through the different courts (see, eg, transcript p 4 lln 11-19). Neither the applicant nor the second respondent demurred at the prospect of this Court considering the substantive issues in the case. Rather, Counsel for each party made extensive submissions to the Court in respect of the reasons of the Tribunal, and whether the Tribunal had erred as a matter of law in those reasons.

55    There are, however, a number of difficulties with this approach.

56    First, as Perry J observed to the parties in arguendo during the hearing, there is extensive case law rejecting any obligation on the part of an appellate court to determine matters which should have been considered and determined by the court at first instance.

57    In Coulton v Holcombe (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ said at 7:

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.

58    See also BEA15 v Minister for Immigration and Border Protection [2018] FCA 639 at [14], CWD16 v Minister for Immigration and Border Protection [2018] FCA 578 at [19], EBC16 v Minister for Immigration and Border Protection [2018] FCA 210 at [8], Al-Dmour v Minister for Immigration and Border Protection [2018] FCA 429 at [29], SZTIS v Minister for Immigration and Border Protection [2017] FCA 545 at [38]-[39], AAM15 v Minister for Immigration and Border Protection [2015] FCA 804; (2015) 231 FCR 452 at [14]-[15], SZUGL v Minister for Immigration and Border Protection [2015] FCA 868 at [18], SZUHQ v Minister for Immigration and Border Protection [2015] FCA 869 at [13], SZMUV v Minister for Immigration and Citizenship [2009] FCA 205 at [16] and SZFPA v Minister for Immigration and Citizenship [2008] FCA 1220 at [18].

59    This principle was reiterated recently by Perram J in AXL16 v Minister for Immigration and Border Protection [2018] FCA 208 where at [26] his Honour said:

That leaves the substantive ground pursued in the Court below. In light of the above findings this case has not yet been adequately tried. The Federal Court of Australia Act 1976 (Cth) confers appellate, not original, jurisdiction on the Court in cases such as the present: s 24(1)(d). The exercise of appellate jurisdiction is concerned with the correction of error: Branir Pty Ltd v Owston Nominees (No.2) Pty Ltd [2001] FCA 1833; 117 FCR 424 at [20]-[25]. It would erode the appellate nature of this Court’s jurisdiction if it were routinely to carry out the Federal Circuit Court’s work for it: SZKLO v Minister for Immigration and Border Protection [2008] FCA 735 (‘SZKLO’) at [41] per Flick J.

60    In SZKLO in an appeal from the Federal Magistrates Court (as it then was), Flick J found that the inadequacy in the reasons provided was a basis upon which an appeal could be allowed, but noted the submission of the respondent in that case that that course should not be followed in circumstances where an order remitting the proceedings to the Federal Magistrate for further consideration would be an exercise in futility. His Honour said:

40    However that course, it is considered, should be resisted for a number of reasons.

41    First, the initial responsibility to review the decision of the Tribunal has been entrusted by Commonwealth Parliament to the Federal Magistrates Court, not to this Court. However administratively convenient it may be for this Court to “fill the gap” in those rare circumstances where there is found to be an inadequacy in the approach pursued by a Federal Magistrate, to do so would not be consistent with the processes of review as prescribed by the legislature.

42    Second, of considerable value is the discipline that the process of reasoning imposes upon any judicial office-holder. What may appear to be a self-evident result at the outset of proceedings may confront difficulties unforeseen until the drafting of reasons commences; and what may initially be considered self-evidently correct may prove to be manifestly wrong as the discipline of drafting reasons progresses. Even if the Federal Magistrate in the present proceedings does ultimately reach the same conclusion, the legislature has entrusted the responsibility to review the Tribunal’s decision to the Federal Magistrate. This Court performs an appellate function. The decision of the Federal Magistrate should not usually be pre-empted by too readily concluding on appeal that only one result was open to the Federal Magistrate.

43    Third, this Court is heavily dependent upon the Federal Magistrates Court, particularly in the migration jurisdiction, and relies to a considerable extent upon the reasons for those decisions which are the subject of appeal. It is not considered that this Court should be denied the significant benefit that it receives from the reasoned decisions of the Federal Magistrates Court.

61    We agree with this articulation of principle.

62    Second, the grounds of appeal do not contemplate the engagement by the Court in the type of analysis (and determination) proposed by the first respondent.

63    In the first ground of appeal the applicant claims that the primary Judge erred in summarily dismissing the proceedings when two identified points of law were raised before his Honour. In the second ground of appeal the applicant claims that the primary Judge failed to give reasons or adequate reasons for summarily dismissing the proceedings. Any decision upholding the appeal on either of these grounds is inevitably referable to failure on the part of the primary Judge to properly consider the case before that court. The usual response by an appellate Court would be to remit the proceedings to the primary Judge, or to another Judge of the Federal Circuit Court, for consideration and determination according to law.

Powers of the Court under s 28(1)

64    However, and notwithstanding these principles, the Court has jurisdiction pursuant to s 28(1) of the FCA Act to:

(a)    affirm, reverse or vary the judgment appealed from;

(b)    give such judgment, or make such order, as, in all the circumstances, it thinks fit, or refuse to make an order …

65    In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132; (2007) 162 FCR 466, the Full Court said:

108    … The exercise of the appellate jurisdiction under s 28(1) of the Federal Court of Australia Act enlivens a wide range of powers. These include a power to give such judgment or make such order as, in all the circumstances, the Court thinks fit (s 28(1)(b)). In exercising those powers, the Court must always have regard to the interests of justice, including the correction of error or injustice, the need of the parties for finality in the matter, the public interest in finality of litigation and the fair and open administration of justice, and the requirement in s 24(1) to hear and determine the appeal. Where no miscarriage of justice has occurred as a result of an error at the trial, a new trial may be refused (Conway v The Queen [2002] HCA 2; (2002) 209 CLR 203 at 219-220 [36]-[38] per Gaudron ACJ, McHugh, Hayne and Callinan JJ).

109    Not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial, but where the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact the position may be different (Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at 145 per Mason, Wilson, Byrne, Deane and Dawson JJ). Their Honours said that this was especially so when the issue was whether the evidence of a particular witness should be accepted because it would be more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference.

66    Earlier in Minister for Immigration and Multicultural Affairs v Thiyagarajah [2000] HCA 9; (2000) 199 CLR 343 Gaudron J said at [45]:

The power conferred by s 28(1)(b) of the Act is not at large. It is confined by the subject-matter of the proceedings and the issues joined between the parties. Ordinarily, that has the consequence that, on appeal, the Federal Court can and should make those orders which, in its view, could and should have been made at first instance. At least that is so in the case of an appeal in the strict sense where the issue is simply whether the decision appealed from was or was not correct when given.

(see also Thiyagarajah at 357 per Gleeson CJ, McHugh, Gummow and Hayne JJ; Robins v Incentive Dynamics Pty Ltd [1999] FCA 1651; (1999) 91 FCR 423 at 432 and Minister for Immigration and Citizenship v Maman (No 2) [2012] FCAFC 35 at [9])

67    The provisions of s 28(1)(b) in this respect appear to reflect the common law principle that the Court should not order a new trial where an error of law, fact, misdirection or other wrong has not resulted in any miscarriage of justice. This was explained in the following terms by Dixon CJ in Balenzuela v De Gail (1959) 101 CLR 226 at 234-235:

… the true view, it may be suggested, is that at common law it was necessary to grant a new trial unless the court felt some reasonable assurance that the error of law at the trial whether in a misdirection or wrongful admission or rejection of evidence or otherwise was of such a nature that it could not reasonably be supposed to have influenced the result or because, in any case, as a matter of law the same result must have ensued.

(see also Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145, Conway v The Queen [2002] HCA 2; (2002) 209 CLR 203 at [28], Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; (2002) 209 CLR 478 at [7],[10], Collaroy Services Beach Club Ltd v Haywood [2007] NSWCA 21 at [52]), Department of Education & Training v Sinclair [2005] NSWCA 465 at [73]).

68    In essence, the first respondent submits that it would be appropriate for this Court to exercise its discretion pursuant to s 28(1)(b) to dismiss the appeal, because the claim of the applicant that the Tribunal erred has no merit, and therefore remitting the decision to the Federal Circuit Court would be a waste of time and significantly increase the costs of the parties (which are already significant). In the circumstances of this case, whether a substantial wrong or miscarriage of justice has occurred – thus informing the issue whether the Court should exercise its discretion pursuant to s 28(1)(b) to refuse to make an order allowing the appeal – depends upon whether it was reasonably open to his Honour in the primary proceedings to consider that the Tribunal had erred in the manner identified by the applicant in the notice of appeal and affidavit in the Federal Circuit Court.

69    Having examined the applicant’s notice of appeal and affidavit in the Federal Circuit Court, we are satisfied that the Tribunal did not err, that it was not reasonably open to the primary Judge to find that the Tribunal erred, and that there is no utility in remitting the proceedings to the Federal Circuit Court. We have formed this view for the following reasons.

Legislative framework

70    The principal object of the CSA is “to ensure that children receive a proper level of financial support from their parents”: (s 4(1) of the CSA). The rate of child support payable by a liable parent is generally based on an administrative assessment under Pt 5 of that Act. This requires the application of a statutory formula which takes into account factors such as the number of children, the level of care provided, and the income of each parent.

71    A liable parent, or carer entitled to child support, may apply under s 98B of the Act to the Child Support Registrar for a determination under Pt 6A (ss 98A-98B) to depart from the child support administrative assessment. The criteria for a determination to depart from the formula assessment are specified in s 98C. Under subs (b) of that section, the Child Support Registrar, and the Tribunal standing in its shoes, must first be satisfied:

(i)    that one, or more than one, of the grounds for departure referred to in subsection (2) exists; and

(ii)    that it would be:

(a)    just and equitable as regards the child, the liable parent, and the carer entitled to child support; and

(b)    otherwise proper;

to make a particular determination under this Part …

72    Section 98C, in turn, requires that the grounds for departure from the provisions of the Act relating to administrative assessment of child support are the same as those set out in s 117(2) as if the references to a “court” were a reference to the “Registrar”, and to an “order”, as if it were a reference to a “determination”. The grounds for departure specified in s 117(2) include:

(a)    that, in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of:

…

(iv)    high costs involved in enabling a parent to spend time with, or communicate with, any other child or another person that the parent has a duty to maintain;

(b)    that, in the special circumstances of the case, the costs of maintaining the child are significantly affected:

(i)    because of high costs involved in enabling a parent to spend time with, or communicate with, the child; or

(c)    that, in the special circumstances of the case, application in relation to the child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child:

(i)    because of the income, earning capacity, property and financial resources of the child; or

(ia)    because of the income, property and financial resources of either parent; or

(ib)    because of the earning capacity of either parent; or

(ii)    because of any payments, and any transfer or settlement of property, made or to be made (whether under this Act, the Family Law Act 1975 or otherwise) by the liable parent to the child, to the carer entitled to child support or to any other person for the benefit of the child.

73    Section 117(2B) defines the circumstances in which a parent’s costs can be regarded as “high” for the purposes of s 117(2)(a)(iv) and 117(2)(b)(i) as follows:

(2B)    A parent’s costs involved in enabling the parent to care for a child can only be high for the purposes of subparagraph (2)(a)(iv) or (2)(b)(i) if the costs that have been or will be incurred, during a child support period, total more than 5% of the amount worked out by:

(a)    dividing the parent’s adjusted taxable income for the period by 365; and

(b)    multiplying the quotient by the number of days in the period.

74    Each of the grounds (described by the Tribunal as “reasons”) require that “special circumstances” be established although there is no definition of that phrase in the Act. However, the Full Court of the Family Court considered in Gyselman at 164 that to establish special circumstances, the facts of the case must establish something which is:

… special or out of the ordinary. That is, the intention of the legislature is that the court will not interfere with the administrative formula result in the ordinary run of cases.

75    Where the decision-maker is satisfied that grounds exist and that it would be just and equitable and otherwise proper to make determination, the Tribunal must make one of the determinations set out in s 98S. These include varying the annual rate of child support payable or a parent’s adjusted taxable income (s 98S(1)(a) and (g) respectively).

Issues raised by the applicant in respect of the decision of the Tribunal

(1) The Tribunal failed to apply the correct test contemplated by s 71C of the CSRC Act and reg 5D of the CSRC Regulations

76    This aspect of the applicant’s case is, in summary, that the Tribunal was in error in failing to deal with the question of whether mortgage payments could be taken as prescribed non-agency payments by virtue of s 71C of the CSRC Act and (the now repealed) reg 5D of the CSRC Regulations. Section 71C materially provides as follows:

Other payments of up to 30% of child support liability

(1)    If

(a)    the payer of an enforceable maintenance liability in relation to a payment period or initial period has made one or more payments to the payee of the liability, or to another person; and

(b)    the payment is a payment of the kind specified in the regulations; and

(ba)    at the time the payment is made, the payer does not have at least regular care of any of the children to whom the relevant administrative assessment relates; and

(c)    the sum of those payments exceeds the sum of all such payments previously credited under this section against the amount payable under the liability for all past periods; and

(d)    the payer does not, at the time at which the Registrar applies this section, have at least regular care of any of the children to whom the relevant administrative assessment relates;

then the Registrar must, despite section 30, credit the excess amount mentioned in paragraph (c) against the amount payable under the payer’s liability for the period, up to a maximum of 30% of the amount payable.

77    At material times, reg 5D of the CSRC Regulations provided:

Specified payments (Act s 71C)

For paragraph 71C (1) (b) of the Act, specified payments are payments of the following kinds:

(a)    child care costs for the child who is the subject of the enforceable maintenance liability;

(b)    fees charged by a school or pre-school for that child;

(ba)    amounts payable for uniforms and books prescribed by a school or pre-school for that child;

(c)    fees for essential medical and dental services for that child;

(d)    the payee’s share of amounts payable for utilities, rates or body corporate charges for the payee’s home;

(e)    the payee’s share of amounts payable for utilities, rates or body corporate charges for the payee’s home;

(f)    the payee’s share of repayments on a loan that financed the payee’s home;

(g)    costs to the payee of obtaining and running a motor vehicle, including repairs and standing costs.

78    The particular prescribed non-agency payment category on which the applicant relies is found in reg 5D(f). In summary, the applicant claims that:

    Payment of mortgage expenses can be treated as a non-agency payment;

    It was common ground that the applicant had made mortgage payments in respect of the house in which the first respondent and the children lived; and

    The applicant had an arguable case in his appeal to the Federal Circuit Court that the Tribunal failed to give proper consideration to the legislative provisions that apply to his assertion that his payment of mortgage ought to have been taken into account.

79    Against the background of this framework, we note first that there was nothing in the Tribunal’s reasons for decision which indicated that it was asked to consider the application of s 71C or reg 5D(f). Any alleged error of the Tribunal could only be referable to an argument put to it by the applicant, and this did not include the specific legislation now relied on by the applicant.

80    However, second, and turning to the essence of the applicant’s case on this point, we note that in its decision the Tribunal:

    acknowledged that the children benefitted from having secure accommodation as a result of, inter alia, the mortgage payments made by the applicant, but

    considered that it was not possible to separate the objective of providing the children with accommodation from the other objectives of the applicant and first respondent, namely the protection of their interest in the matrimonial home.

81    The Tribunal noted further that the mortgage payments represented a tiny fraction of the parties’ interests in the matrimonial home, and had the effect of preserving those interests.

82    It is not in dispute that applicant had a substantial personal interest in preserving his interest in the matrimonial home until it could be sold. This point was, in effect, conceded by the applicant himself in the form of the consent orders made on 9 August 2016 by the Federal Circuit Court to which the applicant and the first respondent were parties. These orders were expressed to finally determine a property settlement between the applicant and the first respondent in relation their real property, including the matrimonial home on which the applicant had made the relevant mortgage payments. The Tribunal also noted that those orders were obviously made at a time well after the making of the payments which the applicant asserted caused the formula assessment to be unfair. The Tribunal continued:

37    … The Tribunal is not party to the consideration that led to the property settlement, however it is reasonable to think that the settlement was reached in full knowledge of relevant payments made by the parties prior to the settlement. That being the case there is some danger of a finding under this heading having the effect of undermining the parties’ consent orders concerning the property settlement.

83    The existence and nature of these consent orders to which the Tribunal referred were not in dispute. Paragraph [D] of the Minutes of Property Consent Orders specifically provided that the parties had entered into a binding Child Support Agreement which was to take effect from the date these orders were made. The orders were expressed to be final property consent orders in terms of the document attached to the orders, and provided further that all extant property applications be otherwise dismissed. They also made specific provision for the matrimonial property, including the discharge of the mortgage on that property by the applicant ([2.2]), the transfer by the first respondent of her interest in the matrimonial property to the applicant in the event that the applicant sought to purchase her interest ([1]) and a detailed list of events to follow the sale of the property in the event that the applicant chose not to purchase the first respondent’s interest. Paragraph [22] of those orders further provided that:

From the date of these Orders until the first due date, the wife shall be responsible for the repayments in relation to the mortgage instalments, provided that the husband is paying periodic child support in accordance with the Binding Child Support Agreement.

84    It was common ground that the applicant did not pay periodic child support in accordance with the agreement with the first respondent.

85    No flaw is apparent in this reasoning of the Tribunal. We agree with the Tribunal that any finding as sought by the applicant would be inconsistent with consent orders already made by the Federal Circuit Court, which made provision for resolution of property matters in light of a binding child support agreement between the parties. It is evident that, for reasons best known to him, the applicant no longer supports those orders.

86    Third, the applicant submitted that the decision of the Family Court in Strauss & Strauss was distinguishable from his case because the relevant payments in Strauss & Strauss had been made prior to and on separation of the matrimonial couple, whereas the mortgage payments in this case had been made after separation and “purely for the benefit of the children”. He also claimed that the Registrar had failed to advise him that his past mortgage payments could be recognised as child support if the assessment started from the date the applicant and first respondent separated.

87    In Strauss & Strauss the primary Judge had found that the Registrar’s discretion pursuant to ss 71 and 71A of the CSRC Act (as then enacted) to credit non-agency payments only applied if the payments were made after the child support liability had been registered with the Registrar. The husband in that case had argued that the Registrar can credit overpayments of child support liability against payments to be made for a child support liability which is subsequently registered. However, the Full Court of the Family Court rejected that argument on the basis that, inter alia, the legislation only related to payments which had been made to the payee in respect of a maintenance liability registered at that time.

88    In Strauss & Strauss the Full Court of the Family Court said:

Although an assessment fixes the amount of liability under that Act, there is nothing to prevent the payer paying more than that figure, especially if it is low as it was here. This may be because the payer chooses to make more realistic payments for the support of his or her children or to obviate the likelihood of a departure application. It is only where both parties agree that the additional payments are to be credited against future assessments that either ss.71 and 71A of the Registration Act or s.143 of the Assessment Act would apply. In addition, as the wife suggested here, the payments may be for spousal maintenance or to meet other debts including debts due at separation, or to allow the household to be maintained at a basic level.

89    Strauss & Strauss was discussed by the Full Court of the Family Court in Whipp & Richards [2012] FamCAFC 11; (2012) 257 FLR 395:

199.    In that decision the Full Court discussed the underlying structure and relationship between the CSAA and CSRCA and at 84,949 to 84,950 commented that:

The Assessment Act and the Registration Act, although integral parts of the overall child support reforms, are directed to different aspects within that overall framework. The Assessment Act... provides for the administrative assessment of child support by the application by the Registrar of the formula provided in that Act or by the acceptance by the Registrar of a child support agreement. The Assessment Act is not concerned with the question of the collection or enforcement of that liability by the Registrar...

On the other hand, the Registration Act is concerned with the registration of certain maintenance liabilities and their enforcement and collection by the Registrar...The purpose of that Act was to remedy the previous situation under which there were no satisfactory methods of enforcement of maintenance liabilities through a government agency dedicated to that purpose. Where the payee is in receipt of an income tested pension or benefit, that person is generally required to register a child support assessment or agreement with the Registrar. That enables the Registrar to collect and enforce the liability, and the Department of Social Security to make any appropriate adjustments to the pension or benefit payments.

...

Difficulties can arise in that process where payments are made by the payer direct to the payee and accepted by both as being on account of the child support liability and/or where the payer on the same basis makes payments to third parties such as the payment of school fees or medical expenses. It was for those reasons that ss 71 and 71A were introduced into the legislation.

But the sections are quite specifically delineated in their operation. The essential point in this case is that the sections apply only to “an enforceable maintenance liability” which... means a child support assessment from the time it is registered with the Registrar under the Registration Act. In those circumstances, but only in those circumstances, and where the amount is intended by both parties to be in complete or partial satisfaction of the child support liability (present or future), and the Registrar is satisfied that “in the special circumstances of the particular case” the amount in question should be treated “as having been paid to the Registrar”, the Registrar “shall, in spite of section 30, credit the amount received by the payee against the liability of the payer to the Commonwealth in relation to the amount payable under the liability.”

200.    As the above reasoning makes clear the crediting of debts, payments to third parties or non money payments under the CSRCA can occur in circumstances where there is a registered and enforceable child maintenance liability and where the money or non money amount or debt owing to a third party is intended by both parties to be paid by the payer in partial or complete satisfaction of a child support liability. It seems that the use of the word intend in s 71B(1) and intended in s 71(1)(a) and s 71A(1)(c), and the limitation in s 71C of a thirty percent credit of the amount of any other payments made pursuant to regulation 5D, indicate that these sections of the CSRCA attempt to ensure that a payee continues to receive the majority of an assessed amount of child support payable in circumstances where a credit is not agreed or intended by the payer and payee to be paid in partial or complete satisfaction of a child support liability and is sought to be paid by the payer in order to reduce the amount of child support payable.

(Emphasis added.)

90    As explained by the Full Court of the Family Court in Strauss & Strauss, and reiterated in Whipp & Richards, payments made prior to the creation of an enforceable maintenance liability under the CSRC Act do not fall within s 71C of that Act such as to be set off against that liability. The relevant enforceable maintenance liability in this case was registered on 8 April 2016, and it is not in dispute that the relevant mortgage payments were made prior to that date.

91    However, in any event, in its reasons for decision the Tribunal noted the decision of the Family Court in its reasons for decision at [33], and stated:

Moreover, in Strauss & Strauss [1998] 2 [sic] FamCA 2 the Full Court of the Family Court observed that an uninvited, voluntary or excessive payment for the benefit of the child by a parent, outside the child support assessment, should not affect the payee’s entitlement to receive child support to meet the day-to-day needs of the child.

92    This is a correct statement of principle. The Tribunal formed the view that while the children would “certainly benefit from having secure accommodation”, it did not accept the applicant’s claim that the mortgage payments had been made “purely for the benefit of the children” in light of the objective of the applicant in protecting the parties’ interest in the matrimonial home. We see no reason to disturb this finding. A departure from the administrative assessment under s 117(2)(c)(ii) of the CSA could only be warranted by “special circumstances” within the meaning of s 117(2)(c)(ii) (and s 98C of the CSA). As the Tribunal correctly identified, the fact that the applicant made mortgage payments on a house in respect of which he had a substantial personal interest, where those payments represented a tiny fraction of the size of that interest, was not a basis on which the Tribunal could find special circumstances allowing a departure from the administrative assessment within the meaning of s 117(2)(c)(ii) of the CSA notwithstanding that the children lived in that house.

93    In our view, this aspect of the applicant’s case lacks merit.

(2) Whether MAV & NTZ was incorrect or distinguishable

94    In relation to this issue the applicant argues that the decision of the Federal Magistrates Court (as it then was) in MAV & NTZ was incorrect and should not have been applied by the Tribunal as authority for the proposition that legal costs incurred by a parent in seeking access to a child should not be taken into account in assessing a departure application under s 117 of the CSA.

95    In summary, in MAV & NTZ the relevant parties (being a mother and father) had three children and had separated. Interim orders were made for the children to have supervised contact with the father, and final orders were subsequently made for supervised contact until a certain date, followed by unsupervised contact following that date. The Full Court of the Family Court allowed an appeal by the mother and ordered supervised contact. At a later time, following a contested hearing, the Family Court ordered the children to have contact with the father, initially supervised and then unsupervised. Costs orders were made in favour of the father on two separate occasions. At the material time the father was unemployed, was subject to a child support liability of $21.67 per month, and owed child support arrears.

96    Sexton FM examined principles relating to departure proceedings under the CSA. Her Honour referred to the decision of the Full Court of the Family Court in Gyselman, noting that the process the Court must follow under section 117 of the CSA was qualified by the words “in the special circumstances of the case.” In particular, her Honour noted the following excerpt from Gyselman:

Whilst it is not possible to define with precision the meaning of that term, as a generality it is intended to emphasise that the facts of the case must establish something which is special or out of the ordinary. That is, the intention of the Legislature is that the Court will not interfere with the administrative formula result in the ordinary run of cases. In Savery’s case (p77-897), Kay J adopting the view in Phillipe and Philippe (1978) FLC 90-433 in a different context, said that “special circumstances” were “facts peculiar to the particular case which set it apart from other cases”. The approach to the interpretation and application of the particular grounds in s.117(2) must be guided by that qualification.

97    Relevantly for the purposes of this appeal, her Honour examined the submission of the father in MAV & NTV that the whole of the legal costs incurred by him were costs to be considered pursuant to s 117(2)(b)(i)(A) of the CSA, and that a resident parent must be brought to account for imposing high costs on the other parent if the resident parent had taken an unreasonable position in enabling the other parent to have contact. In this respect the father relied on the following passage in Gyselman at 79,068:

Although this is the most common case the provision is not confined to that and it will in an appropriate case include other costs which it is necessary for the non-custodian to incur for access to take place. This may include accommodation if it satisfies those criteria and there may be other costs such as additional expenses caused by the medical condition of the child. Provided that the distinction referred to above is recognized, namely that it does not include the ordinary costs involved in the actual access itself, it is a matter for the Trial Judge to determine whether the facts fall within this ground, whether they amount to “high costs” within sub-section (3), whether they constitute “special circumstances” and whether the requirements of sub-sections (4) and (5) and the objects of the legislation are satisfied.

98    Her Honour rejected the father’s submission. In particular, her Honour observed:

43.    I agree with the mother’s counsel that it was not open to the father to seek a further costs order via a child support departure application. I also agree with counsel for the mother that it would be untenable for a court hearing a child support departure application to be required to make an assessment of the reasonableness or otherwise of the legal costs incurred in contact proceedings.

44.    An assessment of the father’s contact legal costs during child support proceedings would involve an inquiry into the reasonableness or otherwise of the costs orders already made by the Family Court in the contact proceedings. It would require this court to go behind an order of the Trial Judge who conducted the proceedings. This in turn, would require an assessment of the merits of each party’s case in the contact proceedings conducted in the Family Court, which is plainly inappropriate. It is an erroneous interpretation of the section to include legal costs in contact proceedings as costs to be taken into account pursuant to section 117(2)(b)(i)(A).

99    In the present matter the applicant submits, in summary, that:

    MAV & NTV has only been followed in two cases;

    the Tribunal erred in finding that the decision of MAV & NTV put beyond doubt the question whether legal costs in seeking spend time orders can be used to offset child support;

    he incurred high costs in the Family Court in seeking to spend time with the children, the legislation recognises that there are high costs involved in caring for a child which can include litigation costs, and the Tribunal was obligated to consider and to form a view based on whatever evidence was presented at the time; and

    MAV & NTV was wrongly decided, or is distinguishable because there was already a costs order in place in that case.

100    In relation to these points, we make the following observations.

101    First, the fact that MAV & NTV may have been applied in only a few cases is irrelevant. As was pointed out in the hearing of this appeal, the absence of specific mention in relevant case law may simply mean that the issues determined in this case have been considered uncontroversial.

102    Second, insofar as the Tribunal was concerned it was bound by the decision in MAV & NTV. Her Honour in MAV & NTV clearly found that it was an erroneous interpretation of s 117(2)(b)(i)(A) to include legal costs in contact proceedings as costs to be taken into account pursuant to that section. This was the law as applied by the Tribunal.

103    Third, the applicant directed our attention to the Revised Explanatory Memorandum to the Family Law Amendment Bill (Shared Parental Responsibility) Bill 2005 (Cth) as supportive of his case. The Explanatory Memorandum relevantly provided as follows:

Item 35 – Subparagraph 117(2)(a)(iv)

987.    Item 35 repeals and replaces subparagraph 117(2)(a)(iv) of the Child Support Act which provides that a court may depart from the formula assessment prescribed in the Act, where a parent has high costs enabling the parent to have contact with a child. This item substitutes the word “contact” with “care for”. This amendment updates the terminology to remove the reference to contact.

988.    The costs of a parent caring for the child are intended to be included in the court’s consideration. This can include travel, telephone costs and accommodating the child during periods of care. These reasons are not intended to be limited and could possibly include legal costs of seeking orders to enable a parent to maintain their relationship with the child. However, this is not intended to apply to costs incurred when seeking an order as to where the child is to live.

Item 36 – Subparagraph 117(2)(b)(i)

989.    Item 36 repeals subparagraph 117(2)(b)(i) of the Child Support Act which provides that a court may depart from the formula assessment prescribed in the Act, where high costs are involved in enabling a parent to have contact with a child. This item substitutes the word ‘contact’ with ‘care for’. This amendment updates the terminology to remove the reference to contact.

990.    The possible ‘high costs’ of caring for a child are described in item 35 of this Schedule, above.

(Emphasis added.)

104    The Revised Explanatory Memorandum offers no support for the applicant’s case. Under s 15AB(1) of the Acts Interpretation Act 1901 (Cth), extrinsic material can only be considered if it is “capable of assisting in the ascertainment of the meaning of the provision”. It is s 117(2)(b) of the CSA that falls for interpretation in this case since the Tribunal’s decision and MAV & NTV were concerned with that provision. The passage at [990] of the Revised Explanatory Memorandum relied upon by the applicant in turn relies on [988], which deals with a different provision, s 117(2)(a)(iv). As we will explain, [988] is not capable of assisting in ascertaining the meaning of s 117(2)(a)(iv), let alone s 117(2)(b).

105    Section 117(2)(a)(iv) was added by the Child Support Legislation Amendment Act (No. 2) 1992 (Cth) and at that time referred to “high costs involved in enabling parent to have access to ....”. This language, and that of s 117(2)(b), was updated under the Family Law Reform (Consequential Amendments) Act 1995 (Cth) by replacing “access to” with “contact with”. It was updated again under the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) by replacing “contact with” with “care for”. Finally, it was updated again under the Families, Community Services and Indigenous Affairs Legislation Amendment (Child Support Reform Consolidation and Other Measures) Act 2007 (Cth) by replacing “care for” with “spend time with, or communicate with”. The purpose of each of these the amendments was to keep the terminology used in the CSA consistent with changes in the terminology used in the Family Law Act 1975 (Cth). The Revised Explanatory Memorandum relied on by the applicant is for the Bill introducing the 2006 amendment. Despite that amendment only affecting the terminology used in the provision and not its substance, the passage pointed to by the applicant in [988] indicates that it is “intended” that legal costs might be taken into account. In doing so, the passage purports to impute that intention to the Parliament that enacted the legislation introducing s 117(2)(a)(iv) some 14 years earlier. The writer of the Explanatory Memorandum has sought to rewrite history. This illustrates the danger of using extrinsic material, prepared by some unknown writer employed in the public service department administering the proposed legislation, to determine the intention of Parliament. The passage that the applicant relies upon is of no assistance at all in construing s 117(2)(a)(iv) of the CSA.

106    The applicant’s construction of s 117(2)(b) relies on [990] of the Explanatory Memorandum, which relies on the description of possible “high costs” described in [988]. Just as [988] cannot assist in the construction of s 117(2)(a)(iv), [990] cannot assist in the construction of s 117(2)(b).

107    Fourth, while in MAV & NTV costs orders had already been made at the time of the decision, the principle articulated by her Honour is equally applicable in the present case. At [44] of MAV & NTV, her Honour noted that accepting a departure from assessed child support would require an assessment of the merits of each party’s case in the contact proceedings conducted in the Family Court, and this was plainly inappropriate. In our view this principle is sound, and at least equally applicable to circumstances where the Family Court has yet to make any costs orders in family law proceedings. To find otherwise than consistently with this principle would require an administrative decision-maker, in effect, to pre-empt the decision the Family Court might ultimately make as to where legal costs should lie, at the same time reducing the amount of the child support payments. We consider that MAV & NTV was correctly decided, and is not distinguishable from the present case.

108    Finally, the applicant’s fundamental complaint with the Tribunal’s decision insofar as concerned his legal costs appears to be that the Tribunal did not have regard to the specific circumstances of his claim. However examination of the Tribunal’s decision indicates that this was not the case. At [24] of its decision the Tribunal referred to the applicant’s claim and what appeared to be an argument that MAV & NTV was distinguishable. At [25] the Tribunal went beyond the decision in MAV & NTV, and referred to the decision in Gyselman, in particular the following passages:

61.    In our view this provision refers to the commitments of the parent which were necessary to permit or allow the access to take place but would not, save in quite exceptional cases, refer to the expenses associated with the conducting or enjoying of the access itself. The reference to “high costs” supports the view that it must be something more than normal costs associated with access.

…

64.    The most obvious example is the high costs of travel, as the above cases illustrate, especially the high costs of interstate travel in Australia, whether it is the costs of the children going to the other parent for access periods or the other parent being required to come to the home State to take access.

65.    Although this is the most common case, the provision is not confined to that and it will in an appropriate case include other costs which it is necessary for the non-custodian to incur for access to take place. This may include accommodation if it satisfies those criteria and there may be other costs such as additional expenses caused by the medical condition of the child. Provided that the distinction referred to above is recognized, namely that it does not include the ordinary costs involved in the actual access itself, it is a matter for the Trial Judge to determine whether the facts fall within this ground, whether they amount to “high costs” within sub-section (3), whether they constitute “special circumstances” and whether the requirements of sub-sections (4) and (5) and the objects of the legislation are satisfied.

109    It may be that, in considering the applicant’s case, the Tribunal at [26] could have articulated its reasons with more specificity. However we note, again, the principles adopted by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 that a court exercising a supervisory jurisdiction should not be concerned with looseness in the language or unhappy phrasing of the reasons of an administrative decision-maker; and that the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error. The Tribunal properly followed MAV & NTV, and the Tribunal was clearly of the view that no special circumstances existed warranting a departure from the administrative assessment. We can identify no error in this reasoning.

Conclusion

110    In summary, we are satisfied that the Tribunal made no error in its decision. It is appropriate to dismiss the appeal against the order of the Federal Circuit Court.

111    We will hear the parties as to appropriate costs orders.

Associate:

Dated:    8 February 2019

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

112    The applicant and the first respondent were previously married and are the father and mother respectively of two children. By a decision made on 20 February 2017, the Administrative Appeals Tribunal (the Tribunal) affirmed a decision of the Child Support Registrar (the Registrar) to disallow the father’s objection to the assessment of child support payable by him with respect to the children. As I later explain, the appropriate amounts of child support payments are assessed by applying the statutory formula prescribed by Part 5 of the Child Support (Assessment) Act 1989 (Cth) (the Assessment Act).

113    The father seeks an extension of time and leave to appeal from a decision of the Federal Circuit Court (the FCC) under r 13.10 of the Federal Circuit Court Rules 2001 (Cth) (the FCC Rules) summarily dismissing his “appeal” against the Tribunal’s decision instituted under the pathway provided by s 44AAA of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). The FCC dismissed the appeal on the ground that the notice of appeal failed to identify a question of law. The applications for an extension of time and leave to appeal from the FCC decision were listed before this Court for hearing, together with the appeal.

114    By the amended draft notice of appeal, the father seeks to raise three issues as follows:

(1)    the primary judge erred in summarily dismissing the father’s appeal against the Tribunal’s decision in that his Honour failed to deal with the two substantive points of law raised on his appeal, namely:

(a)    the Tribunal failed to apply the correct test as contemplated by s 71C of the Child Support (Registration and Collection) Act 1988 (Cth) (the Registration Act) and reg 5C of the Child Support (Registration and Collection) Regulations 1988 (Cth) (Registration Regulations) which “contemplate credits that may be applied as Prescribed Non Agency Payments to offset an assessment of child support” (Ground 1(a));

(b)    the Tribunal:

…erred at law in applying the doctrine of Stare Decisis to the single judge decision of Federal Magistrate Sexton (as her Honour was then known) in MAV & NTZ [2005] FMC 261 (31 May 2005), when that decision:

i.    Was not binding on [the primary judge], in any event; and

ii.    Has not been celebrated beyond citation in two cases, namely, Kopler (Change of Assessment) [2009] SSATACSA 24 and Lang v Lang [2011] SSATACSA 23; and

iii.    Is not authority for the proposition that this decision put the matter of legal costs beyond doubt, when assessing a departure application under s117 of the [Assessment Act], in finding specifically that such costs could not be considered (see [26] of the [Tribunal] decision dated 20 February 2017), when such a proposition is contrary to a proper construction of the legislative provisions and contrary to law.

(Ground 1(b)); and

(9)    The primary judge failed to give reasons or to give adequate reasons for summarily dismissing the father’s appeal under r 13.10 of the FCC Rules (Ground 2).

115    By way of elucidation of the issues, I note the following matters.

(1)    I agree with Justices Collier and Rangiah that proposed Ground 1(a) was plainly intended to refer to reg 5D and not to reg 5C of the Registration Regulations for the reasons given by their Honours at [32] of their joint reasons. The parties’ submissions also apparently proceeded upon this assumption.

(2)    I note that proposed Ground 1(b) seeks to challenge the Tribunal’s reliance upon the decision in MAV & NTV [2005] FMCfam 261 (MAV) in finding that legal expenses cannot appropriately be included as a high cost “involved in enabling a parent to spend time with, or communicate with, the child” under subs 117(2)(b)(i) of the Assessment Act for the purpose of departing from the formula assessment of child support under Part 5 of the Assessment Act.

(3)    With respect to proposed Ground 2, the respondents accept that the primary judge gave inadequate reasons for his decision. For reasons I later explain, that concession is correctly made. That notwithstanding, the respondents oppose the grant of an extension of time and leave to appeal including on the grounds that it would be futile to make those orders and there was no arguable error of law made by the Tribunal.

116    For the reasons given below, in my view an extension of time and leave to appeal should be granted limited to Ground 1(b) but the appeal on that ground should be dismissed. The application for an extension of time should otherwise be dismissed.

2.    BACKGROUND

117    I am indebted to Justices Collier and Rangiah for their detailed explanation of the background to the proceedings and I have therefore summarised only the key points below.

2.1    The delegate’s decision on the father’s application for a departure from the formula assessment of child support and Departmental review

118    A child support assessment made by the Child Support Agency of the Department of Human Services (the Department) had been in place for the parties’ children since 8 April 2016. That assessment was based on the mother having a care percentage of 100% for the two children at the time when the father applied to the Department for a departure from the formula assessment on 1 May 2016 under subs 98B(1)(a) of Part 6A of the Assessment Act (Tribunal reasons at [1]). While that initial application was not in evidence before this Court, it was not in issue that the reasons advanced by the father to the Department for a departure from the formula assessment included relevantly that:

(1)    his cost of spending time with the children is more than 5% of his adjusted taxable income by reason, among other things, of the extent of his legal costs expended in seeking to spend more time with his children for the purposes of subs 117(2)(b)(i) of the Assessment Act (so-called Reason 1);

(2)    he had provided money, goods or property for the benefit of the children (so-called Reason 5); and

(3)    the assessment does not correctly reflect the mother’s earning capacity or her income, property or financial resources (so-called Reason 8).

119    With respect to Reason 1, subs 117(2)(b)(i) of the Assessment Act provides that the formula for the administrative assessment of child support may be departed from where, in the special circumstances of the case, the costs of maintaining the child are significantly affected by, amongst other things, the high costs involved in enabling a parent to spend time, or communicate, with the child and it would be just and equitable to depart from the administrative assessment (see further at [163] below).

120    It appears that Reason 5 was withdrawn from the original application for review and as a result was not considered by the delegate of the Child Support Registrar. On 17 May 2016, that delegate decided that Reason 8 had been established, and that it was just and equitable and otherwise proper to change the assessment. As such, the delegate made a determination under subss 98S(1)(g) and 98C(1) of the Assessment Act varying the mother’s adjusted taxable income. The other reasons for departing from the formula assessment raised by the father were rejected.

121    The father objected to that determination under subs 80(1) of the Registration Act: see item 15 of the table in subs 80(1). The delegate’s decision was, in turn, disallowed by a Departmental objections officer on 6 July 2016 under subs 87(1)(b)(i) of the Registration Act with the result that the delegate’s decision remained in effect.

2.2    The father’s application for review by the Tribunal

122    On 30 September 2016, the father lodged an application pursuant to s 89 of the Registration Act for review of the decision of 6 July 2016 with the Tribunal: see item 2 of s 89. That application was heard by the Tribunal on 20 February 2017 in its Social Services and Child Support Division. The father and mother attended the hearing by telephone and gave oral evidence. The Registrar was not represented at the hearing.

123    On the same day, the Tribunal affirmed the decision of the Departmental objections officer.

124    First, the Tribunal considered Reason 1. After referring to the decision of the Full Court of the Family Court in In the Marriage of Gyselman (1991) 103 FLR 156 (Gyselman), the Tribunal found that:

26. It is clear from this that the costs described by [the father] are very unlikely to fall within the area defined by the relevant subparagraph of the [Assessment] Act. In Gyselman the Court clearly had in mind costs associated directly with travel. The reference to medical conditions concerns the cost of travel and accommodation of a person with medical conditions. In MAV… the Federal Magistrate’s [sic] Court put the matter of legal costs beyond doubt, finding specifically that such costs could not be considered.…

27. As the costs identified by [the father] are not relevant the Tribunal finds that there are no special circumstances that would allow a departure from the administrative assessment under subparagraph 117(2)(b)(i) of the Act.

125    Secondly, the father submitted to the Tribunal that, during the period from the parents’ separation in October 2014, he had paid among other things for the mortgage on the family home (in addition to rent for the apartment where he lives) and that these and other expenses incurred following the separation should be totalled up and offset against any child support assessment. He calculated that this would result in him being owed a large amount of money, although he “would accept” a refund of past payments of child support, together with “a waiving of all future child support obligations” (Tribunal reasons at [31]). After noting that certain expenditures raised as a basis for departing from the formula assessment had been raised after the father’s original application for review, the Tribunal rejected the father’s submission in the following passages:

36. With regard to the mortgage repayments, while the children certainly benefit from having secure accommodation, it is not possible to separate the objective of providing them with accommodation from the parties’ other objectives, in particular the protection of the parties’ interest in their major asset. In this regard the Tribunal notes that the mortgage repayments represent a tiny fraction of the parties’ interest in the property… Taking into account the outstanding mortgage balances, even on the most pessimistic of estimates the equity of parties in the property is likely to be more than $1.30 million. The mortgage repayments have the effect of ensuring that this significant financial interests of the parties is preserved.

37. The Tribunal notes that [in late] 2016 the Federal Circuit Court issued consent orders in relation to a property settlement between the parties. The orders were obviously made well after the payments which [the father] asserts make the formula assessment unfair. The Tribunal is not party to the considerations that led to the property settlement, however it is reasonable to think that the settlement was reached in full knowledge of relevant payments made by the parties prior to the settlement. That being the case, there is some danger of a finding under this heading having the effect of undermining the parties’ consent orders concerning the property settlement.

38. At the hearing [the mother] pointed out that from the start of the child support assessment in April 2016 until funds were seized from [the father’s] account by the Department in October 2016, he had never paid any of the assessed child support. She thought it unreasonable that he should claim that these payments were for the benefit of the children when he could have benefitted the children directly by simply paying his assessed child support. The Tribunal observes that were to act as urged by [the father] it could be interpreted as allowing a parent to unilaterally decide what payments constitute child support, effectively to redefine child support to suit their own interests.

39. Taking into account all of the relevant evidence before it the Tribunal finds that there are no special circumstances to allow a departure from the administrative assessment under subparagraph 117(2)(c)(ii) of the Act.

2.3    The decision of the FCC

126    On 28 March 2017, the father instituted an appeal on a question of law in the FCC. The notice of appeal identified the following questions of law:

1.    Providing financial support to children is the ‘principal’ but not the sole objective of the Child Support Assessment Act 1989. There is a reasonable expectation that implementation should adhere to the UN Convention on the Rights of the Child wherever practically possible.

2.    In the “special circumstances” of parental alienation, child support assessments should recognise the high legal costs from seeking court orders to enable access time with the children (through sections 117: 2a.ii, 2b.i and 2b.ia of the Act), especially during extended periods before such matters can be heard in full by the Family or Federal Circuit Court.

3.    It is just and equitable (and otherwise proper) for the court to change the child support assessment because the proper needs of children include being able to see both parents (as each parent expects them to be cared for) and failure to do so would cause extreme hardship in the form of psychological damage to the child and parent. Sections 117: 4b, 4g.iA, 4g.iiA and 6a of the Act apply in this respect and do not limit the children’s “proper needs”, “care” or “extreme hardship” to financial matters. The court should make a departure decision in accordance with subsections 4d, 4e.i and 4g.iiA of the Act.

127    The notice of appeal also identified the following grounds of appeal:

1.    The [Tribunal] erred in excluding mortgage repayments being made for the benefit of the children (Reason 5), which, contrary to the [Tribunal’s] suggestion, can readily be valued and offset against child support obligations from the date of martial separation.

2.    The [Tribunal] erred in its arguments based on prior case law – refer to my affidavit for detail.

128    In his affidavit affirmed on 28 March 2017 and filed with the notice of appeal, the father made submissions among other things that the Tribunal “have misinterpreted the generality of former case law precedent, wrongly claiming that the courts have determined that legal costs can not be considered any situation”, citing the decision in Gyselman. In his affidavit, the father also submitted that the decision in MAV was “very different to my case”. While the parenting case had not yet been considered in court, the father said that his legal costs exceeded $90,000 and had been incurred during the period since separation, including $15,400 for two expert court reports. The father also argued that the judgment in Marriage of Strauss (1998) 143 FLR 121 holding that uninvited payments should not be recognised as credits for child support liability, was not relevant to his case and took issue with the Tribunal’s finding that the value of the mortgage payments to the children was hard to quantify.

129    The father and mother appeared unrepresented in the FCC, while the Registrar was legally represented. On 25 May 2017, the FCC made orders summarily dismissing the proceedings under r 13.10 of the FCC Rules and ordering the father to pay the costs of the Registrar.

2.4    The application for an extension of time and leave to appeal, and the proposed appeal

130    On 3 August 2017, the father applied to this Court for an extension of time within which to seek leave to appeal and for leave to appeal from the FCC decision. The application was accompanied by an affidavit sworn by the father on 1 August 2017 in which he sought to explain the delay in seeking leave to appeal. The application was also accompanied by a draft notice of appeal which was subsequently amended to raise three grounds: see above at [114].

3.    JURISDICTION TO ENTERTAIN THE APPLICATIONS AND ANY APPEAL

131    I agree with Justices Collier and Rangiah at [3]-[6] of their joint reasons that this Court has jurisdiction under subs 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) to entertain the applications for an extension of time and leave to appeal, as well as the substantive appeal. This follows from the fact, as their Honours explain, that the FCC was exercising original jurisdiction under s 44AAA of the AAT Act because the application to the AAT was an application for “AAT first review”: see item 2 of the definition of “AAT first review” in s 89 of the Registration Act. As such, the FCC wrongly described its jurisdiction in the proceeding as conferred by s 99 of the Assessment Act (FCC reasons at [1]), albeit that no party argued that this error was a material one.

4.    CONSIDERATION OF THE APPLICATION FOR AN EXTENSION OF TIME AND LEAVE TO APPEAL

4.1    Relevant principles

132    Leave to appeal from the decision of the FCC is necessary under subs 24(1A) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) because a decision to dismiss an application summarily under r 13.10 of the FCC Rules is interlocutory in nature: Applicant S1494/2003 v Minister for Immigration and Citizenship [2008] FCA 286; (2008) 166 FCR 474 at [15]-[23] (Reeves J). In deciding whether or not to grant leave to appeal, the relevant factors include whether the decision of the FCC:

(1)    is attended by sufficient doubt to warrant reconsideration; and

(2)    if the decision is assumed to be wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused.

(Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399 (the Court).)

133    These considerations are “cumulative” and not satisfied unless both limbs are made out: Rawson Finances Pty Limited v Deputy Commissioner of Taxation [2010] FCAFC 139 at [5] (the Court).

134    In this case, the appellant faces the additional hurdle that he filed the application for leave to appeal out of time and must, therefore, obtain an extension of time within which to seek leave to appeal. The principles relevant to the exercise of discretion to grant an extension of time for an appeal are well established and may be summarised as follows.

(1)    An extension of time will not be granted unless the Court is positively satisfied that it is proper to do so.

(2)    The length of the delay is a relevant factor.

(3)    The applicant must show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend time.

(4)    Any prejudice to the respondent is a material factor militating against the grant of an extension, although the absence of prejudice does not, without more, suffice to justify the grant of an extension of time.

(5)    The merits of the substantive appeal, if leave were granted, are properly to be taken into account.

(See e.g. BAO15 v Minister for Immigration and Border Protection [2016] FCA 214; (2016) 151 ALD 352 at [19]; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348–349 (Wilcox J).)

135    As is apparent, these principles overlap with those applying to the application for leave to appeal. In particular, the question of whether any appeal would have reasonable prospects of success is relevant to both inquiries. In this regard, I recently explained in AYX16 v Minister for Immigration and Border Protection [2017] FCA 1037 that:

9. …it will seldom be in the interests of justice to grant an extension of time where an appeal would have little or no prospects of success, given the additional resources that would impose upon the parties and the Court, and the impact on other Court users: see by analogy in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 (MZABP (FCA)) at [62] (Mortimer J) (approved on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [38]). In turn, in considering the applicant’s prospects of success on an appeal, the Court should not conduct a summary hearing of the appeal but is to “assess ‘the merits’ in a fairly rough and ready way”: Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 at [9]. In other words, the grounds should be considered on their face and examined at a “reasonably impressionistic level”; the Court should not descend into a fuller consideration of the arguments for and against each ground: see MZABP (FCA) at [62].

(emphasis original)

136    While this passage was concerned with the appropriate approach relevant to an application for an extension of time, the same approach is equally relevant to an application for leave to appeal: see e.g. SZQZJ v Minister for Immigration and Citizenship [2012] FCA 867 at [18] (Flick J). In the case of an application for leave to appeal from summary dismissal on the grounds that no arguable question of law was raised, consideration of the prospects of success will be inherent in an examination of whether the decision is attended by sufficient doubt to warrant a grant of leave.

137    Finally, the power exercised by the FCC here in summarily dismissing the appeal was discretionary. As such, on any appeal it would be necessary for the father to demonstrate that the primary judge made an error of the kind identified in House v The King (1936) 55 CLR 499 (House v The King) at 504-505 (Dixon, Evatt and McTiernan JJ) in the exercise of that discretion. Examples include demonstrating that the primary judge acted upon a wrong principle, was guided by extraneous or irrelevant matters, ignored relevant matters, made a mistake of fact, or that the discretionary decision is unreasonable or plainly unjust.

4.2    Should an extension of time and leave to appeal be granted?

4.2.1    The issues

138    The mother submits that an extension of time and leave to appeal should be refused on the grounds that:

(1)    the father did not establish an error of law by the Tribunal in the FCC sufficient to justify the orders sought;

(2)    there are no arguable grounds on which this Court could determine that the Tribunal made an error of law;

(3)    it would be futile to grant an extension of time and leave to appeal;

(4)    no substantial injustice would result from a refusal of an extension of time and leave to appeal;

(5)    there was a very lengthy and unwarranted delay with a degree of prejudice to the mother; and

(6)    it would be contrary to the interests of justice and to the public interest to grant leave.

139    The Registrar also submits that any appeal would lack sufficient prospects of success and that the appeal would be futile. Alternatively, if an extension of time and leave to appeal were granted, the Registrar submits that the appeal should be dismissed.

4.2.2    Delay and prejudice

140    I agree with the reasons given by Justices Collier and Rangiah at [34]-[44] of their joint reasons that the father has given a satisfactory explanation for failing to file the application for leave to appeal within time and that no relevant prejudice has been shown. Ultimately therefore the question is whether any of the proposed grounds has any reasonable prospects of success or it is otherwise not in the interests of justice to grant the extension of time. In this regard, I have reached a different view from Justices Collier and Rangiah with respect to two of the proposed grounds.

4.2.3    Proposed Ground 2, amended notice of appeal

141    It is convenient to start with proposed Ground 2 alleging inadequate reasons by the primary judge.

142    The parties were rightly agreed that the reasons of the primary judge were inadequate. In this regard, the primary judge recognised the need to “take into account the principles and caution in Spencer…”, being the principles applying to an application for summary dismissal under r 13.10 (FCC reasons at [4]; see further below at [157]-[159]). However, the reasons of the primary judge do not demonstrate how, if at all, his Honour engaged with and applied those principles. Rather, after referring to the fact that the Court had warned the father on an earlier occasion that the notice of appeal was required, but had failed, to identify a question of law and that the application for summary dismissal would be entertained if no amended notice of appeal was filed, the operative part of the FCC reasons simply asserts:

4. …I am clearly satisfied that there is no arguable question of law identified in the notice of appeal and affidavit filed by the applicant.

5. I am satisfied that this is an appropriate matter in which to exercise the Court’s powers under r.13.10. …

143    As such, the statement of reasons by the primary judge does no more than state the conclusion which his Honour reached without explaining the basis for that conclusion. As a result, the statement of reasons fails to comply with the requirement to give reasons as an incident of the judicial process: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 353 ALR 641 at [47]-[48] (the Court).

144    Nonetheless I agree with the respondents’ submissions that it would not be in the interests of justice to grant the extension of time with respect to Ground 2. First, the amended draft notice of appeal does not seek orders remitting the matter to the FCC; nor did the appellant in oral submissions suggest that such relief would be sought. However, in the absence of such relief being sought, there is no apparent utility in the proposed ground. Secondly, even if such relief were sought, it is important in line with ss 37M and 37N of the FCA Act that the resolution of the issue of the father’s child support liability is not further delayed, that costs are not unnecessarily expended, and that the dispute is resolved at a cost proportionate to the importance and complexity of the matters in issue. Thirdly, as the Registrar (whose submissions were adopted by the mother) submitted, this Court is readily able to determine whether the judicial review application has any reasonable prospects of success. Finally, as the proposed grounds of judicial review have no reasonable prospects of success for the reasons I later explain, the primary judge correctly dismissed the appellant’s judicial review application despite the inadequacy of his reasons. As such, there would be no utility in remitting the matter to the FCC to determine the summary dismissal application: see e.g. Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 at [32] (the Court). Rather, as counsel for the mother submitted, to do so would risk the litigation “escalating into layers of irrelevant litigation”. Accordingly, I would refuse the application for an extension of time insofar as it relates to Ground 2.

4.2.4    Does Ground 1(a) of the draft amended notice of appeal enjoy any reasonable prospects of success?

145    Ground 1(a) asserts that the Tribunal failed to apply the correct test “as contemplated by” s 71C of the Registration Act and reg 5D of the Registration Regulations in excluding mortgage repayments by the father to offset his child support liability. Section 71C provides that, despite s 30 of the Registration Act which requires that amounts payable under a child support assessment registered under the Act are debts due to the Commonwealth, the Registrar must, where certain criteria are met, credit up to 30% of payments specified in reg 5D by the payer against the payer’s liability to pay child support. This is subject to a broad discretion conferred on the Registrar by s 71D of the Registration Act to refuse to credit an amount under s 71C. The “payer” for the purposes of these provisions is defined as the person liable to make payments under a registrable maintenance liability (being relevantly here the father), while the “payee” (the mother in this case) is the person who would, but for registration of the registrable maintenance liability, be entitled to receive payments under that liability: see the definitions of payer and payee respectively in s 4, Registration Act.

146    To place these provisions in their broader legislative context, Gleeson CJ explained in Luton v Lessels [2002] HCA 13; (2002) 210 CLR 333 at [15] that:

If a child support assessment is registered under the [Registration Act] the debt payable by the liable parent to the eligible carer is extinguished, and replaced by a debt payable by the liable parent to the Commonwealth. The Commonwealth, as necessary, collects the amount owing, and pays it into the Consolidated Revenue Fund. An amount equal to the amount collected is transferred to the Child Support Account. Payments of child support are then made to the carer from the Child Support Account. What is involved is a collection mechanism to facilitate the recovery of child support payments that a parent becomes liable to make under the Assessment Act. It enables the discharge of a personal obligation created by the Assessment Act. A multiplicity of payments may be involved, the amounts of payments are likely to be modest, and many carers would lack the means or the will to undertake private recovery proceedings. The practical advantages of such a scheme are obvious….

147    Subject to a cap, the effect of a decision by the Registrar under s 71C is, therefore, to enable the payer to make payments to the payee or a third party so as to discharge the payer’s obligation otherwise under s 30 of the Registration Act to pay those monies to the Commonwealth where the payments are of a kind specified in reg 5D of the Registration Regulations (described in the amended draft notice of appeal as “Prescribed Non Agency Payments” (PNAPs)) and certain other criteria are met. Those kinds of payments specified by reg 5D for the purposes of subs 71C(1)(b) of the Registration Act include child care costs, school fees, medical and dental fees, and under reg 5D(f), “the payee’s share of repayments on a loan that financed the payee’s home”.

148    Detailed provision is made in Part VII of the Registration Act for the making of objections to a decision under s 71C. Specifically, an objection may be lodged by the payer or payee with the Registrar to refuse to credit an amount under s 71C under item 6 in the table in subs 80(1) of the Registration Act: see also subparagraph (c) of the definition of “appealable refusal decision” in subs 4(1) of the Registration Act. Any such objection must be lodged within 28 days after notice of the decision has been served, subject to any application for an extension of time: subss 81(1), 82 and 83, Registration Act. Upon an objection being lodged, the objection and accompanying documents must be served (relevantly) upon the payee under item 1 of the table in s 85(1) of the Registration Act and the payee may lodge a written notice in opposition to (or in support of) the objection under s 86. Objections must be considered and determined by the Registrar under subss 87(1) of the Registration Act.

149    Finally, Part VIIA of the Registration Act makes provision for the review by the Tribunal of decisions regarding objections made under s 87, including the imposition of time-limits under s 90 on the making of such applications referable to the date on which the decision in relation to the objection was notified.

150    In his submissions, the father submits the primary judge “misstated [his] grounds of appeal: the [father] was challenging the AAT’s failure to treat the mortgage payments as PNAPs”, that is, as payments which should be credited under s 71C of the Registration Act against his liability to pay child support under s 30 of that Act. He further submits that:

In certain circumstances the payment of mortgage expenses can be treated as a non-agency payment. It is submitted that [the father] had an arguable case in his Appeal to the [FCC] that the AAT failed to give proper consideration to the legislative provisions that apply to his assertion that the payment of mortgage expenses ought to have been taken into account.

151    The claim is, with respect, misconceived. As earlier explained, the Tribunal was entertaining an application for review of a decision not to depart from the formula assessment of child support under the Assessment Act pursuant to an application under s 98B of that Act because, among other submissions, it was said that the formula would result in an unjust and inequitable determination of the level of financial support to be provided by him for the children (see above at [118]-[121]). Thus, with respect to the father’s mortgage repayments and certain other payments, the Tribunal explained at [28] that:

In his original application to the Department [the father] sought a departure from the administrative assessment on the ground that he had provided money, goods or property for the benefit of the children. This ground for departure, which is known as reason 5, is found in subparagraph 117(2)(c)(ii) of the [Assessment] Act.

152    The Tribunal also noted that Reason 5 had been withdrawn in the father’s original review application, but that the mortgage repayments had been raised by the father in his objection to that determination and submissions to the Tribunal. The Tribunal in turn considered whether the mortgage repayments provided a ground of departure under subs 117(2)(c)(ii) at [28]-[39] of its reasons and rejected that claim having regard to all of the evidence.

153    As the Registrar submits, there is nothing in the Tribunal’s decision and no other evidence indicating that it was asked to consider, or in fact considered, any application to credit mortgage repayments by the father under s 71C of the Registration Act against the amount which he was otherwise liable to pay by way of child support. In essence, the father’s challenge had been to the level of child support which he was required to pay under the formula assessment, being the subject matter of his application under s 98B of the Assessment Act, as opposed to the manner in which any such liability is met being the subject matter of s 71C of the Registration Act. Indeed, as the Registrar also submits, the Tribunal would have lacked jurisdiction to make a decision as to whether s 71C applied, given that there was no primary decision or objection decision made in relation to an application under s 71C which could have been the subject of review by the Tribunal under s 89 of the Registration Act. It follows that proposed Ground 1(a) of the draft notice of appeal does not enjoy any reasonable prospects of success.

154    In circumstances where Ground 1(a) lacks any merit, it would not be in the interests of justice to grant the extension of time with respect to this ground. I also add that, were it necessary to consider the issue further, I would agree with the reasons of Collier and Rangiah JJ at [76] to [93] as to the other reasons why Ground 1(a) must fail.

4.2.5    Does Ground 1(b) of the draft notice of appeal enjoy any reasonable prospects of success?

155    Proposed Ground 1(b) of the amended notice of appeal stands in a different position from Ground 1(a) because the construction for which the father contends receives express support from the Revised Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth) (the 2005 Explanatory Memorandum) at [987]-[990], upon which he relies: see further below at [182]-[186]. In those circumstances, even though ultimately I do not consider that the ground is reasonably arguable for the purposes of r 13.10(a) of the FCC Rules and s 17A of the Federal Circuit Court of Australia Act 1999 (Cth) (the FCCA Act), I consider that it is in the interests of justice to grant the extension of time and leave to appeal.

5.    DETERMINATION OF THE APPEAL: GROUND 1(B), AMENDED NOTICE OF APPEAL

5.1    Principles governing summary dismissal applications

156    Given the conclusions I have reached on the applications for the extension of time and leave to appeal, the sole question on the appeal is whether the primary judge erred in summarily dismissing the proceeding under r 13.10 of the FCC Rules insofar as it related to the alleged error by the Tribunal in applying MAV.

157    The starting point for a consideration of that question is to identify the proper test for a summary dismissal application under r 13.10 of the FCC Rules. That rule relevantly provides that:

The Court or a Registrar may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court or the Registrar is satisfied that:

(a)    the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or

(b)    the proceeding or claim for relief is frivolous or vexatious; or

(c)    the proceeding or claim for relief is an abuse of the process of the Court.

(emphasis added)

158    Rule 13.10(a) takes its meaning from the enabling Act, namely, the FCCA Act as it exists from time to time, and not as it stood at the time that the FCC Rules were made: subs 13(1)(b), Legislation Act 2003 (Cth). As such, the test for summary dismissal laid down by r 13.10(a) of the FCC Rules is intended to be the same test for summary dismissal as that in s 17A of the FCCA Act. This is the case notwithstanding that r 13.10 of the FCC Rules was enacted before s 17A of the FCCA Act: see also by analogy Shammas v Canberra Institute of Technology [2014] FCA 71 at [51] (Foster J) and Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473 (Przybylowski) at [6] (Perry J) in relation to r 26.01(a) of the Federal Court Rules 2011 and s 31A of the FCA Act which are relevantly in the same terms as r 13.10(a) of the FCC Rules and subs 17A(3) of the FCCA Act. As such, it is not necessary that the proceeding or part of the proceeding be “hopeless” or “bound to fail” for it to have “no reasonable prospect of success” for the purposes of r 13.10: see subs 17A(3), FCCA Act.

159    The principles governing the application of the summary dismissal provision in s 31A of the FCA Act are well established. Section 17A is relevantly in the same terms and was enacted at the same time as s 31A of the FCA Act. As such, the principles relating to s 31A of the FCA Act are equally applicable to s 17A of the FCCA Act. These were recently summarised in Pryzbylowski at [7] along the following lines in keeping with the High Court’s decision in Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 (Spencer):

(1)    The respondent as the moving party bears the onus of persuading the Court that the application has no reasonable prospects of succeeding: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256… at 271 [45] (Reeves J).

(2)    With respect to the scope of s 31A of the FCA Act, French CJ and Gummow J explained in Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 (Spencer) at [22], that the section:

… will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable. It will include the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment. It will include the class of case in the long-standing category of cases which are “frivolous or vexatious or an abuse of process”. The application of s 31A is not, in terms, limited to those categories.

(3)    Section 31A of the FCA Act [set] a lower threshold than the previous test for summary dismissal which required that the claim be “manifestly groundless” or “hopeless”: Spencer at [52]-[53] (Hayne, Crennan, Kiefel and Bell JJ). Nonetheless, the discretion must still be exercised with caution (Spencer at [24] (French CJ and Gummow J) and [60] (Hayne, Crennan, Kiefel and Bell JJ)).

(4)    An assessment of whether a proceeding has no reasonable prospects of success for the purposes of s 31A of the FCA Act involves the making of value judgments in the absence of a full and complete factual matrix and argument, with the result that the provision[s] vest a discretion in the Court: Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; (2009) 178 FCR 401… at [28] (the Court).

160    Finally, the question for this Court is whether the primary judge erred in holding that the application had no reasonable prospects of success and not whether it was open to the primary judge to make that finding. This turns in the present appeal upon a pure question of statutory construction. As such, it is helpful to begin by considering the statutory regime established by the Assessment Act.

5.2    The statutory regime established by the Assessment Act

161    The “principal” object of the Assessment Act is “to ensure that children receive a proper level of financial support from their parents.” (subs 4(1), Assessment Act). The rate of child support payable by a liable parent is generally based on an administrative assessment under Part 5 of the Assessment Act. This requires the application of a statutory formula which takes into account factors such as the number of children, the level of care provided, and the income of each parent.

162    A liable parent or carer entitled to receive child support may apply under s 98B of the Assessment Act to the Registrar for a determination under Part 6A (ss 98A-98JA) to depart from the administrative assessment of child support. The criteria for a determination to depart from the formula assessment are specified in s 98C. Under that section, the Registrar, and the Tribunal ‘standing in the Registrar’s shoes’, must first be satisfied:

(i)    that one, or more than one, of the grounds for departure referred to in subsection (2) exists; and

(ii)    that it would be:

(A)    just and equitable as regards the child, the liable parent, and the carer entitled to child support; and

(B)    otherwise proper;

to make a particular determination under this Part;

163    Subsection 98C(2)(a), in turn, provides that for the purposes of subs 98C(1)(b)(i), the grounds for departure are the same as those set out in subs 117(2) of the Assessment Act. The grounds for departure specified in subs 117(2) relevantly include:

(b)    that, in the special circumstances of the case, the costs of maintaining the child are significantly affected:

(i)    because of high costs involved in enabling a parent to spend time with, or communicate with, the child; or

(ia)    because of special needs of the child; or

(ib)    because of high child care costs in relation to the child; or

(ii)    because the child is being cared for, educated or trained in the manner that was expected by his or her parents;

(c)    that, in the special circumstances of the case, application in relation to the child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child:

(i)    because of the income, earning capacity, property and financial resources of the child; or

(ia)    because of the income, property and financial resources of either parent; or

(ib)    because of the earning capacity of either parent; or

(ii)    because of any payments, and any transfer or settlement of property, made or to be made (whether under this Act, the Family Law Act 1975 or otherwise) by the liable parent to the child, to the carer entitled to child support or to any other person for the benefit of the child.

164    Subsection 117(2B) defines the circumstances in which a parent’s costs can be regarded as “high” for the purposes of subs 117(2)(b)(i) as follows:

(2B)    A parent’s costs involved in enabling the parent to care for a child can only be high for the purposes of subparagraph (2)(a)(iv) or (2)(b)(i) if the costs that have been or will be incurred, during a child support period, total more than 5% of the amount worked out by:

(a)    dividing the parent’s adjusted taxable income for the period by 365; and

(b)    multiplying the quotient by the number of days in the period.

165    In considering the grounds for departure, the court and, by virtue of subs 98C(3), the Registrar or Tribunal as applicable, must have regard to the matters specified in subs 117(4)-(9). Furthermore, each of the grounds in subs 117(2) of the Assessment Act (described by the Tribunal as “reasons”) require that “special circumstances” be established although there is no definition of that phrase in the Assessment Act. However, the Full Court of the Family Court of Australia considered in Gyselman at 164 that to establish special circumstances, the facts of the case must establish something which is “special or out of the ordinary. That is, the intention of the legislature is that the court will not interfere with the administrative formula result in the ordinary run of cases.”

166    Where the decision-maker is satisfied that grounds exist and that it would be just and equitable and otherwise proper to make determination, the Registrar or Tribunal as applicable must make one of the determinations set out in s 98S. Relevantly, these include varying the annual rate of child support payable or a parent’s adjusted taxable income (subs 98S(1)(a) and (g) respectively).

5.3    Did the primary judge err in summarily dismissing the appeal insofar as the appellant raised the correctness of the decision in MAV (Ground 1(b))?

167    The essence of the father’s contention on Ground 1(b) is that the Tribunal erred in finding that the decision in MAV “put the matter of legal costs beyond doubt” and that his legal costs could not therefore be considered as “high costs involved in enabling” him “to spend time with” his children for the purposes of subs 117(2)(b)(i) of the Assessment Act (at [26]).

168    The father’s submissions in support of Ground 1(b) can be summarised as follows:

(1)    the legislation recognises that there are high costs involved in caring for a child, which can include the high costs involved in seeking orders in the Family Court of Australia to establish, modify, or enforce arrangements for contact with children, referring to items 35 and 36 of the 2005 Explanatory Memorandum;

(2)    having regard to the caution expressed by the plurality in Spencer at [25], the primary judge erred in the exercise of his discretion in summarily dismissing the appeal in that he failed to consider that the decision in MAV, which the appellant argued was plainly wrong, may be overruled, qualified or further explained; and

(3)    the appellant’s legal costs of seeking contact with his children ought to have been taken into account by the Tribunal under subs 117(2) of the Assessment Act.

169    Against this, the Registrar contends first that the question of law identified in the notice of appeal before the primary judge “does not identify any question of law relating to MAV & NTV.” While the existence of a question of law is necessary to found the jurisdiction of the Court under s 44 of the AAT Act and, by extension, s 44AAA of that Act, the failure to state a question of law does not go to the existence of the Court’s jurisdiction: rather, the question of whether a question of law is raised must be ascertained as a matter of substance: Haritos v Federal Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315 at [62](4) and (6) and [94] (the Court).

170    Applying those principles, while it is true that the notice of appeal does not in terms refer to MAV, I do not agree that it fails to identify a question of law relating to MAV. The question of whether “… child support assessments should recognise the high legal costs from seeking court orders to enable access time with the children (through sections 117: 2a.ii., 2b.i and 2b.ia of the Act)” necessarily raises an issue as to the correctness or applicability of the decision in MAV. Further, as the Registrar accepted, the father’s affidavit (which is referred to in Ground 2 of the FCC notice of appeal) expressly refers to MAV. Nor, contrary to the Registrar’s submissions, would I have regarded the fact that the affidavit referred only to distinguishing MAV as necessarily precluding the father’s primary argument that MAV was wrongly decided. However, it is unnecessary to decide the issues raised as to the deficiencies in the FCC notice of appeal and Ground 1(b) of the amended draft notice of appeal in this Court because I agree with the respondents’ alternative submission that any argument that MAV was wrongly decided or is distinguishable would not, in any event, have had any reasonable prospects of success applying the test in Spencer. In short, the construction adopted in that decision was plainly correct.

171    The relevant principles of construction are not in issue. As McHugh, Gummow, Kirby and Hayne JJ held in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (Project Blue Sky) at 381:

69. The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos [(1955) 92 CLR 390 at 397], Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus the process of construction must always begin by examining the context of the provision that is being construed.

70. A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions.

172    First, read in isolation, it is possible that the words “costs involved in enabling a parent to spend time with… the child” in subs 117(2)(b)(i) of the Assessment Act might be read as including the legal costs incurred by a parent in obtaining court orders authorising or permitting the parent to spend time with the child, as the father contends: see the dictionary definitions of “enable” identified in Gyselman at 168.

173    However, read in context in line with the principles in Project Blue Sky, that construction is unarguable. Subsection 117(2)(b) is concerned with the impact of high costs referable to the (ongoing) needs of the child, including the need to spend time with the parent, upon “the costs of maintaining the child” (the needs based construction). Thus, as the Full Court of the Family Court explained in Gyselman at 166, “s 117(2)(b) recognises [that] access increases the total costs of maintaining children” (emphasis added) and for this reason permits expenses of this character to be taken into account where such costs are “something more than normal costs associated with access” (Gyselman at 168). Examples of the kinds of costs to which the section may potentially apply therefore include the high costs of travel especially interstate and accommodation: Gyselman at 168-169. Legal costs incurred in seeking contact orders from the Family Court in the first place, however, are manifestly not costs referable to the maintenance of the child in this sense.

174    Secondly, the needs based construction is supported by the other kinds of costs identified in subs 117(2)(b), such as the special needs of the child, high child care costs, and high costs of educating and caring for the child. All of these costs are directed towards the maintenance of the child. It is also consistent with the fact that separate provision is made for taking into account the financial position of the liable parent in determining whether a departure from the statutory formula for assessing child support is warranted. Specifically, the grounds of departure include special circumstances where applying that formula would result in the liable parent providing an unjust and inequitable level of financial support for the child, including because of either parent’s income, earning capacity, property, and financial resources (see subs 117(2)(c)).

175    Thirdly, the needs based construction of subs 117(2)(b)(i) best gives effect to the purpose and language of s 117 as a whole on the basis that the provision is intended to give effect to harmonious goals. It has the result that the grounds for departure specified in subs 117(2) require a consideration of the needs of the children, the costs of meeting those needs, and the parents’ respective capacities to contribute in equitable shares towards the costs of meeting those needs. That construction accords with the “primary duty” of both parents “to maintain the child” under s 3 of the Assessment Act, and promotes the objects of the Assessment Act in s 4. As earlier mentioned, the principal object of the Act is spelt out in subs 4(1), namely to ensure that children receive a proper level of financial support from their parents. Subsection 4(2) further provides that:

(2)    Particular objects of this Act include ensuring:

(a)    that 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)    that 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)    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; and

(d)    that children share in changes in the standard of living of both their parents, whether or not they are living with both or either of them; and

(e)    that Australia is in a position to give effect to its obligations under international agreements or arrangements relating to maintenance obligations arising from family relationship, parentage or marriage.

(emphasis added)

176    The needs based construction which I have adopted also furthers the additional particular objects of Part 7, Div 4, in which s 117 is located, namely:

114.    …ensuring:

(a)    that children have their proper needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of both of their parents; and

(b)    that parents share equitably in the support of their children.

177    By contrast, the father’s construction would shift the assessment away from considering his capacity to provide financial support and “the costs of the children”, to focus instead upon costs expended by him in the contact proceeding in the Family Court, with the intent that those costs relieve him of any duty to contribute towards the children’s maintenance including indefinitely into the future by paying child support. As such, the father’s construction does not promote the objects of the Act and the Division, and cannot therefore be preferred: see s 15AA, Acts Interpretation Act 1901 (Cth) (the Acts Interpretation Act).

178    Fourthly, the father’s construction ignores the temporal nature of any child support departure assessment. In this regard, subs 117(2B) (quoted above at [164]) requires the father to establish the ground for departure under subs 117(2)(b)(i) in relation to each of the child support periods for which a departure order is sought (being a period defined by s 7A), as well as the other criteria under subs 117(1) including those relating to his financial capacity in each child support period: Hides v Hatton (1997) FLC 92-759 at [84,355] (the Court); MAV at [36]-[37] (Sexton FM). This statutorily prescribed approach can be seen to further the objects in ss 4 and 114 of the Assessment Act, ensuring that any departure is and remains just, equitable, and proper, and otherwise meets the criteria in subs 117(1) for each such period.

179    In the fifth place, to allow legal costs to be taken into account would undermine subs 117(1) of the Family Law Act 1975 (Cth) (the Family Law Act), which provides that the general rule is that each party to proceedings under that Act shall bear their own costs. This is subject to the power to award costs under (relevantly) subs (2) where “in proceedings under this Act, the court is of [the] [sic] opinion that there are circumstances that justify it in doing so...”. Subsection (2A) (as in force when the Assessment Act was enacted and today) requires the court in considering what, if any, order should be made under subs (2), to consider various matters including the conduct of parties to the proceedings and settlement offers.

180    On the father’s construction it would be necessary for the Registrar in determining a child support departure application to assess the reasonableness of the parties’ conduct in any contact proceedings under the Family Law Act having regard therefore to the kinds of matters prescribed by subs 117(2A) of that Act. That construction is so unlikely as to be untenable. It would mean, as Sexton FM held in MAV at [43]-[44] in rejecting this construction, that the Registrar (or the Tribunal) in the context of a child support departure application would be required to go behind court orders made in contact proceedings, or behind the statutorily prescribed general rule as to costs, when no reason has been found in the proper forum (expressly or by implication) to depart from it. Alternatively, it would require, as here, that the Registrar (or Tribunal) pre-empt the position as to costs to be determined by the court in the contact proceedings. Not only on either scenario is the Registrar and the Tribunal on appeal from the Registrar completely unequipped to undertake such an assessment, having not been charged with conduct of the contact proceedings: if legal costs are taken into account in a decision to depart from the administrative assessment this may potentially undermine any ultimate determination of costs by the court in the contact proceedings.

181    It follows for these reasons that MAV was plainly correct in holding that legal costs in contact proceedings cannot be taken into account under subs 117(2)(b)(i) of the Assessment Act, and that the decision in MAV cannot relevantly be distinguished on the ground that final costs orders in the contact proceedings between the father and mother have apparently not yet been made.

182    Against this, in what he identified as the high point of his argument, the father relied upon the 2005 Explanatory Memorandum. In relation to subs 117(2)(a)(iv), the 2005 Explanatory Memorandum observed that:

987. Item 35 repeals and replaces subparagraph 117(2)(a)(iv) of the Child Support Act which provides that a court may depart from the formula assessment prescribed in the Act, where a parent has high costs enabling the parent to have contact with a child. This item substitutes the word ‘contact’with ‘care for’. This amendment updates a terminology to remove the reference to contact.

988. The costs of a parent caring for the child are intended to be included in the court’s consideration. These can include travel, telephone costs and accommodating the child during periods of care. These costs are not intended to be limited and could possibly include legal costs of seeking orders to enable a parent to maintain their relationship with the child. However, this is not intended to apply to costs incurred when seeking an order as to where the child is to live.

(emphasis added)

183    The next item, item 36, explained that subs 117(2)(b)(i) was repealed so as to update the terminology in the same way and further explained that:

990. The possible ‘high costs’ of caring for a child are described in item 35 of this Schedule, above.

184    As such, the author of the 2005 Explanatory Memorandum also apparently envisaged that legal costs incurred in seeking orders enabling the parent to maintain contact with the child could constitute a ground of departure under subs 117(2)(b)(i) for the purposes of subs 117(1) of the Assessment Act.

185    It is true that regard may be had to extrinsic material under subs 15AB(1)(a) of the Acts Interpretation Act to confirm that the meaning of a provision is its ordinary meaning having regard to its statutory context and the purpose or objects of the Act. Alternatively, regard may be had to extrinsic material under subs 15AB(1)(b) to determine the meaning of a provision where it is ambiguous or obscure or the ordinary meaning would lead an absurd or unreasonable construction. However, as French CJ, Gummow, Hayne, Crennan and Kiefel JJ emphasised in Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252:

31. … it is necessary to keep in mind that when it is said the legislative “intention” is to be ascertained, “what is involved is the ‘intention manifested’ by the legislation”. Statements as to legislative intention made in explanatory memoranda or by Ministers, however clear or emphatic, cannot overcome the need to carefully consider the words of the statute to ascertain its meaning.

186    In the present case, when read in the context of the Act and having regard to the objects of the Act, the ordinary meaning of subs 117(2)(b)(i) is clear in my view for the reasons already given and does not give rise to any absurd or unreasonable result. As such, insofar as the 2005 Explanatory Memorandum suggests that legal costs might constitute high costs involved in enabling a parent to maintain a child for the purposes of subs 117(2)(b)(i), it is contrary to the intention manifested by the legislation itself.

6.    CONCLUSION

187    For these reasons, I differ from Justices Collier and Rangiah in that I would have dismissed the applications for an extension of time and leave to appeal save with respect to Ground 1(b) of the amended draft notice of appeal. Further while I would grant the extension of time and leave to appeal with respect to Ground 1(b), I also agree with their Honours that Ground 1(b) has not been established. The appeal must therefore be dismissed with costs reserved so as to allow the parties the opportunity, if so advised, to be heard on the issue with the benefit of the Court’s reasons.

Associate:

Dated:    8 February 2019