FEDERAL COURT OF AUSTRALIA

P v Child Support Registrar [2013] FCA 1312

THE COURT ORDERS THAT:

1.     The appeal be dismissed.

2.    The applicant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

Introduction and background

1    The applicant, Mr P, has been involved in a protracted dispute with the first respondent, the Child Support Registrar (the Registrar), concerning the level of financial support payable by Mr P to his former partner Ms M (the second respondent) in relation into their child, Master C. The amount of child support payable by Mr P relating to Master C was assessed by the Registrar to be $6 per annum (or 50 cents per month). This appeal from the Administrative Appeals Tribunal (the Tribunal) concerns a determination by the Registrar relevant to that assessment.

2    Part of the complex formula for assessing the amount of child support payable by a parent for a child under the Child Support (Assessment) Act 1999 (Cth) (the Act) involves the determination by the Registrar of a parent’s “percentage of care” for a child. Under s 50(3) of the Act, the percentage of care must correspond with the “actual care” the Registrar is satisfied that the parent had during the relevant “care period”. Section 54A of the Act provides a method of working out the actual care of a child based on the number of nights that the Registrar is satisfied that the child was in the care of the parent during the care period.

3    The crux of the dispute between the parties concerns the determination of Mr P’s percentage of care in relation to Master C and in particular the determination of care during periods of time Master C resides as a boarder at St Joseph’s College in Hunters Hill. The crucial question is how s 50 and s 54A apply, and how percentage of care is to be determined, in circumstances where a child is not residing with either parent for part of a care period.

4    On 12 August 2011, the Registrar determined that from 6 June 2011 Mr P’s percentage of care for Master C was 50%. Mr P objected to that determination. Mr P’s objection was disallowed, in the first instance, by an Objections Officer of the Child Support Agency (Agency) on 21 October 2011. Mr P then sought a review of that decision in the Social Security Appeals Tribunal (SSAT). That application was largely unsuccessful. On 23 January 2012, the SSAT determined that Mr P’s percentage of care for Master C was 50%, but varied the date from which that determination was to operate to 29 July 2011.

5    Undeterred by the decision of the SSAT, Mr P applied to the Tribunal for a review of the decision of the SSAT. On 28 June 2012, the Tribunal affirmed the SSAT’s determination of Mr P’s percentage of care, but varied the decision so that the determination was to take effect from 6 June 2011 (the first Tribunal decision). In determining the percentage of care, the Tribunal applied s 54A of the Act and set about working out the number of nights that Master C was in the care of Mr P and Ms M during the relevant period, including in respect of the time that Master C was residing at St Joseph’s College. The Tribunal found that on the nights when Master C was not residing at St Joseph’s College, he spent an equal number of nights in the care of the Mr P and Ms M. The result was that Master C’s care in these periods was shared equally by his parents. This outcome was largely dictated by the terms of consent orders made by the Federal Magistrates Court on 6 June 2011 (the consent orders) in proceedings under the Family Law Act 1975 (Cth) (the Family Law Act). In relation to the nights when Master C was residing in St Joseph’s College, the Tribunal found that “the nights Master C spends at boarding school can be considered to be shared between the parents”. The Tribunal accordingly found that Mr P’s percentage of care for Master C for the entire care period was 50%.

6    Mr P then brought an appeal to this Court from the first Tribunal decision pursuant to s44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). That appeal was successful.

7    On 29 November 2012, Buchanan J found that the Tribunal erred in law in the way it approached the determination of Mr P’s percentage of care: see P v Child Support Registrar [2012] FCA 1398 (first appeal judgment). His Honour held that the Tribunal’s finding that Master C’s care during the period of time that he was at boarding school was shared equally between the parents failed to “observe the strictures in s 54A(3) of the Act”, which provides that for the purposes of s 54A “a child cannot be in the care of more than one person at the same time.” Buchanan J questioned, but did not decide, whether it was necessary to apply s 54A of the Act to work out actual care in respect of the nights that Master C resided at St Joseph’s College. His Honour remitted the matter to the Tribunal to be further determined according to law.

8    Upon remittal, the matter was heard by a differently constituted Tribunal on 1 May 2013. The Tribunal concluded that Mr P and Ms M had a percentage of care of 50%, but varied the decision of the SSAT to alter the effective date of the determination to 6 June 2011. It is from this decision of the Tribunal that Mr P brings this second appeal pursuant to s 44 of the AAT Act. Ms M, who was joined as a party in the proceedings in the Tribunal, has filed a submitting appearance in these proceedings.

9    Mr P’s amended notice of appeal specifies ten questions of law and fifteen grounds of appeal that are said, in one way or another, to relate to the questions of law. Two of the questions of law (and associated grounds) relate to the proper construction of s 50 and s 54A of the Act. Two questions (and associated grounds) involve a contention by Mr P that the Tribunal denied him procedural fairness in various ways. The balance of the questions of law and associated grounds of appeal advanced by Mr P, whilst couched in terms that might suggest that questions or errors of law are involved, in fact involve challenges to various factual findings made by the Tribunal.

10    For the reasons that follow, Mr P has failed to demonstrate that the Tribunal erred in law in its consideration and determination of his review application. The appeal accordingly must be dismissed with costs.

RELEVANT STATUTORY FRAMEWORK

11    Part 5 of the Act provides for the administrative assessment of child support. It includes a number of formulas used for assessing the rate of child support payable by a parent for a child for a day in a child support period. One of the steps in the formulas involves working out each parent’s percentage of care for the child for the day in accordance with Subdivision B of Division 4 of Part 5 of the Act. It is common ground that the relevant provision in subdivision B for determining the percentage of care in this matter is s 50. Section 50 of the Act provides as follows:

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

(1)    This section applies if:

(a)    either of the following applies:

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

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

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

(b)    the Registrar:

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

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

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

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

12    It can be seen that the expression “care period” is defined in s 50(1) as being the period during which the Registrar is satisfied that a responsible person for the child has had, or is likely to have, a pattern of care for the child. Section 5 of the Act provides that a responsible person for a child means a parent or non-parent carer of the child.

13    The expression “actual care” used in s 50(3) is not defined in the Act. However, s 54A of the Act provides as follows:

54A    Working out actual care, and extent of care, of a child

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

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

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

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

TRIBUNAL PROCEEDING - FACTS, ISSUES AND CONTENTIONS

14    Up until at least the second Tribunal hearing, it was common ground between the parties that on those nights during the relevant period that Master C was not residing at St Joseph’s College, Master C divided his time equally between and Mr P and Ms M. It also appeared to be agreed that on those nights when Master C resided with either Mr P or Ms M, incidental expenses and responsibilities were attended to by whichever parent Master C was residing with at the time. The equal division of nights of residency and financial responsibility during Master C’s non-boarding school periods appeared to flow from the terms of the consent orders. There appeared to be no dispute that, on the whole, the consent orders had been complied with, at least in respect of matters relevant to the determination of care. As noted by Buchanan J, this was the basis upon which the parties approached the matter in the SSAT, the first AAT hearing and on appeal before Buchanan J: see first appeal judgment at [4], [5], [7], [11], [16] and [17].

15    Given that it appeared to be agreed between the parties that the care of Master C during the periods he was not at boarding school was effectively equally shared between Mr P and Ms M, the focus of most of the evidence and argument in the second Tribunal hearing was on the periods that Master C resided at St Joseph’s College.

16    In this appeal however, Mr P has argued, in various different ways, that it was not open to the Tribunal to proceed on this basis. It is therefore necessary to outline some of the evidence relating to the care of Master C during the non-boarding school periods.

17    The consent orders made by the Federal Magistrates Court on 6 June 2011 relevantly provide as follows:

(2)    That the Husband (father) and the Wife (mother) have equal shared parental responsibility for … (“the children”) including but not limited to:

    (i)    The school or schools that each child is to attend

    (ii)    The religious instruction and upbringing of each child

    (iii)    The medical treatment that each child is to receive

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

(3)    That the parent, with whom the children are living with at the time, is to be responsible for the day to day decisions concerning the care, welfare and development of the children.

(4)    That during school terms the children … live with the father each alternate week from after school Monday until the commencement of school the following Monday, and that the children otherwise live with the mother, such order to commence with the father on the first Monday of the school term, being Term 3, 2011.

(5)    That during school holidays the children spend one half of each school holidays with each of their parents as agreed between the Husband and the Wife in writing but failing agreement for the first half with the father in holidays commencing in odd numbered years and for the second half with the father in holidays commencing in even numbered years, such time to commence in the June/July 2011 school holidays.

…

(8)    That whilst ever any of the children are attending boarding school the time that they spend with each of their parents pursuant to the orders above will be regulated by the requirements of the school.

(9)    That the children spend from 9.00am until 6.00pm Father’s Day of each and every year with father, and 9.00am until 6.00pm Mother’s Day of each and every year with the mother, in the event that those days are not days that the children would spend with that parent.

…

(13)    That the Husband and/or the Husband’s mother [A P] will be solely responsible for the payment of all and any school fees and expenditure at St Joseph’s College Hunters Hill and any such payments will not be claimed by the Husband as a non-agency child support payments.

(14)    That each of the parents use their best endeavours to ensure that the children are transported to and from all extracurricular activities they are involved in during the time that the children are living with that parent.

(15)    That each of the parents ensure that the children are adequately supplied with all sporting equipment, uniforms and footwear, school uniforms, school footwear, school books and equipment that they will require during such time as they are living with the other parent. That neither parent will reasonably refuse to return such items with the children. That each parent ensures that all of the children’s clothing, uniform and other equipment is returned with the children, where reasonably possible, washed.

18    It appears that both Mr P and Ms M filed applications in the Federal Magistrates Court during 2012 alleging that the other had contravened these orders. The nature of the competing allegations of contravention is unclear. In his Statement of Facts, Issues and Contentions (SFIC) filed in the second Tribunal hearing, Mr P stated:

42.    The Applicant and the Second Respondent have both filed contraventions in the Federal Magistrates Court of Australia over the last 12 months. On 7 December 2012, after hearing the Applicant’s contravention application the parties reached agreement. The agreement resulted in FM Kemp making further orders.

    5.    The father’s contravention application filed 14 February 2012 is withdrawn and dismissed.

    6.    The mother’s contravention application filed 9 August 2012 is withdrawn and dismissed.

19    Mr P did not say in his evidence before the Tribunal that there had been any relevant non-compliance with the orders. During cross examination of Ms M, however, the following exchange occurred:

10    SENIOR MEMBER: I will ask her the question, are the consent orders being complied with? --- On my behalf, yes, they are.

MR [P]: Can I redirect, or further clarify?

15    SENIOR MEMBER: Can you what?

MR [P]: She said “on her behalf”. The clear intent behind that is that I’m not. Am I complying with the consent orders?--- I don’t believe you are.

20    There you go. A statement that both parties agree that these are being complied with cannot be upheld? --- No, excuse me, I said that I was complying with them. I said that I do not believe you were.

25    And I agree with you.

20    No further evidence was given in relation to this issue. It would appear that the Tribunal did not consider that Ms M’s suggestion that Mr P had in some way not complied with the court orders was of any relevance to the issues for determination by the Tribunal.

21    In relation to the question of how Master C’s non-boarding school nights were divided between the parties, it is clear that Mr P (consistent with the position he had taken in the SSAT, the first Tribunal hearing and the first appeal proceedings) agreed that Master C’s non-boarding school time was in all material respects equally divided between Mr P and Ms M. In his SFIC, Mr P stated (at [56]:

There is no dispute that [Master C] spends 201 nights at St Joseph’s College. This represents approximately 55 per cent of the nights of the year where he is required to have accommodation outside the either parental home. It is also agreed that the remaining 164 nights are divided equally between the Applicant and the Second Respondent, so that between them [Master C] spends approximately 45 per cent of the nights of the year with one or other of his parents.

(error in original)

22    Mr P’s SFIC then sets out an extract from paragraph [7] of the judgment of Buchanan J in the first appeal judgment. Mr P also refers in paragraphs [82] and [83] of the SFIC to the fact that the non-boarding school nights are divided equally between himself and Ms M.

23    It appears, however, that at the second Tribunal hearing Mr P sought to resile from this position, at least to the extent that he contended that there were some limited occasions when Master C, apparently by agreement between the parents, may have spent some time during holidays on school camps or trips, rather than with the parent he would otherwise be residing with. This suggestion had its genesis in the evidence of Ms M. During cross-examination by the Registrar’s solicitor, Ms M agreed with the proposition that the nights that Master C did not spend at boarding school were divided equally between her and Mr P. Mr P then sought to cross-examine Ms M about a particular ski trip in 2012 that Master C attended. Ms M’s evidence was that she agreed that Master C could attend that ski trip, so to that extent, Master C did not spend 50% of those particular school holidays with Ms M. Ms M then gave the following evidence in answer to further questioning by the Registrar’s solicitor:

35    MR GOULIADATIS:    Ms M, leaving aside special circumstances such as overseas holidays ---

40    MR [P]:        Rowing camp.

MR GOULIADATIS:---camp, those sorts of things, is it your understanding that (a), under the consent orders, time outside of boarding school is to be spent equally between you and Mr [P], and (b), that’s what actually occurs? --- Yes.

24    Mr P did, however, ultimately concede that Master C’s non-boarding school time was split equally between his parents. In Mr P’s closing submissions, the following exchange occurred:

MR [P]: I will concede, begrudgingly, to make your task easier 50/50 care outside of school holidays. However, it is clear from the evidence that you have already heard and confirmed by Ms M that care outside of school holidays because of trips overseas, school camps is definitely not 50/50.

…

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

25    In relation to the periods spent by Master C at boarding school, much of the evidence and argument before the Tribunal was directed to the question of who paid Master C’s school fees and associated expenses at St Joseph’s College. Relatively little attention was given in the evidence to any non-financial responsibility for Master C’s welfare or wellbeing whilst he was residing at St Joseph’s College. That appears to be consistent with the position apparently taken by Mr P before the SSAT, the first Tribunal and the first appeal proceedings, to the effect that any non-financial care or responsibility for Master C whilst he was residing at St Joseph’s College was shared equally by his parents.

26    That position in turn appears to be consistent with the terms of the consent orders. Whilst the consent orders expressly provide for the responsibility for payment of Master C’s school fees and expenses, there is no express provision for non-financial day-to-day decisions, care or responsibility for Master C’s welfare or wellbeing whilst he is residing at St Joseph’s College.

27    To the extent that the orders touch on non-financial matters whilst Master C is at St Joseph’s College at all, it appears to be implicit that the responsibility was to be shared equally. Order 2 of the consent orders specifies that Mr P and Ms M have “equal shared parental responsibility” for Master C, including in respect of matters that touch on his schooling and issues that would undoubtedly arise in the course of his schooling, such as religious instruction, medical treatment and other sporting activity. “Shared parental responsibility” is a concept defined under the Family Law Act in terms that suggest it relates to decisions concerning “a major long term issue” (see s 65DAC of the Family Law Act). It would, however, nonetheless be open to regard this order as indicating a general intention that all decision making and responsibility for Master C whilst he was residing at St Joseph’s College was generally to be shared equally by his parents.

28    Likewise, orders 14 and 15 of the consent orders, which deal with “extracurricular activities” and school uniforms, footwear and books, appear to be premised on a shared responsibility for all such school related matters. That is so even though these orders allocate responsibility in accordance with who Master C was living with at the time.

29    Such evidence as there was on this topic before the Tribunal suggested that the parents had a joint or shared responsibility for Master C’s welfare or wellbeing (in a non-financial sense) whilst he resided at St Joseph’s College. That was certainly the tenor of the evidence in Ms Ms’s affidavit evidence (Exhibit 2R2). In her oral evidence, Ms M was questioned about what would occur if Master C became ill whilst he was at school. Her evidence was to the effect that the school policy was to contact both parents. If the illness required Master C to be picked up from school, the responsibility for that would depend on “whoever’s week it is” (T148/30-35). Ms M’s evidence was that both Mr P and Ms M were entitled to be consulted if questions about the wellbeing of Master C arose whilst he was at boarding school.

30    In relation to financial responsibility for Master C’s residence at St Joseph College, it was common ground that Ms M had no responsibility for paying Master C’s school fees or expenses. Order 13 of the consent orders make it clear that the responsibility for making such payments fell upon Mr P “and/or” his mother, Ms A P. Nonetheless, there was fairly voluminous evidence before the Tribunal in relation to the actual payment of school fees. That evidence appears to have been directed to the question whether payments that had been made in the past were in fact made by Mr P, or by Ms A P, and if the latter, whether there was a loan arrangement between Mr P and Ms A P that obliged Mr P to repay any amounts that had been paid by Ms A P.

31    It was Mr P’s case before the Tribunal that, whilst the consent orders provided that he and his mother were responsible for payment of the school fees, as far as the school was concerned, Mr P was solely responsible for the payment of the fees. He gave evidence to that effect. That evidence was collaborated by documentary evidence. There is no evidence to suggest that Ms A P had any contractual arrangements with St Joseph’s in relation to the fees.

32    The evidence did indicate, however, that the fees were in fact paid by Ms A P. Whilst in her affidavit Ms A P stated that she never paid Master C’s school fees, documentary evidence clearly indicated that she had paid fees and other expenses to St Joseph’s College by cash, cheque or credit card on a number of occasions. She acknowledged as much when cross-examined in relation to these documents. Her evidence included the following:

MS [A P]: Okay. Just so it gets through to you, [Mr P] has bills. He hasn’t the money to pay for them so he asks his mum for a loan. His mum gives him a loan and sometimes it’s inconvenient for him to go and pay the bills so I am the one to go and pay the bills in his / for him, but it’s still my money loaned to him, even though his name is on the invoice. Is that clear?

33    It was readily apparent from the evidence before the Tribunal that the reason that Ms A P paid the fees was that Mr P did not have the financial capacity or resources to pay them. The evidence of Mr P and Ms A P, however, was that both Mr P and Ms A P regarded such payments as amounting to, or giving rise to, a loan from Ms A P to Mr P. Each time Ms A P made a payment towards Master C’s school fees, it was, according to their evidence, added to a running balance of money owed by Mr P to Ms A P. Mr P tendered a document prepared by him and Ms A P for the purposes of the Tribunal proceedings that purported to record that Mr P owed Ms A P $108,185.75 as at 17 April 2013. This outstanding loan balance was made up of payments referable to St Joseph’s College school fees and expenses.

34    Ms A P was cross-examined at some length about the nature of the supposed loan arrangement with Mr P. In particular, she was questioned about whether she expected Mr P to repay the amounts she claimed he owed her, and whether she would ever take steps to recover the amounts outstanding or enforce the loan in any way. Because Mr P challenges the Tribunal’s findings in relation to the payments made by Ms A P and the nature of the arrangements between Mr P and Ms A P in relation to them, it is necessary to refer to some of Ms A P’s evidence. Her evidence included the following:

30    Yes. Yes have also said that the reason you’re providing this financial assistance is because your son [Mr P] is in financial difficulties at this time?--- At that time, yes.

At that time?---Yes.

35    What time?---Whenever that was written.

Written?---Yes.

In your view, is [Mr P] still in financial difficulties? ---Yes.

40    And you have said that you would not require payment until such time as your son [Mr P] is in a more stable financial position; that’s correct? --- Yes, as any other mother would do.

45    But isn’t it possible, [Ms A P], that he is not going to be in a more stable financial position any day soon?

MR [P]: Sorry, how are we looking to the future, Senior Member?

WITNESS: Sorry what difference does that make to him paying me back? I’m his mum, I’m entitled to give him money.

…

15    SENIOR MEMBER: If he is unable ever to repay you will you --- ? ---No, that will be on my death. On my death.

Please don’t speak over me, Madam. Will you forgive the debt? --- No. He owes me that money.

20    MR [P]:        Is that what you wanted?

WITNESS: I’m Scottish. It’s my money and I am investing in my grandchildren.

…

20    MR GOULIADITIS: Its absolutely ordinary, Mrs [P], for mothers to lend their children money, but it doesn’t necessarily give rise to an obligation to pay back, an obligation that can be enforced in a Court. You spoke about – you said before that you were treating these payments as an investment in your grandchildren? --- Yes, my grandchildren’s education.

25    And that you would - the money would be paid back if and when Mr [P] got back on his feet? --- When he was able to. I didn’t say when he got back on his feet. When he is able to.

If he doesn’t, do you ---? --- Who cares?

30    Do you agree that you - thank you. That - do you agree that you would not take legal action to pursue those debts? --- Okay. I will say it as clear as I can. If [Mr P] goes that way he is and he’s paying me back dribs and drabs when he can, that suits me fine, and if I die before he has paid all the debts, how am I going to care about it? Who am I going to sue?

35    So in effect this is an advance on his inheritance? ---- He might not get an inheritance the way he’s going, or whoever - none of my kids might not get an inheritance, and that’s my business.

…

25    MR [P]: Is the loan being repaid as we speak?--- Yes. Dribs and drabs, yes.

30    Dribs and drabs. So in the event that I was to get financial, what would you do if I didn’t hand over the money to you? Would you take me to court and get that money? --- Too true, I would.

So the question that Mr Gouliaditis put about would you enforce that legal obligation, you believe you would?--- Of course I would. You know me better than that.

35    It is readily apparent that the Registrar disputed that any arrangements between Mr P and Ms A P could properly be said to amount to a loan. It must have been apparent to Mr P that this was an important contested issue that the Tribunal would have to decide.

TRIBUNAL’S DECISION AND REASONS

36    In determining Mr P’s percentage of care for the relevant care period, the Tribunal focused on the periods that Master C resided at boarding school. That was because the parties had approached the matter on the basis that the care of Master C for periods when he was not at boarding school was divided equally between Mr P and Ms M. Outside of boarding school, Master C spent an equal number of nights with Mr P and Ms M. The Tribunal noted that Mr P had sought to resile from this concession, but that he had renewed it in his closing submissions.

37    The Tribunal considered that the first question it had to decide was whether, in working out the “actual care” provided to a child for the purposes of satisfying itself, pursuant to s 50(3), that the percentage of care corresponded with actual care, it was necessary to apply the method of working out actual care specified in s 54A. Given the focus on the periods when Master C resided at St Joseph’s College, this was an important issue. If it was necessary to apply s 54A to work out the actual care provided to Master C by Mr P whilst he was at boarding school, it would be necessary to try to work out the number of nights, if any during those periods that Master C was in the care of Mr P, and those nights, if any, that he was in the care of Ms M. If it was necessary to apply s 54A, it would not be open to the Tribunal to find that Master C was in the care of both Mr P and Ms M for any of the nights he was at boarding school. Such a finding would be precluded by s 54A(3). This was the error of law that Buchanan J held was made in the first Tribunal decision.

38    The Tribunal concluded that on the proper construction of s 50 and s 54A of the Act it was not mandatory or necessary to apply s 54A in all cases when working out actual care. The Tribunal noted in particular that the term “actual care” is not defined in the Act, that the language employed in both in s 54A(1) and (2) was that actual care “may”, as opposed to “must”, be worked out in a way provided for in the section and that s 54A(4) provided that s 54A did not limit, relevantly, s 50. The Tribunal also had regard to certain paragraphs of the Agency’s law and policy guide for the Act (the Guide). The Tribunal concluded (at [17]) that if “the circumstances justified, a decision maker is not constrained by the Act or by policy to determine percentage of care by reference to nights.”

39    Having found that it was not required to apply s 54A when determining actual care, the Tribunal next considered whether it should, in the particular circumstances of the case, apply that section in working out “actual care” during the periods when Master C was residing at St Joseph’s College. It concluded that s 54A should not be applied to the boarding school periods. It found (at [42]) that it would be “nonsensical to make an assessment by reference to nights of care [in] relation to nights of the year when Master C is at boarding school” and (at [44]) that “it is neither necessary nor appropriate to attribute specific periods that Master C spends at St Joseph’s College to either parent.”

40    The Tribunal next turned its attention to working out care without reference to s 54A. The Tribunal found that there were a number of factors that should generally be considered when determining the level of care a person provides to a child. It referred to the following passage from the decision of Hughes FM in Polec and Staker [2011] FMCA fam 959 (Polec) at [56]:

In my view, in determining whether and to what extent a person has care of a child for the purpose of the Child Support (Assessment) Act 1989 and the Child Support (Registration and Collection) Act 1988, it is necessary to consider the following:

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

(b)    To what extent does the person make arrangements for others to meet the needs of the child?

(c)    To what extent does the person pay for the costs of meeting the needs of the child?

(d)    To what extent does the person otherwise provide financial support for the child?

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

(f)    To what extent is the child financially independent or financially supported from another source?

41    The Tribunal also referred to a paragraph of the Guide which provided as follows (at [24]):

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

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

    arrangements for others to meet the needs of the child.

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

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

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

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

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

42    The Tribunal noted (at [24]) that the questions posed in the Guide were similar to those referred to in Polec, but that more emphasis was given in the Guide to “the notion of the responsibility and decision making.”

43    In relation to the particular circumstances of Master C whilst he was at boarding school, the Tribunal placed considerable weight on the consent orders. The Tribunal found that the consent orders were being complied with, despite the suggestion by Ms M in her evidence that Mr P was not complying with the orders in some unspecified way. It found (at [22]) that the effect of the orders was to place Mr P and Ms M “on an equal footing with respect to responsibility for [Master C’s] wellbeing while he is at boarding school” and (at [25]) on “an equal footing in most of the respects set out in the guide and in Polec” other than in respect of the payment of school fees. The Tribunal noted (at [23]) that Mr P’s contention was that the payment of the school fees was a determinative factor in the assessment of the percentage of care in the matter.

44    In relation to the payment of school fees, the Tribunal was not satisfied that Mr P “in fact” paid for the costs of Master C attending boarding school. In this regard the Tribunal noted that under the consent orders Mr P was not solely responsible for paying the fees. He shared that responsibility with Ms A P.

45    The Tribunal found that Mr P did not have the capacity to pay the fees and that, for that reason, they were paid by Ms A P. The Tribunal doubted that the arrangements between Ms A P and Mr P in relation to the payment of the fees could, given the terms of the arrangement, properly be considered to be a loan. Even if they could, the Tribunal was not satisfied that this would constitute payment by Mr P of the cost of Master C attending boarding school, particularly given Ms A P’s evidence that she was “largely” prepared to forgive the debt.

46    Having regard to its factual findings concerning both the joint and shared responsibility for Master C’s wellbeing whilst at boarding school, and that Mr P did not pay the school fees, the Tribunal concluded (at [41]) that “P and M remain on an equal footing in respect of C’s care whilst he is at boarding school.” Given the fact that Master C’s care outside boarding school was similarly shared equally, the Tribunal concluded that Mr P’s percentage of care was 50% during the relevant care period. The Tribunal made it clear that this determination was not arrived at by applying the method of working out actual care under s 54A.

JURISDICTION – QUESTIONS OF LAW

47    These proceedings have been brought pursuant to s 44 of the AAT Act. Whilst s 44 refers to the right of a party to a proceeding before the Tribunal to “appeal” to this court, the proceedings are in fact in the Court’s original jurisdiction.

48    Section 44 makes it plain that the jurisdiction is only invoked “on a question of law.” A question of law is the very subject matter of the appeal: TNT Skypak International (Aust) Pty Limited v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178. Because it is a question of the Court’s jurisdiction, the Court needs to be satisfied that there is a question of law raised, even in the absence of a challenge by a respondent: HP Mercantile Pty Limited v Federal Commissioner of Taxation (2005) 143 FCR 553 at 570–575; Federal Commissioner of Taxation v Crown Insurance Services Ltd (2012) 207 FCR 247 at [10].

49    The importance of formulating what is truly a question of law in a notice initiating an appeal under s 44 of the AAT Act has been repeatedly highlighted and emphasised by this Court: Australian Telecommunications Corp v Lambroglou (1990) 12 AAR 515 (Lambroglou) at 524; Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55 (Birdseye); Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Limited (2003) 133 FCR 290 (Saxby Bridge) at 300-302; Comcare v Etheridge (2006) 149 FCR 522 at 526-527; Kowalski v Repatriation Commission [2011] FCAFC 43 at [16]; Rana v Repatriation Commission (2011) 126 ALD 1(Rana) at [11]. The question of law should be stated with precision as a pure question of law: Birdseye at [17]-[18]; Saxby Bridge at [46]-[47]. A question which commences with “whether the Tribunal erred in law” begs the question of law. No formulation such as “erred in law” can turn a question into a question of law if it is not such a question: Lambroglou at 527; Hartnet v Migration Agents Registration Authority [2004] FCA 50 at [50]; Baker v Telstra Corporation Ltd [2009] FCA 531.

50    The questions of law are to be stated separately from the grounds relied upon in support of the orders sought in the notice of appeal. That is clear from r 33.12(2) of the Federal Court Rules 2011 (the Rules), which provides as follows:

33.12 (2)    The notice of appeal must state:

(a)    the part of the decision the applicant appeals from or contends should be varied; and

(b)    the precise question or questions of law to be raised on the appeal; and

(c)    any findings of fact that the Court is asked to make; and

(d)    the relief sought instead of the decision appealed from, or the variation of the decision that is sought; and

(e)    briefly but specifically, the grounds relied on in support of the relief or variation sought.

51    The specification of the grounds relied upon in support of the orders sought should expose the links between the question of law, the circumstances of the particular case and the orders sought on the appeal: Birdseye at [17]-[18]. It is not legitimate to call in aid the grounds specified in the notice to read down the questions of law stated in the notice to what are truly questions of law. If the order sought is that the decision of the Tribunal be set aside, the grounds in support of that order should assume the resolution of the specified question of law in favour of the applicant and indicate, in a summary way, why that resolution requires the decision of the Tribunal to be set aside: Lambroglou at 524. Grounds drawn up in that way could not elucidate a question of law.

52    Having regard to these principles, the amended notice of appeal filed by Mr P in this matter is manifestly deficient and defective. The full text of the questions and grounds in the notice of appeal are set out in the schedule attached to these reasons. The notice pleads ten supposed questions of law which do not, on any view, precisely state pure questions of law. The drafting is prolix and most of the questions contain more than one question, include, at best, mixed questions of fact and law, or questions of fact dressed up as questions of law, often mixed with argument and contentious, and often incorrect, characterisations of the evidence and findings made by the Tribunal. The situation is worsened by the grounds, which are neither brief nor specific. The grounds are also difficult at times to relate to the questions of law. Nor do they provide any link between the stated questions of law, the circumstances of the case and the orders sought.

53    A question which is inelegantly drafted may nonetheless be a question of law which attracts the jurisdiction of this Court if its purport is tolerably clear having regard to the context in which it appears: Ergon Energy Corp Ltd v Commissioner of Taxation (2006) 153 FCR 551 at [51]. In an appropriate case the Court itself may be “prepared to frame questions in order to found its jurisdiction”: Secretary Department of Education, Employment and Workplace Relations v Ergin [2010] FCA 1438 [11]; 119 ALD 155 at 159; Rana at [16] Goodricke v Comcare [2011] FCA 694 at [14]-[22]; 122 ALD 546 at 549-550. An appropriate case may arise where, as here, an applicant is unrepresented and where it is possible to discern a question which, if properly framed, could found the jurisdiction of the Court: Hoe v Manningham City Council [2011] VSC 37 at [6]-[7]; Kolya v Tax Practitioners Board [2012] FCA 215 (Kolya) at [8].

54    It is possible to discern or extract some questions of law from the pleaded questions of law and grounds in Mr P’s notice of appeal, considered together with his written and oral submissions. Those questions of law, reframed so as to properly attract the jurisdiction of this Court, are set out below. I propose to address these questions, together with Mr P’s contentions and submissions that the Tribunal erred in ways associated or related to these questions, rather than addressing the questions framed in Mr P’s notice of appeal. The references in italics in the parentheses at the end of each question are references to the questions and grounds in Mr P’s notice of appeal that provide the basis for the reformulated question.

(1)    In determining whether the percentage of care determined by the Registrar under s 50(2) corresponds with the actual care of the child that the Registrar is satisfied the responsible person has had, is it mandatory for the Registrar to work out actual care by employing the method set out in s 54A of the Act? (questions 1 and 2 and grounds 1, 2 and 3 in Mr P’s notice of appeal)

(2)    Does the constraint or prohibition specified in subsection 54A(3) of the Act only apply where the Registrar works out actual care in accordance with s 54A(1) or (2)? (questions 1 and 2 and grounds 1, 2 and 3 in Mr P’s notice of appeal).

(3)    Was there evidence or material before the Tribunal capable of supporting, or were there logical grounds capable of supporting, the following findings of fact made by the Tribunal:

    (a)     the consent orders were being complied with;

(b)    Mr P and Ms M were on an equal footing in respect of Master C’s care whilst he was at boarding school;

(c)    Mr P did not pay for the costs of Master C’s boarding at St Joseph’s College?

(question 3 and 6 and grounds 4, 5, 6 and 11 of Mr P’s notice of appeal)

(4)    Was the fact that order 2 of the consent orders provided that Mr P and Ms M “have equal shared parental reasonability for” Master C an irrelevant consideration that the Tribunal was bound to ignore in determining the care of Master C? (question 4 and ground 7 of Mr P’s notice of appeal)

(5)    Did the Tribunal comply with its statutory duty under s 43(2) of the AAT Act by providing adequate reasons in relation to various findings made by it? (question 5 and grounds 8, 9 and 10 of Mr P’s notice of appeal)

(6)    Was the Tribunal required to, and if so did it fail to, have regard to the financial arrangements for the period Master C spent at boarding school as the “paramount consideration” in determining Mr P’s percentage of care? (question 7 and grounds 10 and 12 of Mr P’s notice of appeal)

(7)    Did the Tribunal fail to afford procedural fairness to Mr P by:

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

(b)    preventing the cross examination of Ms M in relation to her evidence that Mr P was not complying with the consent orders?

(questions 8, 9 and grounds 13 and 14 of Mr P’s notice of appeal)

(8)    Did the Tribunal fail to exercise its jurisdiction to conduct a review of the decision of the SSAT by limiting its consideration to the period that Master C spent at boarding school? (question 10 and ground 15 of Mr P’s notice of appeal)

Consideration

Questions 1 and 2

(1)    In determining whether the percentage of care determined by the Registrar under s 50(2) corresponds with the actual care of the child that the Registrar is satisfied the responsible person has had, is it mandatory for the Registrar to work out the actual care by employing the method set out in s 54A of the Act?

(2)    Does the constraint or prohibition specified in subsection 54A(3) of the Act only apply where the Registrar works out actual care in accordance with s 54A(1) or (2)?

55    Questions 1 and 2 concern the proper construction of s 50 and s 54A of the Act.

56    It may readily be accepted, that the Tribunal (standing in the shoes of the Registrar), having determined Mr P’s percentage of care under s 50(2), was obliged by s 50(3) to ensure that the percentage “corresponds with the actual care of the child that the Registrar is satisfied that the responsible person has had, or is likely to have during the care period.” Mr P’s submission is that to work out “actual care” for the purposes of the comparison mandated by subsection (3), it is mandatory for the Tribunal to work out actual care in the way stipulated in s 54A of the Act. The decision-maker is not permitted to work out actual care in any other way.

57    It is not entirely clear whether Mr P put this argument to the Tribunal. In any event, the Tribunal found that it was not mandatory for it to apply s 54A in working out actual care. The Tribunal’s finding in this regard was correct.

58    There are two textual indications that a decision maker is not required to work out “actual care” in accordance with s 54A. The first textual indication is the use of the word “may” as opposed to “must” or “shall”, in s 54A(1) and (2). Section 33(2A) of the Acts Interpretation Act 1901 (Cth) provides as follows:

(2A) Meaning of may

Where an Act assented to after the commencement of this subsection provides that a person, court or body may do a particular act or thing, and the word “may” is used, the act or thing may be done at the discretion of the person, court or body.

59    This provision puts in statutory form the ordinary rule of construction in relation to the word “may” when appearing in statutes: Derisi v Vaughan [1983] 3 NSWLR 17 at 19. A provision that uses the word “may” is prima facie permissive; the “authorities clearly show that it lies on those who assert that the word ‘may’ has a compulsory meaning to show, as a matter of construction of the Act, taken as a whole, that the word was intended to have such a meaning”: Ex parte Gleeson [1907] VLR 368 at 373; Ward v Williams (1955) 92 CLR 496 at 505.

60    There is nothing in the text of s 54A, and no relevant contextual considerations, that would displace this prima facie position. Indeed, the other relevant textual indication appears to confirm that “may” is intended to be permissive. Section 54A(4) provides that “this section does not limit Section 50, 51, 52 or 54.” The precise operation of this subsection is somewhat obscure given that it is difficult to see how s 54A could be seen to limit any of those sections. It does tend to suggest, however, that a decision maker, when determining the percentage of care under s 50(2), is not limited in any way by s 54A. A requirement to apply s 54A when working out “actual care” for the purposes of s 50(3) could perhaps be considered to be a limitation.

61    The extrinsic material also tends to confirm the ordinary meaning of “may” when used in s 54A. The Explanatory Memorandum to the (Child Support and Family Assistance Legislation Amendment (Budget and Other Measures) Bill 2010) provides the following explanation of s54A.

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

62    This explanation makes it fairly clear that the intention behind s 54A was to provide guidance in determining actual care, but that if the methodology in s 54A, which focuses on nights in care, is not appropriate in the particular circumstances of a case to work out actual care, it is open to the Registrar to employ a different methodology.

63    That is plainly the position here. When Master C was at boarding school he was not staying overnight with either parent. It is difficult to see how s 54A could provide any guidance or assistance in determining actual care in these circumstances.

64    Mr P complains that in construing s 54A the Tribunal impermissibly had regard to a “carefully crafted” extract of the Guide. That appears to be a reference to the fact that the extract set out in paragraph [16] of the Tribunal’s reasons does not include the example given in the Guide when dealing with this topic. The example given in the Guide is as follows: “where parents are separated but are living in the same house, [the Agency] will determine each parents percentage of care based upon the care that is actually occurring for the child.” Mr P submits that this example is distinguishable from the facts and circumstances of this case. Even if that is so, it provides no support for the contention Mr P advances in relation to the construction of s 54A. Nor does it point to any error of law on the part of the Tribunal.

65    The Guide is of limited, if any, real assistance in construing the Act and s 54A specifically. The Guide is not extrinsic material to which regard can properly be had to construe the legislation. It is not akin to an explanatory memorandum or second reading speech to which regard may properly be had to ascertain the legislative intention. Whilst it may be that an administrative decision maker should ordinarily apply policies that are set out in administrative guides (see Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 590-591) that is different to using an administrative guide to construe legislation.

66    It should be added that some of the content of the Guide is, in any event, unhelpful. Indeed some parts of the Guide might on one view lead a decision maker into error. For example, it is difficult to see how the sentence in the Guide that reads “if [the Agency] is not able to determine a care percentage based upon the actual care [the Agency] will generally accept that the parents share the care of their children equally” comfortably sits with s 50(3) of the Act. Section 50(3) requires the Registrar to attempt to work out “actual care” in every case so as to ensure that the percentage of care corresponds with actual care. It would not appear to permit the Registrar, in difficult cases, to avoid determining actual care and instead simply accept that care is shared equally.

67    Nevertheless, no question of law or error of law is revealed by the Tribunal’s use of the Guide to assist in the construction of ss 50 and 54A of the Act.

68    Mr P contends that in finding that Master C’s “care during the time he spends in St Joseph’s College [is] … shared equally by his parents”, the Tribunal made the same error that Buchanan J found was made in the first Tribunal decision; namely making a finding contrary to s 54A(3). Mr P also contends that in so finding, the Tribunal effectively ignored the period whilst Master C was at boarding school.

69    There is a simple answer to these contentions. It is clear from the terms of s 54A(3) that the limitation that “a child cannot be in the care of more than one person at the same time” applies “for the purposes of” s 54A. It follows that if the decision maker does not apply s 54A to work out “actual care”, as was the case here, the constraint or prohibition in subsection 54A(3) does not apply.

70    The Tribunal made it tolerably clear that because it was not working out actual care using the method in s 54A, it was not attributing specific nights during the period of time Master C spent at boarding school to either Mr P or Ms M. Nor was it attributing nights of care during this period to both Mr P and Ms M. The Tribunal did not find that on any night whilst Master C was at boarding school he was in the care of both Mr P and Ms M. The Tribunal’s finding was that Mr P and Ms M provided the same level of actual care to Master C during these periods, and accordingly a percentage of care of 50% was appropriate.

71    The Tribunal could, perhaps have expressed its findings in this regards in clearer terms. However, the Court in proceedings such as these should not approach the Tribunal’s reasons minutely and with an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. There was no error of law involved in the Tribunal’s finding that Master C’s care whilst at boarding school was shared by Mr P and Ms M.

Question 3

Was there evidence or material before the Tribunal capable of supporting, or were there logical grounds capable of supporting, the following findings of fact made by the Tribunal:

(a)     the consent orders were being complied with;

(b)    Mr P and Ms M were on an equal footing in respect of Master C’s care whilst he was at boarding school;

(c)    Mr P did not pay for the costs of Master C’s boarding at St Joseph’s College?

72    Mr P challenges three findings of fact made by the Tribunal in various ways said to constitute errors of law, not fact. He contends that the findings were illogical, irrational or not open on the evidence. These contentions have no merit and must be rejected.

73    The Tribunal is not a court and is not bound by the rules of evidence: s 33(1) AAT Act. It must, however, proceed by reference to “rationally probative evidence” rather than mere “suspicion or speculation”: Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666 at 685. If there was evidence capable of supporting a finding made by the Tribunal, the making of that finding does not give rise to any error of law: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 326. The question whether the evidence could support a finding of fact involves a question of law. The question whether a Tribunal should have made a particular finding a fact, on the other hand, involves a question of fact. In Rawson Finances Pty Limited v Commissioner of Taxation [2013] FCAFC 26, Jagot J (with whom Nicholas J agreed) put the distinction between those two questions in the followings terms (at [84]):

The distinction between evidence or material which could support a factual finding and evidence or material which should or should not have supported such a finding is fundamental to the exercise of jurisdiction which is limited to questions of law. When courts refer to there being “no probative” evidence to support a finding or a finding not being “reasonably open” or “open” on the evidence (as in Australian Broadcasting Tribunal v Bond at 359-360) or it being necessary that a finding be based on “some probative material or logical grounds” and that a finding not be “completely arbitrary” (as in Australian Broadcasting Tribunal v Bond at 366 and 367, Kostas v HIA Insurance Services Pty Ltd at [16], Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [145] and Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALD 224; [2004] HCA 32 at [38]) the courts are not inviting consideration of whether a finding should or should not have been made. They are considering the anterior question whether the evidence reasonably admitted that making of the finding; that is, whether the evidence could support the finding. Hence, if there is no probative evidence of a fact and no logical grounds to support the fact, the finding of that fact will involve error of law. But where there is some probative evidence of a fact and some logical ground to support the fact, the finding of that fact will not involve error of law. The formula “some probative material or logical grounds” does not convert questions of fact into questions of law.

74    Whilst couched in terms that suggest that the evidence before the Tribunal could not support the findings, when analysed Mr P’s contentions amount to no more than arguments for why the Tribunal should not have made the findings. His submissions to the effect that the findings were irrational or illogical amount to no more than an emphatic way of disagreeing with the findings: Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 (2003) 198 ALR 59 at [5]. No error of law is involved.

75    The Tribunal’s findings that the consent orders were being complied with needs to be considered in context. First, there was no issue about compliance with the consent orders at the first Tribunal hearing or before Buchanan J: first Tribunal decision at [19]; first appeal judgment at [17]. Second, in Mr P’s SFIC, Mr P did not contend that the consent orders were not being complied with by himself or Ms M. Mr P did point out that there was a technical dichotomy between orders 4 and 7 in relation to where Master C would reside (SFIC at [40]-[41]). That dichotomy was, however, irrelevant given Mr P’s concession that outside the time he spent at boarding school Master C’s time was spent equally between his parents. Mr P’s SFIC also referred to the fact that Mr P and Ms M had both filed applications in the Federal Magistrates Court alleging that there had been contraventions of the consent orders. Those applications, however, had been withdrawn (SFIC at [42]).

76    Mr P did not contend in his evidence that Ms M was not complying with the orders. Nor did Mr P say that he was not complying with the orders. The affidavit evidence of Ms M did not suggest any non-compliance with the consent orders. There was evidence that previous applications in the Federal Magistrates Court alleging contravention of the consent orders had been withdrawn by consent. The only indication of non-compliance was the suggestion by Ms M, when cross-examined by Mr P, that Mr P was not complying with the orders in some unspecified way. Yet, as the Tribunal points out in its reasons, the allegation of non-compliance made by Ms M was not a matter that was the subject of any further evidence or submissions. Given the way that Mr P put his case before the Tribunal, that is not surprising. Mr P’s case before the Tribunal rested almost entirely on the proposition that because he had paid the boarding school fees, he cared for Master C during the periods that Master C was at boarding school. Any alleged non-compliance by him with the consent orders did not bear in any way on that issue.

77    In these circumstances it was open to the Tribunal to conclude on the evidence before it that the consent orders were being complied with. There was no evidence of any contravention relevant to the issues the Tribunal was required to decide. The Tribunal’s finding in this respect was not in any way irrational or illogical.

78    The Tribunal’s finding that Mr P and Ms M were on an equal footing in respect of Master C’s care must likewise be considered in the context of the way Mr P conducted his case before the Tribunal. He conceded that the care of Master C during non-boarding school periods was split equally between himself and Ms M. The evidence before the Tribunal was capable of supporting such a finding in any event. The fact that there was evidence that on certain special occasions, such as a particular skiing trip, Master C may not have spent all his time during school holidays with either parent did not compel a different finding.

79    In relation to care of Master C whilst he was at boarding school, as already indicated Mr P’s case before the Tribunal rested primarily, if not, entirely on his contention that he was responsible for paying, and that he did pay, the boarding school fees. He contended, in effect, that all aspects of Master C’s wellbeing when he was at boarding school were looked after by the school. Because he paid the fees, it followed that the care provided by the school should be attributed or allocated to him. In this context, Mr P did not contend in either his SFIC or his evidence before the Tribunal that the non-financial parental responsibilities of himself and Ms M differed in any relevant respect in the periods when Master C was at St Joseph’s College. That was consistent with the way he had put his case before the first Tribunal and in the first appeal proceedings and consistent with the findings of both the first Tribunal and Buchanan J.

80    It was also consistent with the evidence before the Tribunal. The consent orders were capable of supporting such a finding, as was Ms M’s evidence in her affidavit, as well as her oral evidence about, for example, what would happen if Master C became ill whilst he was at school.

81    The only issue, then, is whether it was open on the evidence for the Tribunal to find that this situation was altered by the payment of the school fees. Mr P’s case was that he, not Ms A P, paid the fees. That was rejected by the Tribunal. The Tribunal was not satisfied, on the evidence, that Mr P did pay the fees. It found that Mr P did not have the financial capacity to pay the fees (a fact that was not in dispute), that the fees were in fact paid by Ms A P, that the arrangements between Ms A P and Mr P in relation to these payments could not, on the evidence, properly be considered as a loan, and that even if they could, this did not amount to Mr P paying the fees.

82    These findings were open on the evidence and were not in any relevance sense irrational or illogical. The Tribunal was not required to accept Mr P and Ms A P’s characterisation of these payments as a loan. The evidence of Mr P and Ms A P concerning the arrangements was obviously disputed and challenged by the Registrar and Ms M. It was open to the Tribunal, on the evidence (including Ms A P’s evidence) to find that Ms A P made the payments as an “investment” in her grandchildren’s education and was never likely to take steps to recover them from Mr P. As a result, it was open to the Tribunal to conclude that the payments by Ms A P could not properly be characterised as payments by Mr P. The fact that a different decision-maker may have found otherwise is not to the point. Nor is it to the point for Mr P to advance reasons why the Tribunal should have found otherwise. These are questions of fact, not law.

83    Once it is accepted, that there was some evidence capable of supporting these three findings by the Tribunal Mr P’s challenge to these findings on the basis that they are errors of law, or raise questions of law, must fail.

Question 4

Was the fact that order 2 of the consent orders provided that Mr P and Ms M “have equal shared parental reasonability for” Master C an irrelevant consideration that the Tribunal was bound to ignore in determining the care of Master C?

84    The applicant contends, in effect, that the Tribunal erred in law because it had regard to an irrelevant consideration, namely that under the consent orders Mr P and Ms M had “equal shared parental responsibility” for Master C. To make out this contention, Mr P must demonstrate that, as a matter of statutory construction, “equal shared parental responsibility” was a matter that the Tribunal was forbidden to take into account in determining the percentage of care pursuant to s 50 of the Act: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 (Peko-Wallsend). Mr P also contends that the Tribunal impermissibly equated “shared parental responsibility” with actual care or shared care and therefore erred in law. Whichever way the argument is put, it has no substance.

85    Mr P’s contentions and arguments concerning equal shared parental responsibility rely on a mischaracterisation of the Tribunal’s reasons. The Tribunal did not equate equal shared parental responsibility, as provided for in order 2 of the consent orders, with care or shared care. Nor was it in any sense impermissible, irrational or illogical for the Tribunal to have regard to order 2 as one of a number of considerations that led it to conclude that Mr P and Ms M were on an “equal footing” in relation to Master C’s wellbeing or care whilst he was at boarding school.

86    This aspect of Mr P’s challenge to the Tribunal’s decision appears to focus on paragraphs 22 and 42 of the Tribunal’s reasons. At paragraph 22, the Tribunal makes a finding that the consent orders placed Mr P and Ms M on “an equal footing with respect to responsibility for Master C’s wellbeing whilst he is at boarding school” (emphasis added). At paragraph 42, the Tribunal states that during the period when Master C is at boarding school “his parents shared parental responsibility for him pursuant to” the consent orders (emphasis added).

87    When these two paragraphs of the Tribunal’s reasons are read fairly and in the context of the Tribunal’s reasons as a whole, it is clear that the Tribunal was not saying that order 2 of the consent orders alone compelled a finding that Mr P and Ms M had equal care, or shared care, in respect of Master C whilst he was at boarding school. Nor was it equating equal shared parental responsibility with equal or shared care. Rather, the Tribunal was simply saying that the overall tenor of the consent orders, read in their entirety, supported the finding that the orders did not discriminate between Mr P and Ms M in relation to responsibility for Master C’s wellbeing whilst he was at boarding school. This was consistent with findings made by Buchanan J at [6] and [29] in the first appeal judgment, referred to in the Tribunal’s reasons at [20] and [21]. The fact that Mr P and Ms M shared responsibility for Master C’s wellbeing during boarding school in turn supported a finding that their care of Master C during that period was equal. It was not possible to allocate specific nights of care of Master C during the boarding school periods to either Mr P or Ms M. To that extent the care of Master C was “shared equally” during that period.

88    It should also be noted in this context that when the Tribunal used the word “responsibility” in its reasons, it does not appear to have necessarily been using it in the sense of “parental responsibility” as defined in the Family Law Act. For example, in paragraph 22 of its reasons, when referring to responsibility for Master C’s wellbeing whilst he was at St Joseph’s College, the Tribunal appears to be referring to day-to-day matters concerning Master C’s wellbeing, not just long term issues. Nor does it appear that the Tribunal’s finding that care was shared equally by Mr P and Ms M was intended to be a finding of “shared care’ as defined in s 5(3) of the Act, though a finding that each parent had a percentage of 50% would fall within that definition.

89    It may readily be accepted that “shared parental responsibility” as defined in the Family Law Act is different to “care” under the Act. Shared parental responsibility under the Family Law Act relates to decisions concerning major long term issues in relation to a child, including issues about the care, welfare and development of the child of a long term nature (see s 65DAC of the Family Law Act). “Care” under the Act is not defined, though having regard to the ordinary meaning of the word “care” and the statutory context, including the objectives of the Act, it is clearly more concerned with the day-to-day needs and welfare of a child.

90    That is not to say, however, that the fact that parents have equal shared parental responsibilities may not be a relevant consideration when determining the percentage of care under the Act. There is certainly no basis for concluding that it is a matter that the decision maker, be it the Registrar or Tribunal, was bound to disregard or was forbidden from taking into account in the Peko-Wallsend sense. It was open to the Tribunal to have regard to order 2 of the consent orders, along with the other orders and other evidence, in determining the percentage of care. There is nothing irrational or illogical in the Tribunal’s reasoning or findings in that regard. Its consideration of the equal shared parental responsibility of Mr P and Ms M in this context involved no legal error.

Question 5

Did the Tribunal comply with its statutory duty under s 43(2) of the AAT Act by providing adequate reasons in relation to various findings made by it?

91    Mr P contends that the Tribunal failed to provide adequate reasons in respect of three matters; first in respect of its findings that Mr P did not pay Master C’s fees at St Joseph’s College; second, in relation to its decision to depart from the Agency’s policies set out in the Guide; and third, in relation to why the original 86% determination was incorrect.

92    Each of these contentions is rejected. There is no substance in Mr P’s contention that the Tribunal failed to provide to provide adequate reasons.

93    The adequacy of the Tribunal’s reasons is a question of law reviewable in an appeal under s 44 of the AAT Act: Civil Aviation Safety Authority v Central Aviation Pty Ltd (2009) 253 ALR 263 at [26]-[37]. That said, when analysed, Mr P’s attack on the Tribunal’s reasons amounts, at best, to a challenge to certain factual findings made by the Tribunal. His arguments also mischaracterise the Tribunal’s reasons and are based on a misconception of the decision that was being reviewed by the Tribunal.

94    In relation to the payment of school fees, reference has already been made to the Tribunal’s findings in that regard and the fact that those findings were open on the evidence. The Tribunal provided detailed reasons for why it found that the school fees were in fact paid by Ms A P, why the arrangements between Mr P and Ms A P could not properly be characterised as a loan and why, even if they could, it was still not satisfied that the circumstances amounted to payment of the fees by Mr P. Those reasons are spelt out in paragraphs [28]-[41] of the Tribunal’s reasons. Whilst Mr P may not agree with these reasons, that does not make them inadequate or mean that the Tribunal failed to comply with its statutory duty to provide reasons.

95    It should also be noted in this context that Mr P’s contention that the Tribunal dismissed the “unrefuted evidence” that the applicant was solely responsible for payment of the school fees mischaracterises the evidence and the Tribunal’s findings. Under the consent orders, the fees were to be paid by Mr P “and/or” Ms A P. There was evidence that, as between the school and Mr P, it was understood that Mr P, not Ms M, would be responsible for the fees. That evidence was not dismissed by the Tribunal. What the Tribunal did find was that this evidence (a letter from St Joseph’s College that was provided in response to a request by Mr P) was not evidence of who was actually paying the fees.

96    In relation to the Guide, it is not entirely clear in what respect Mr P contends that the Tribunal departed from any administrative policy contained in the Guide. Nothing in the Tribunal’s reasons suggests that it considered that it was departing from anything said in the Guide or any policy of the Agency.

97    The Tribunal referred to parts of the Guide as supporting its construction of sections 50 and 54A of the Act to the effect that it was discretionary, not mandatory, to work out actual care using the methodology in s 54A. For the reasons already given, the Tribunal’s construction of those provisions was correct. The Guide in any event does not comprise extrinsic material for the purposes of construing the Act. Notwithstanding this, given that the Tribunal’s construction of the provision was correct, the Tribunal’s resort to the Guide did not amount to an error of law that would justify relief under s 44 of the AAT Act.

98    More to the point, the Tribunal did not depart from anything said in the Guide in relation to this issue. Whilst the wording in the Guide is not entirely clear or unambiguous, if anything it did tend to support the construction arrived at by the Tribunal.

99    Nor did the Tribunal depart from the Guide in any other material respect. At paragraph 24 of its reasons, the Tribunal refers to the list of relevant factors in determining care that appear in the Guide at 2.2.1. It is implicit, if not explicit, in the Tribunal’s reasons that it accepted this list of considerations. It certainly did not depart from them in any material way.

100    It follows that there was no occasion for the Tribunal to provide reasons for departing from the Guide.

101    Mr P’s contention that the Tribunal failed to provide adequate reasons explaining why the existing 86% care determination was incorrect is misconceived. Mr P’s reference to the 86% care determination is a reference to a determination that was made prior to the determination that was the subject of the review application before the Tribunal. That earlier determination was revoked pursuant s 54F of the Act. Once the earlier determination was revoked, the Registrar was obliged by s 50(1)(b)(i) of the Act (if satisfied of the matter referred to in s 50(1)(b)(ii) of the Act) to determine Mr P’s percentage of care afresh. It is that determination that was objected to, was the subject of review in the SSAT and, in due course, was the subject of the review application in the Tribunal. The Tribunal was not obliged to provide reasons in relation to the earlier determination or its revocation.

102    In any event, for the reasons already given, the Tribunal provided adequate reasons for affirming the SSAT’s determination of the 50% care percentage. The reasons for upholding that determination implicitly explained why the earlier 86% determination was incorrect. No further reasons were required.

Question 6

Was the Tribunal required to, and if so did it fail to, have regard to the financial arrangements for the period Master C spent at boarding school as the “paramount consideration” in determining Mr P’s percentage of care?

103    Mr P contends, in various different ways, that the Tribunal erred in law by failing to follow Polec, or failing to give “paramount consideration” to the financial arrangements for the period of time that Master C spent at boarding school. Neither contention has any merit.

104    In Polec, Hughes FM, in legal and factual circumstances that bear little resemblance to this case, had cause to give consideration to the meaning of “care” in the Act. On appeal from the SSAT, his Honour found that the SSAT had erred in failing to take into account a number of plainly relevant facts and circumstances in considering whether the care of a child had changed when the child ceased living with his mother. Hughes FM found that the Tribunal’s finding that there had been no change to the care arrangements could not be supported on the evidence before it.

105    At the request of both parties, his Honour then went on to provide some “guidance” in relation to the matters that should be taken into account when considering to what extent a person has care for a child for the purposes of the Act. His Honour gave that guidance at [56] of his judgment. That paragraph of the judgment in Polec is extracted in full in paragraph [23] of the Tribunal’s reasons and earlier in this judgment ([39] above).

106    Because his Honour had already found that the SSAT had erred in law in arriving at its finding, it was strictly unnecessary for him to provide this “guidance”. This part of the judgment is accordingly obiter dicta. Nevertheless, paragraph [56] of Polec does indeed provide useful guidance for decision makers in determining the extent of care for the purposes of the Act. As pointed out by the Tribunal in its reasons, the list of questions or considerations outlined by Hughes FM in Polec is not dissimilar to those set out in the Guide. That is not surprising given that Hughes FM drew on previous versions of the Guide to arrive at what he considered to be a “workable definition of care”.

107    In my opinion, however, paragraph [56] of Polec should be approached on the basis that it is no more than what Hughes FM intended it to be; namely a workable guide to assist decision-makers in determining the extent of care. It should not be approached on the basis that it provides some sort of exhaustive check list of matters that it is mandatory for decisions-makers to consider irrespective of the facts and circumstances of the particular case at hand. “Care” is not defined in the Act. The extent of care that is provided is a question of fact. It will depend on the facts and circumstances of the particular case. The meaning of care in any given case should not be constrained by a set list of questions or considerations. Failure to have regard to one of the matters referred to in Polec may or may not invalidate a decision depending on the particular facts and circumstances of the case. On the other hand, in some cases a decision-maker might fall into error by ignoring facts or circumstances that are not in the list in Polec.

108    Nor is Polec authority for the proposition, as Mr P contends, that in all cases where a child is not residing with his or her parents, the financial arrangements for meeting the child’s needs are a “paramount consideration”. Much will depend on the particular facts and circumstances of the matter at hand. The weight to be given to financial arrangements will differ in each case. In some cases financial considerations will be paramount, in some cases they may not.

109    In any event, a fair reading at the Tribunal’s decision reveals that the Tribunal did give consideration to the list of considerations in Polec, and gave particular consideration to the financial arrangements relating to the payment of Master C’s boarding school fees. It found (at [25]) that Mr P and Ms M were on an “equal footing” in respect of most of the Polec considerations. The only potential difference was in relation to the payment of Master C’s school fees. The Tribunal accepted (at [26]) that the payment of the costs of meeting the needs of a child is a factor that should be considered in assessing the extent to which a parent provides care. It is implicit, if not explicit, in the Tribunal’s reasons that the Tribunal accepted that the question of who paid the school fees was a relevant, and potentially important, consideration in determining the extent of care provided by Mr P in the circumstances.

110    The difficulty for Mr P is that the Tribunal made a factual finding, open to it on the evidence, that Mr P did not pay Master C’s school fees. They were paid by Ms A P. Accordingly in the particular facts and circumstances of this matter, the payment of the school fees was not a “paramount” consideration, let alone determinative as Mr P effectively contends.

111    There is accordingly no basis for contending that the Tribunal failed to follow or apply Polec, or that it failed to have regard to any mandatory consideration relating to financial arrangements for meeting the needs of the child. It had regard to that consideration, but on the facts and evidence before it, considered that it was not a matter that impacted on its determination of Mr P’s percentage of care. Mr P’s real complaint is with the Tribunal’s finding of fact. That is not a question of law for the purposes of s 44 of the AAT Act.

112    It should be added that Mr P’s case was at all times that he paid the fees, not Ms A P. He did not contend, either before the Tribunal or on appeal, that payment of the school fees by a member of his family was relevant to a determination of his care percentage. Had the matter been put that way before the Tribunal, the Tribunal may have given some weight to it in determining Mr P’s percentage of care. Having regard to the way he put the case to the Tribunal, however, it is difficult to see how it would have been open to Mr P to argue, on appeal, that the Tribunal erred in law by ignoring, or giving no weight to, the fact that the fees were paid by his mother (see Commissioner of Taxation v Perkins (1193) 26 ATR 8 at 10; Repatriation v Warren (2008) 167 FCR 511 at [78]). In any event, Mr P did not advance any such question of law or argument on appeal. He maintained instead that the Tribunal should have found that he paid the fees. It is neither necessary nor appropriate for the Court, in these circumstances, to approach the matter on any different basis.

Question 7

Did the Tribunal fail to afford procedural fairness to Mr P by:

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

(b)    preventing the cross examination of Ms M in relation to her evidence that Mr P was not complying with the consent orders?

113    The Tribunal was bound to afford the parties procedural fairness. A denial of procedural fairness is an error of law. Therefore an appeal from a decision of the Tribunal alleging such an error raises a question of law within s 44 of the AAT Act: Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28.

114    Given that the Tribunal was required to afford procedural fairness to Mr P, the relevant questions are what the principles of procedural fairness required in the particular circumstances of the case and whether those requirements were satisfied. Consideration of those questions demands an analysis of the statutory provisions governing the Tribunal’s procedure and an evaluation of the procedure that was adopted in the particular circumstances of the case. As the plurality of the High Court said in Assistant Commissioner Condon v Pompano Pty Limited (2013) 295 ALR 638 at [156]:

The rules of procedural fairness do not have immutably fixed content. As Gleeson CJ rightly observed in the context of administrative decision-making but in terms which have more general and immediate application, “[f]airness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice”. To observe that procedural fairness is an essential attribute of a court’s procedures is descriptively accurate but application of the observation requires close analysis of all aspects of those procedures and the legislation and rules governing them.”

115    The relevant provisions governing the Tribunal’s procedure include s 39 of the AAT Act, which relevantly provides as follows:

Opportunity to make submissions concerning evidence

39 (1)     Subject to sections 35, 36 and 36B, the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.

116    The obligation imposed by s 39 is to ensure that every party “is given a reasonable opportunity to present his or her case”; it does not mean that the Tribunal has to ensure that the party takes the “best advantage” of that opportunity: Secretary, Department of Family and Community Services v Verney [2000] FCA 570 at [45], (2000) 60 ALD 737 at 748. In Sullivan v Department of Transport (1978) 20 ALR 323 at 343, Deane J (with whom Fisher J agreed) said that “neither the Act or the common law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled”: see also De Simone v Federal Commissioner of Taxation [2009] FCAFC 181 at [15]; Kenso Marketing (M) SDN BHD v Chief Executive Officer of Customs [2011] FCAFC 26 at [45]; Caporale v Commissioner of Taxation [2012] FCA 86 at [45]; Kolya at [48].

117    In considering what the principles of procedural fairness required in the circumstances of this matter, and whether those requirements were satisfied, it is relevant to have regard to the fact that Mr P was not represented before the Tribunal: Minogue v Human Rights and Equal Opportunities Commission (1999) 84 FCR 438 at [26]-[29]. In Jeray v Blue Mountains City Council (No 2) [2010] NSWCA 367 Allsop P (as his Honour the Chief Justice then was) made the following observations in the context of the question whether a trial judge denied procedural fairness to an unrepresented litigant:

[6] At the root of procedural fairness is the provision of a fair hearing to a litigant and the basal notion that the litigant has understood the proceedings before him or her and has had an adequate opportunity given to him or her, considering his or her attributes, qualities and deficiencies which render the litigant more or less able to vindicate his or her rights in court. A sharp line between rules and consequences cannot be drawn in this respect. Analogies of the rules of the game and how the game is played may be helpful at one level, but ultimately each circumstance has to be analysed and evaluated to see whether, in a human context, a fair hearing has been provided.

[7] More than a few litigants appear for themselves. Subject to any lawful procedure of a court, that is their right. Their right is to approach the judicial branch of government for the vindication of rights, private and public. This is an essential Constitutional aspect of our society. It is necessary to recognise that however easier it may make it to have the assistance of skilled professional lawyers assisting the court (and if I may respectfully say so, of the character we have had provided to us today) it is the litigant and his or her rights that are the subject of vindication.

[8] Litigants reflect the community in general. They come in a variety of forms. Those who seek to represent themselves may do so for many reasons: lack of funds, inability to obtain assistance, for whatever reason, a personal desire to participate. The reason does not matter. One consequence of people appearing for themselves is that they suffer the dual strain of being both litigant and advocate. All who have undertaken the strain of advocacy understand the strains involved in one task. The combined role must be doubly stressful.

[9] None of the above is to underestimate the ability of some litigants in person and, I emphasise at this point that I am not referring to Mr Jeray, to manipulate the legal system for ulterior motives, often to the great cost and strain of their opponent parties and to the system of justice itself. Litigation almost always has at least two sides and to indulge any whim of a litigant in person in an expensive, stressful and complex undertaking that is litigation is a step that is unwise. To indulge unthinkingly any whim of a litigant in person can cause great hardship to parties who oppose to them.

[10] The balance of fairness, procedural rigour and wise and practical indulgence in managing litigation by a judge is no simple task. Too indulgent an attitude to a litigant in person will unfairly burden the other side. An absence of proper regard for the needs of the litigant in person my cause injustice.

[11] The balance can be a fine one. Sometimes the difference is one of evaluative assessment about which minds can differ. Though the ultimate question of whether a tribunal has afforded procedural fairness is a judgment of the satisfaction of an essential legal and Constitutional standard, it is decided principally by reference to a factual evaluation of a normative consideration of fairness in the judicial process. It is unnecessary to consider further any philosophical or legal consideration as to the character of the judgment or evaluation involved.

[12] It is of course necessary to have regard not to what a judge might advisedly do best to exemplify judicial practice, but rather the question is what a judge must do to provide a fair hearing and equal justice.

118    On this appeal, Mr P relied on an affidavit sworn by him which annexed correspondence between himself, the Registrar’s legal representative and the Tribunal in the period leading up to the hearing. The transcript of a directions hearing before the Tribunal was also in evidence. In his correspondence with the Registrar and the Tribunal, Mr  P detailed his understanding of the requirements of procedural fairness, raised a number of issues relating to the fairness of aspects of the Tribunal’s procedures, complained about the conduct of a directions hearing, referred to the Registrar’s obligations as a model litigant, contended that the Registrar was not complying with those obligations and sought an adjournment of the hearing until the Registrar explained “exactly the legislation or policy that assists the Tribunal to determine care without considering nights so that the applicant might prepare his case.” The adjournment application was refused.

119    It is unnecessary to recite in any detail all of the various allegations and contentions made in Mr P’s correspondence, or the surrounding facts and circumstances relevant to those allegations. That is because ultimately Mr P’s case on appeal that he was denied procedural fairness rests essentially on only two contentions. The first contention is that he was not given a reasonable opportunity to present his case and make submissions because the Tribunal refused or failed to explain the approach that would be used to determine his percentage of care. The second contention is that the Tribunal prevented him from cross-examining Ms M in relation to her evidence that Mr P was not complying with the consent orders.

120    Neither contention has any merit. Mr P was not denied procedural fairness by the Tribunal. He was, in all circumstances, provided a fair hearing and equal justice.

121    The background to Mr P’s contention that the Tribunal was obliged to, but did not, explain to him the approach that would be used to determine the percentage of care begins with the judgment of Buchanan J. In his judgment, Buchanan J expressed doubts about, but did not decide, whether in determining actual care the Registrar, (or the Tribunal standing in the Registrar’s shoes) was required to apply the methodology in s 54A of the Act.

122    On this point, Buchanan J said (at [11]):

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

123    Following the remittal of the matter to the Tribunal, Mr P wrote to the Tribunal requesting information about the “key issues” so as to address his “lack of understanding of how the matter would progress”. A directions hearing was in due course held. It appears that the Registrar’s solicitor appeared in person whereas Mr P appeared by telephone. That directions hearing was unsatisfactory as far as Mr P was concerned. He subsequently complained about the fact that only he appeared by telephone. He also complained about other aspects of the conduct of the senior member who conducted the directions hearing (who was not the same member who ultimately heard the matter). It is unnecessary to explore the various complaints about the directions hearing. They do not directly relate to the alleged denial of procedural fairness ultimately pursued by Mr P on this appeal. In any event, even if substantiated, these complaints would not establish a denial of procedural fairness given what occurred subsequent to the directions hearing.

124    One important matter that did emerge from the directions hearing was that, given Mr P’s contention that he did not understand the key issues or the way in which the matter would progress in the Tribunal, the Registrar was directed to file an SFIC first, before Mr P was required to file his SFIC. This the Registrar did. Ordinarily an applicant in the Tribunal files a SFIC before a respondent.

125    The Registrar’s SFIC set out, in relatively short, simple and understandable terms, the relevant background to the proceedings, the relevant legislative provisions, the facts that the Registrar considered relevant, the issues before the Tribunal and the Registrar’s contentions in relation to the facts and issues. It included the following paragraphs in relation to the possible approaches that the Tribunal could take to determine the percentage of care:

28.    An analysis of the relevant provisions of the Assessment Act, the FCA Judgment and The Guide suggest three possible options. They are that the AAT may determine each parent’s percentage of care (with respect to [Master C]) under s 50(2) of the Assessment Act by:

28.1    Option A: utilising s 54A(1) to determine actual care by reference to the number of nights [Master C] is in the care of each parent, including by attributing nights spent at boarding school to either one parent or the other (or, subject to s 54A(3), both);

28.2    Option B: utilising s 54A(1) to determine actual care by reference to the number of nights [Master C] is in the care of each parent, without attributing nights spent at boarding school to either parent; or

28.3    Option C: determining actual care other than by reference to the number of nights [Master C] is in the care of each parent.

29.    Each of these possibilities was alluded to, and expressly left open, by Buchanan J. For example, his Honour:

29.1    described as “much less sound” the assumption that the it [sic] was “necessary or appropriate” for the nights that [Master C] spends at St Joseph’s College “to be attributed somehow to, or between, the applicant and/or the second respondent” (FCA Judgment at [11], see also at [13] and [14]);

29.2    stated that it was “not clear…that is necessary under the Act to actually assign the period, or days within it, to one parent or the other” (at [31]); and

29.3    referred, with apparent approval, to the statements in The Guide concerning the approach the Registrar may take in determining actual care, or might take if actual care cannot be determined (at [33]).

30.    No particular approach is mandated by either the FCA Judgment or The Guide. Ultimately, it is a matter for the AAT to determine the preferable decision based on the dictates of good administration and individualised justice (even if that means departing from government policy, including The Guide). And although, in making its determination, the AAT is required to take account of the facts set out at pars 8-11 above – the weight to be placed on each fact is a matter for the AAT alone.

126    The Registrar contended that Option C was the appropriate course: Paragraphs 36 and 37 of the Registrar’s SFIC clearly set out the Registrar’s contentions in that regard:

36.    That leaves Option C, which the Registrar contends is the preferable course, because it permits percentages of care to be determined, directly under s 50 and without recourse to s 54A(1), by assessing actual care other than by reference to the number of nights [Master C] spends with each parent (thus avoiding the somewhat artificial task of attempting to assign nights at boarding school to either or both parents).

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

127    The Registrar’s explanation of the relevant legislation and policy and his contentions concerning how the Tribunal should approach the determination of care in the matter did not satisfy Mr P. Instead, it unleashed a further series of emails in which Mr P demanded, amongst other things, further explanation of “how the percentage of care will be determined without reference to nights”. That was a reference to the Registrar’s preferred position that care should be determined in this matter without recourse to s 54A. Mr P’s demands are typified in an email of 24 April 2013 from Mr P to the Tribunal in which Mr P said:

Again, it the Tribunal is not willing to provide an adjournment; natural justice and procedural fairness dictate that the Tribunal have the Child Support Registrar (Registrar) explain exactly the legislation or policy that assists the Tribunal to determine “care without considering nights” so that the Applicant might prepare his case. The smoke and mirror approach currently being adopted by the Registrar might be acceptable in the traditional adversarial proceedings, not in this case with an unrepresented Applicant, the father, presenting his case against three legally qualified solicitors.

128    Mr P’s professed lack of understanding about how the Tribunal might determine the percentage of care and his professed inability to prepare his case in this respect must be considered in light of the fact that on 10 April 2013 Mr P filed a 58 page SFIC. Amongst other things, Mr P’s SFIC contained detailed contentions and submissions in relation to the Act, the Guide and the approach that the Tribunal should take in determining care. In it, Mr P contended, in effect, that the Tribunal should not accept the Registrar’s preferred approach because that approach would be contrary to law (including that it would result in the same error found by Buchanan J in the first appeal proceeding) and contrary to the policy set out in the Guide.

129    A fair reading of Mr P’s SFIC reveals that Mr P clearly understood and was responding to the critical issues for determination by the Tribunal. Mr P’s contention that he did not understand how the Tribunal might approach the determination of care and was unable to properly present his case was, and is, disingenuous and must be rejected.

130    The same conclusion is reached when regard is had to the transcript of the hearing before the Tribunal. Whilst Mr P repeatedly claimed that he needed assistance and did not understand the issues, it is tolerably clear from the way he conducted himself during the hearing that he well-knew what the important issues for determination were.

131    Mr P relies on the well-known decision of the Full Court in Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576. At 591-592 of the judgment, the Full Court said:

Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from is nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.

132    The difficulty for Mr P, is that his SFIC and the record of the Tribunal proceedings generally reveals that he was well aware of all issues critical to the decision which were not otherwise apparent from the nature or terms of the Act. The Registrar’s SFIC clearly identified the key issues. Whilst the Tribunal ultimately reached conclusions adverse to Mr P, those conclusions were potentially open given the known material. Given the way Mr P conducted himself before and during the hearing, it is clear that he was aware of this. The Tribunal was not obliged to expose its mental processes or provisional views to comment by Mr P before making its decision. In any event, it is clear that during the course of the hearing the Tribunal did expose its thinking in a way that enabled Mr P to respond accordingly.

133    The second contention that forms the basis of Mr P’s claim that he was denied procedural fairness concerns Ms M's evidence, given during cross-examination by Mr P, that she did not believe that Mr P was complying with the consent orders. That evidence is extracted earlier in this judgment ([19] above).

134    The following appears in the transcript after Ms M gave this evidence:

SENIOR MEMBER:    Ms [M], stop.

MR [P]:        At no point was that question asked of any one - of either one of us at the AAT, and it was a - and Buchanan J didn't test it, he assumed that the AAT ---

SENIOR MEMBER:    I want you to stop now.

MR [P]:        Sorry.

SENIOR MEMBER:    All I can do is leave that to your submissions. It's there, all right? Go on please, any other questions?

135    When this exchange is considered in the context of the case Mr P was advancing in the Tribunal, the issues the Tribunal was required to decide and the conduct of the hearing generally, it is not surprising that the Tribunal appears to have put a stop to Ms M’s evidence and Mr P’s line of questioning in relation to compliance with the consent orders.

136    As indicated earlier, Mr P had not contended in his SFIC that the consent orders were not being complied with, let alone that he was not complying with them. His only contention was that there was an apparent inconsistency between orders 4 and 7 in relation to where Master C was to reside. Given Mr P’s concession that Master C's time outside boarding school was split between his parents, that technical argument was immaterial. Mr P’s case before the Tribunal focused on Master C’s time at boarding school and his contention that he paid the school fees. Ms M’s belief that Mr P was not complying with the orders in some way was largely irrelevant to that issue.

137    The likely irrelevance of any further evidence that could have been elicited from Ms M on this topic is demonstrated by what occurred earlier in the cross-examination of Ms M. Mr P had been cross-examining Ms M about matters that could only be regarded as trivial, such as whether Ms M had on occasion inappropriately held onto Master C’s clothes. He also began to question Ms M about the proceedings that had been commenced in the Federal Magistrates Court alleging non-compliance with the consent orders. There was evidence before the Tribunal to the effect that those proceedings had been withdrawn by consent. There was, not surprisingly, an objection to the relevance of this line of questioning by both the Registrar and Ms M. It is equally not surprising that the presiding senior member was reluctant to allow the proceedings to descend into an examination of trivial matters that were the subject of the withdrawn Federal Magistrates Court proceedings. It is in that context that the exchange relied on by Mr P must be considered.

138    Three other matters should also be noted. First, the transcript records that Mr P said that he agreed with Ms M. In these circumstances it is difficult to see what relevant questions Mr P would have advanced had he been permitted to pursue the cross-examination.

139    Second, and perhaps more significantly, after he had asked Ms M and Mr P to stop dealing with this topic, the senior member indicated that the issue should be left to submissions. Mr P made no submissions on the issue of non-compliance with the consent orders. Given the case he was advancing before the Tribunal that is not surprising. It again demonstrates that any evidence that Mr P may have elicited from Ms M on this topic was likely to be irrelevant.

140    Third, one can perhaps sense a note of exasperation on the part of the Tribunal by this stage of the proceeding. When read in the context of the conduct of the hearing up to this point, that is perhaps understandable. It would perhaps have been prudent for the senior member to at least further inquire of Mr P why he contended that the evidence of Ms M that she believed that Mr P was not complying with the orders was relevant to his case. However, given the way Mr P had conducted his case before the Tribunal up to this point, as well as the earlier exchange in relation to non-compliance with the consent orders, the fact that the senior member did not do this is not a material defect in the conduct of the hearing.

141    Mr P was not denied procedural fairness as a result of not being permitted to pursue what was, in the context of the issues and contentions before the Tribunal, almost certainly an irrelevant line of questioning. There was no practical injustice. Even if this did, in some way, amount to a denial of procedural fairness, I am not in any event persuaded that this could have made any difference or had any bearing on the application: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [32]-[38]; Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147; Re Refugee Review Tribunal Ex parte Aala (2000) 204 CLR 82 at 116-117.

142    In rejecting Mr P’s contention that he was denied procedural fairness, due regard has been given to the fact that he was unrepresented before the Tribunal. A fair reading of the record of the Tribunal’s conduct of the review reveals that the Tribunal acted, as best it could, to diminish any disadvantage that Mr P may have had as an unrepresented applicant: cf. Rajski v Scitec Corporation Pty Ltd (unreported, NSW Court of Appeal, 16 June 1986) at [14] and [27]). The Tribunal was assisted in that regard by the Registrar, through the Registrar's legal representative. Mr P’s assertions, in his correspondence with the Tribunal, that the Registrar acted otherwise than as a model litigant, or otherwise than in accordance with s 33(1AA) of the AAT Act were, and are, without substance.

Question 8

Did the Tribunal fail to exercise its jurisdiction to conduct a review of the decision of the SSAT by limiting its consideration to the period that Master C spent at boarding school?

143    Buchanan J’s remittal of the matter to the Tribunal to be further determined according to law was not limited in any way: cf. Kaluza v Repatriation Commission (2011) 280 ALR 621. Neither Mr P nor the Registrar contended otherwise.

144    Mr P contends, however, that the Tribunal on remittal did not exercise its jurisdiction to review the SSAT’s determination of Mr P's percentage of care during the relevant care period because it limited its consideration of percentage of care to the period that Master C spent at boarding school.

145    That contention has no merit and is rejected.

146    There is no doubt that the Tribunal focused on the period that Master C was at boarding school: Tribunal decision at [6]. However, that was entirely as a result of the way Mr P conducted his case before the Tribunal (which was consistent with the way he had conducted it before the SSAT, before the Tribunal in the first hearing and on appeal before Buchanan J). Most significantly, as adverted to earlier, Mr P conceded that during the periods when he was not at boarding school, Master C split his time equally between his parents. He conceded that care of Master C was also equally divided between his parents during those periods. That concession was entirely consistent with the evidence before the Tribunal, including the consent orders and the evidence of Ms M (see in particular Ms M’s affidavit, exhibit 2R2, at [9]-[21]). There was no evidence that cast any doubt whatsoever on the correctness and appropriateness of that concession.

147    The Tribunal is entitled to act on an admission or concession of a party and to reach the correct or preferable decision by reference to the concession as well as to its findings on disputed questions: Comcare v Fiedler (2001) 115 FCR 328 (Fiedler) at 337-338; Peacock v Repatriation Commission (2007) 161 FCR 256 at [23]. The Tribunal may fall into error if there is reason to doubt that the admission or concession is factually justified: Fiedler at [39]. This however, was not such a case.

148    The Tribunal did decide the percentage of care for the entire care period. It had regard to the period when Master C was not at boarding school and acted on a concession in relation the that period that there was no reason to doubt. It then proceeded to deal with the disputed boarding school period. There was no error in that approach.

CONCLUSION

149    Mr P has failed to demonstrate that the Tribunal erred in law in any way referable to any question of law that may be gleaned from his notice of appeal and submissions. The appeal must accordingly be dismissed. It was not submitted by either party that there was any reason why costs should not follow the event. There is no reason why Mr P, as the unsuccessful party, should not pay the Registrar's costs. Accordingly the appeal is dismissed with costs.

150    It should be noted that, consistent with earlier judgments, and by reason of the restrictions arising under s 121 of the Family Law Act and s 110X of the Child Support (Registration and Collection) Act 1998 (Cth), pseudonyms have been used throughout this judgment to identify the first and second respondents and their child.

Associate:

Dated:    5 December 2013

Schedule

Questions of Law

1.    Whether the Tribunal erred in law in determining that it was neither necessary nor appropriate to attribute the specific period that Master C spends at St Joseph's to either parent, therefore disregarding the mandated requirements that the percentage of care determined must be a percentage that corresponds with the actual care, as per of Section 50 of the Child Support (Assessment) Act 1989, and additionally failed to construe properly the stated policies of the Child Support Agency?

2.    Whether the Tribunal erred in law by failing to construe properly Section 54A of the Child Support (Assessment) Act 1989 when determining that the nights spent by Master C at boarding school can be considered to be shared by both the parents, and if therefore the Tribunal can then effectively ignore the judgement of Justice Buchanan dated 29 November 2012?

3.    Whether the Tribunal made erroneous findings of such magnitude and significant conclusions so perverse that the Tribunal has exceeded the jurisdiction which it purports to exercise and that these findings and conclusion were not open to the Tribunal and were not based on the evidence available to the Tribunal, specifically the findings that (i) the parties are on equal footing in regard to care and (ii) that the consent orders are being complied with?

Whether the Tribunal had regard to or considered erroneous or irrelevant matters, specifically when having regard to the consent orders dated 6 June 2011 to extrapolate that shared parental responsibility equates to shared care in this matter?

5.    Whether the Tribunal failed to provide adequate reasons when dismissing the unrefuted evidence that the Applicant is solely responsible for the payment of school expenses of St Joseph's, and failing to state the compelling reasoning behind the departure from the stated Child Support Agency polices, or the reasoning why the existing 86% care determination was incorrect and how the care arrangements of Master C had changed as of 6 June 2011?

6.    Whether the Tribunal's decision was irrational in that they ignored the relevant material entered into evidence, via witness testimonies and documentation which stated that the applicant was solely responsible for payment of all expenses relating to the care of Master C at St Joseph's college and that the time spent by Master C during school holidays was not equally shared?

7.    Whether the Tribunal's decision was illogical given the deviation from the legal principles established in Polec & Staker & Anor (SSA T Appeal) [2011] FMCAfam 959, specifically that the paramount consideration when determining percentage care when a child is not living at home is the financial arrangements for the care of the child?

8.    Whether the Tribunal denied the Applicant natural justice by refusing to explain to Applicant the approach that would be used to determine the percentage of care, despite numerous requests during the directions hearing, correspondence prior to the hearings and finally during the hearing on 1 May 2013?

9.    Whether the Tribunal failed to accord the Applicant procedural fairness by asserting that the consent orders of June 2011 were being complied with and then preventing (i) cross examination of the second respondent when testing the validity of the assertion (ii) the opportunity to test the veracity of that assertion, despite both parties agreeing that the orders were not being complied with and (iii) alerting the applicant that his attempt to extract testimony would not be persuade the tribunal of its adverse finding that the consent orders were being complied with?

10.    Whether the Tribunal identified the wrong issues and asked itself the wrong questions when it chose to limit the consideration for percentage of care of Master C only to the period that Master C is spending at St Joseph's College?

Grounds relied on

1    The Tribunal repeatedly misquoted the CSA Guide to support the Tribunal's reasoning to avoid making a determination in the percentage of care attributable to either of the parties. Section 50(3) mandates a percentage of care be determined that corresponds with the actual care of the child that the responsible person has had during the care period, further Section 548 requires that the determined percentage of care for section 50 then be applied to each day of the care period. It is insufficient of the Tribunal to ignore a period of time that corresponds to over 55% of the care period; making decision of the Tribunal to disregard the period that Master C spends at St Joseph's erroneous and of such a magnitude rendering the decision perverse, unreasonable and offensive to logic.

2.    It is illogical of the Tribunal to state that the time spent by Master C at St Joseph's is shared. By doing so the Tribunal has repeated the error made by the Tribunal in June 2012 as determined by the Judgment of Justice Buchanan dated 29 November 2012 which clearly outlined the legal principles to be applied.

3.    The Child Support (Assessment) Act 1989 at Section 50(3) [mandates a percentage of care be determined that corresponds with the actual care of the child that the responsible person has had during the care period. Further section 54A provides guidance for the Registrar in working out the actual care and extent of care that a person has of a child. Section 54A(3) provides that a child cannot be in the care of more than one person at the same time. The Tribunal has misconstrued the legislative by finding that the time spent by Master C at St Joseph's is shared. By doing so thee Tribunal has repeated the error made by the Tribunal in June 2012 as determined by the Judgement of Justice Buchanan dated 29 November 2012 which clearly outlined the legal principles to be applied when actual care is to be determined.

4.    It is irrational of the Tribunal in finding that the Second Respondent provides care during the time Master C spends at boarding school at the same level the Applicant when the uncontested evidence is that the Second Respondent to has refused to assist in any way toward the costs of the school expensive. Further it is unreasonable to place the Second Respondent and the Applicant on an equal footing in respect of Master C's care while he is at boarding school given the weight of evidence stating otherwise.

5.    Based on the evidence , witness statements and other documentation provided to the Tribunal, the Tribunal has erred in the application of the legal principles of Polec & Staker & Anqr (SSAT Appeal) [2011} FMCAfam 959 and how they should be applied to the facts and evidence before the Tribunal. Thus making the decisions of the Tribunal dated 25 June 2013 irrational.

6.    The conclusion that the consent orders dated 6 June 2011 are being complied with, was not open to the Tribunal on the evidence thus making the finding of fact irrational.

7.    The Tribunal failed to properly apply legal principle to shared parental responsibility and shared care. Thus making the decisions of the Tribunal dated 25 June 2013 illogical.

8.    The Tribunal has failed to provided adequate reasons, or set out the reasoning process, in the finding that the unrefuted evidence supplied by St Joseph's stating that sole source of payment of any and all school fees and costs is the Applicant.

9.    Although permissibly for the Tribunal to depart from legislation or policy, no compelling or proper reasons has been provided by Tribunal. By failing to give adequate reasons or set out the reasoning process when deciding to depart from legislation or policy the Tribunal has erred in law.

10.    The Tribunal failed to provide adequate reasons for the decision to revoke the 86% care arrangement for Master C on 6 June 2011 which had been based on the uncontested fact that the applicant had been solely responsible for all expenses associated with the care of Master C at St Joseph's college. It is not possible to discern from the reasons provided why, in light of the agreed facts, the Registrar was able to determine that the care of Master C had changed. Thus making the decision of the Tribunal dated 25 June 2013 illogical.

11.    The Tribunal failed to give proper weight or consideration to the evidence provided to the Tribunal in witness testimony and written documents. Thus making the decision of the Tribunal dated 25 June 2013 irrational. Specifically the Tribunal failed to give proper weight or consideration to the fact that the Applicant is solely responsible for Master C's school expenses which include school fees, accommodation, transport, meals, water, electricity, clothing, medical expense and extracurricular activities, and failed to acknowledge that there is time spent during the school holidays that is not equally shared. Thus making the decision of the Tribunal dated 25 June 2013 both illogical and irrational.

12.    The Tribunal failed to properly apply legal principle and follow the decision of Polec & Staker & Anor (SSA T Appeal) [2011] FMCAfam 959. Thus making the decision of the Tribunal

13.    Following the request by the Registrar to deviate from legislative provisions and stated guidelines the Tribunal refused to illuminate the Applicant with the alternative approach that was to be used by the Tribunal to determine the percentage of care, despite his numerous requests. The Tribunal and Registrar have denied natural justice to the Applicant by failing to allow him to present his case on a level playing field and as such the ability to properly call evidence in reply.

14.    The Tribunal failed to advise the Applicant of the adverse conclusion that would be reached should they find that the consent orders were being complied with; despite both parties having conceded that the orders were not being complied with, thus preventing the Applicant the ability to provide further evidence of non-compliance during the hearing. Further the Tribunal prevented further cross examination of the Second Respondent when trying to press this matter on the day of the hearing. The Applicant made clear attempts to disprove compliance with the consent orders. The Tribunal's failure to alert or inquire has prevented the Applicant the opportunity to present further evidence and therefore resulted in a lack of procedural fairness.

15.    The Tribunal has failed to address the sole reason for the convening of the Tribunal l, namely 'What is the percentage of actual care provided by either parent to Master C during the care period?" In limiting the issues to the period that Master C is at boarding school, the Tribunal has disregarded the mandatory requirement of Section 50 and Section 548 that actual care is to be determined for the whole of the care period and thus a full merits review was required in these circumstances.