FEDERAL COURT OF AUSTRALIA

DPT18 v DPU18 [2019] FCA 1250

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time within which to appeal be dismissed.

2.    The Applicant pay the Second Respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

KERR J:

1    On 3 April 2019, the Federal Circuit Court of Australia (FCCA) dismissed an appeal from two decisions of the Administrative Appeals Tribunal (Tribunal) in relation to child support payable by the First Respondent to the Applicant: DPT18 v DPU18 & Anor [2019] FCCA 488, also published as Dobson v Dobson & Anor [2019] FCCA 488. Pursuant to r 36.03 of the Federal Court Rules 2011 (Cth) (Rules) as in force at that time, the Applicant had 21 days within which to file a notice of appeal, concluding on 27 March 2019. No notice of appeal was filed on or before that date. Rule 36.03 of the Rules was amended by the Federal Court Amendment (Court Administration and Other Measures) Rules 2019 (Cth). That amendment came into effect on 2 May 2019. It extended the time within which an appeal could be commenced to 28 days after the date on which the judgment appealed from was pronounced or the order was made. Self-evidently, that amendment does not effect this proceeding.

2    The Applicant lodged an application for an extension of time on 3 April 2019; seven days out of time. The Child Support Registrar (Registrar) opposes the extension of time the Applicant has sought. DPT18 now applies for an extension of time within which to appeal from the primary judge’s decision.

3    The principles relevant to an application for an extension of time within which to appeal are well settled. The Court will have regard to the extent of the delay, reasons for delay, any prejudice the respondent may suffer because of the delay, and the merits of the proposed appeal: Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; 3 FCR 344 at [348]-[349]. In respect of the last of those considerations, the Court’s duty is to evaluate the merits of the appeal on a reasonably impressionistic level: Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 at [21]; Guo v Minister for Immigration and Border Protection [2018] FCAFC 34 at [27]; and Jackamarra v Krakouer [1998] HCA 27; 195 CLR 516 at [9].

Background

4    Given the reasonably impressionistic level at which I am to evaluate the merits of the proposed appeal, I do not intend to set out the background in detail. It is sufficient by way of an introduction to these reasons to note the following uncontentious matters. The Applicant and the First Respondent are the parents of two children. The Applicant is their primary carer. The First Respondent is liable to pay child support. The Applicant commenced three separate applications in the Tribunal seeking review of decisions of the Registrar. Proceeding 2018/HC013241 took issue with a decision of the Registrar as to how the Applicant’s adjusted taxable income for the financial year ending 30 June 2015 should be assessed. Proceedings 2017/MC013167 and 2018/HC013266 sought review of two decisions of delegates of the Registrar in relation to objections raised by the Applicant regarding the Applicant’s and the First Respondent’s respective adjusted taxable incomes.

5    With respect to proceedings 2017/MC013167 and 2018/HC013266, on 19 April 2018, the Tribunal had issued directions pursuant to s 33 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). Those directions had required the Applicant to produce certain documents relating to her financial circumstances no later than 10 May 2018.

6    When her applications came before the Tribunal on 14 June 2018, the Tribunal dismissed proceedings 2017/MC013167 and 2018/HC013266 pursuant to s 42A(5) of the AAT Act on the basis that the Applicant had not complied with its 19 April 2018 directions.

7    At [1]-[10] of its reasons, the Tribunal referred to the Applicant’s failure to produce a number of requested financial records. Amongst the classes of and specific documents that the Tribunal noted the Applicant had not provided (listed at [6] of the Tribunal’s reasons), were the Applicant’s personal taxation returns and notices of assessment for the financial years ending 30 June 2015 and 30 June 2016.

8    With respect to proceeding 2018/HC013241, the Tribunal reasoned that the Applicant’s adjusted taxable income for the financial year ending on 30 June 2015 was properly to be determined by reference to the information she had provided on 3 November 2015, and for the reasons it gave, s 58A(1) of the Child Support (Assessment) Act 1989 (Cth) did not require the Applicant’s adjusted taxable income for the financial year ending June 2015 to be amended. The Tribunal affirmed the Registrar’s decision accordingly.

9    The Applicant filed a “notice of appeal” in the FCCA with respect to all three of those decisions of the Tribunal. She also applied to adduce further evidence.

10    In dismissing both her application to file further evidence and appeal/review, the primary judge accepted that the Tribunal had made a factual error when it found that the Applicant had not provided her Notices of Assessment for the financial years ending 30 June 2015 and 30 June 2016. However, her Honour held that the Tribunal’s error in that regard was immaterial “when considering the extent of the Applicant’s non-production and the totality of the Tribunal’s reasons, read as a whole” (at [38]).

11    For the reasons the primary judge gave at [39]-[59], her Honour thereafter dismissed each of the applications before her with costs.

The application for an extension of time

Reason for delay and prejudice

12    In support of the Applicant’s application for an extension of time, the Applicant relies upon an affidavit in which she deposes that she had mistaken the 21 day time limit within which to commence an appeal from a decision of the FCCA with the 28 day time limit within which to commence an appeal from a decision of the Tribunal. She deposes also that she also had proceedings on foot in the Family Court and an Intervention Order in the Magistrates Court during the two weeks leading up to 3 April 2019, which had distracted her attention from the relevant time limit.

13    The Registrar submits that an extension of time should be refused in each instance on the basis that the Applicant had not provided a reasonable excuse for her delay in filing the application. The Registrar submits:

13.    While the length of delay is not significant, the time limits imposed by the Rules are not to be ignored; they are “not mere aspirational guidelines” and “once any period expires without any appeal being lodged the parties are entitled to assume that the litigation as at an end and that they may move on with their affairs as defined by the judgment at first instance. The court should not readily disturb that established state of affairs” [citing BLD16 v Minister for Immigration and Border Protection [2017] FCA 1400 at [3] per Derrington J].

14.    The applicant’s explanation for the delay, as set out in her affidavit, is that she mistakenly believed that she had 28 days to appeal the primary judgment, instead of the 21 days, and was involved in a Family Court and Intervention Order proceedings which had distracted her attention from the correct time limits to file the appeal.

15.    It was the responsibility of the applicant to ascertain her review rights, including any applicable time limits and that ignorance of those limits is not a satisfactory explanation of the delay [citing SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319 at [38] per Foster J].

16.    The Registrar otherwise accepts that there would be no prejudice if the Court were to grant an extension of time, beyond the cost of responding to an unmeritorious application and the public interest in the finality of decision making [citing Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67 and Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541].

17.     Critically, however, the Registrar submits that the application for an extension of time ought to be refused because the proposed substantive appeal is without merit. The proposed grounds of appeal fail to identify any basis for the Court to be satisfied that an extension of time is warranted.

14    There is much to be said in favour of the submissions advanced on behalf of the Registrar. While it is understandable that a self-represented litigant with other court proceedings on foot might misunderstand the time limits contained in the Rules, parties are entitled to expect that litigation is at an end following the expiration of the relevant appeal period. A misunderstanding by a party as to an applicable time limit is not a sufficient reason to extend time. Nevertheless, given the Applicant is self-represented, I am prepared to proceed on the basis that the merits of the proposed appeal ought to be the predominant factor in determining such an application.

Merits of the proposed grounds of appeal

15    The Applicant’s draft notice of appeal is as follows (unaltered):

1.    Legal unreasonableness and jurisdictional error of the Administrative Appeal Tribunal (AAT) by failing to afford procedural fairness at common law by not granting an adjournment to obtain closed bank accounts and other non-readily accessible documents that were not in the Applicant’s possessions, and;

2.    The legally unreasonableness and failure of the Federal Circuit Court of Australian Review Judge to consider the unreasonableness of the AAT and all relevant fundamental material, in particular 3000 or more pages of s.46 documents and the Application to adduce and to tender new evidence by way of the closed bank statements in question, to reach just, fair and equitable judgements.

16    The written submissions filed by the Applicant are as follows:

1.    The High Court’s decision in Minister for Immigration & Citizenship v Li (2013) significantly extended the capacity of the superior courts in Australia to review an administrative decision and to determine whether it was legally “reasonable” or not, to further the Wednesbury unreasonableness as to have broader jurisdiction to determine whether the outcome of an exercise of discretion has an evident and intelligible justification by reference to the terms, scope and purpose of the statute conferring power.

2.     It is the Applicant’s stance that the AAT and the Federal Circuit Court’s decisions for dismissal failed to give proper weight to the relevant factors on the basis of legally unreasonableness for the purpose of the AAT to make just and equity decisions that affect the children’s Human Rights to be adequately supported by both parents and to be protected from financial abuse by one or more parents, as per determined in Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986).

3.     Directional decisions must be made on facts, logic and rationality. In this case, these tests were not adhered to for the unfettered discretionary decisions of the AAT on 14 June 2018 and 6 March 2019 in the Federal Circuit Court of Australia.

4.     The High Court has long held that a decision-maker must exercise a discretionary power reasonably, either because legislature is taken to intend that the discretion must be exercised reasonably as in Kruger (1997). The Applicant contends that the AAT and Federal Circuit Court did not exercise reasonably discretion and did not consider material facts of the s.46 documents in its totality that was before it. The result was jurisdictional error on the basis of procedural unfairness on common law grounds and Human Rights breaches and a gross miscarriage of justice to the Applicant and the two children.

5.    [McCloy v New South Wales [2015] HCA 34; 257 CLR 178] (at [79]) propounded the test of “structured proportionality” for legal unreasonableness as:

a.     Whether the impugned decision is in pursuit of a legitimate object (“legitimacy”);

b.     Whether the means for pursuing the legitimate object are rational, fair and not arbitrary (“suitability”);

c.     Whether alternative strategies could and should have been chosen which would intrude less on the affected individual rights (“necessity”);

d.     Whether even a minimally intrusive limitation is permissible in pursuit of the legitimate end (“balance”).

6.     Proportionality review is well established in the United Kingdom to the extent that administrative decisions are challenged for breach of the Human Rights Act. It is apparent that proportionality is a more intrusive general standard than the currently available common law grounds of review impugning the outcome of a decision.

7.     In this case, the AAT failed to take into consideration that its discretionary dismissal under s.42A, AAT Act 1975, without affording procedural fairness under common law, to adjourn the hearing on 14 June 2018, in order for the Applicant to seek the bank statements of the closed accounts and original tax documents from her Bankruptcy Trustee and former accountants, and the Federal Circuit Court’s decision on 6 March 2019 to dismiss the Review Appeal Application heard on 2 November 2018 and the Application to adduce and tender new evidence (the closed bank statements in question) heard on 4 February 2019, without consequential relief, may be in breach of the two children’s Human Rights under the Convention on the Rights of the Child (CRC), Article 3, the International Covenant on Civil and Political Rights (ICCPR), Article 27 and the International Covenant on Economic, Social and Cultural Rights, Article 11; that is to say the best interests of the child shall be a primary consideration and the rights to have an education and safe housing and to be protected from financial abuses.

8.     The Applicant’s case clearly highlights the failure of the test for proportionality of reasonableness.

9.     Due to the Department of Human Services, Child Support Agency (DHS CSA) and/or Registrar’s previous decisions to twice refuse to make a decision under s. 98E of the Child Support Assessment Act and its failure to consider fundamental material facts about the Respondent Father’s true financial circumstances during the Applicant’s Objection to the results of her Application for Change of Assessments for Child Support, it was necessary for the Applicant to file a Review Application to the AAT in accordance to administrative law procedures.

10.     However, the AAT subsequently used it discretion to dismiss on the basis that the Applicant “failed to comply with a direction of the Tribunal” under s.42A, AAT Act 1975, the Applicant’s Applications for Change of Assessments of Child Support Assessment without reviewing their merits in relation to the Human Rights of the children, and the totality of the 3000 or more pages of relevant s.46 documents that were before it.

11.     Under s.42A, AAT Act 1975, the Tribunal does have discretional power to dismiss any Applications; however, unfettered discretionary powers must not be used to cause procedural unfairness and miscarriage of justice to the parties and the community at large.

12.     The Applicant had advised the Tribunal during the Review Hearing on the 14 June 2018 (as per court transcript P-10 and P-11 and P-15 [40], [DPT18]: Well, that is the best that I can access now because I don’t have access to closed accounts”) that she had complied with its directions to the best of her ability to documents that were accessible to her. It is an uncontested fact that the Applicant is an undischarged bankrupt. She advised that her Official Trustee maintained her financial documents and her former accountant is a creditor in her Bankrupt Estate.

13.     A short adjournment of 30 minutes was provided to the Applicant during the AAT Review Hearing on 14 June 2018 but that was only to verify the documents that was sent to the AAT and it was not to provide “reasonable” time for the Applicant to seek access to material and documents from her Trustee and/or former accountants, that were not in her direct access or possession.

14.     The Applicant holds the position that it was legally unreasonable for the AAT and the Federal Circuit Court to dismiss her Applications on her inability to access documents at the time of the Review Hearing on 14 June 2018, without a reasonable adjournment for procedural fairness on common law grounds; and based on the facts of the case and the abundant s46 documents that contradicted the Respondent Father’s true financial circumstances used by the Registrar for the Assessments of Child Support Contribution, it was legally unreasonable for the discretionary dismissal on jurisdictional errors without offering the Applicant the opportunity of adjournment to seek those extra material documents.

15.     The Federal Circuit Court then repeated the perpetration of legal unreasonableness by failing to consider fundamental material of 3000 or more s.46 documents to find legal unreasonableness for procedural unfairness on the part of the AAT for its discretionary dismissal and its failure to make fair conclusion of the Applicant’s true financial circumstance from the documentary material that was already before it at the Review Hearing.

16.     The Federal Circuit Court also failed to take into consideration the Application heard on 4 February 2019 to adduce and to tender new evidence (the closed bank statements in question) to reach a judgement that was fair and just for the two children.

17.     A fair-minded lay person, with access to the totality of the material facts of this case and the 3000 or more s.46 documents would have come to a different conclusion for procedural fairness and the administration of justice for the children’s Human Rights.

  18.     Inconsistent finding of facts:

a.     Amended tax returns were provided to the AAT by the Applicant as per Paragraph 38 of Reasons for Judgment 6 March 2019. The Applicant contradicts Paragraph 38 of the Judgement on 6 March 2019, to say that it was a material error and had a totality resultant effect of a gross miscarriage of justice because the AAT had abundant material taxation documents from both parties for which to base the Applicant’s true income as an undischarged bankrupt and full time student status and the Respondent Father’s extremely high income as a Director of a Registered Company and foreign incomes, to have reached just and equitable decisions for the children’s Human Rights to be adequately supported by both parents,

b.     As per Paragraph 37 of Reasons for Judgement 6 March 2019 and Paragraph 7 of AAT Decisions on 14 June 2018, the Applicant was never asked by the AAT to clarify her alleged expenditure from her family law proceeding Federal Circuit Court of Australia Financial Statement Affidavits. If the Applicant had been questioned and asked to clarify, the facts would have been that she had included her personal and business expenditures during her obligations for full disclosure whilst she was running her dental clinic in Bendigo, which closed after her Bankruptcy Sequestration in August 2016.

c.     As per Paragraph 7 of the AAT Decisions on 14 June 2018, these closed bank statements as the “source of all the funds” were provided in her Application to adduce and tender new evidence that was heard and dismissed on 4 February 2019. Had the Federal Court allowed the Application to adduce and tender new evidence and had inspected the closed bank statements, a fair-minded observer would have concluded that the Applicant was simply transferred the same small funds between accounts to generate a false impression of large amounts that were mentioned in Paragraph 7 of the AAT Decisions.

(Citations omitted except where expressly set out.)

17    The Registrar submits as follows:

Proposed ground one

18.     The first proposed ground of appeal is that the Tribunal’s decision/s were legally unreasonable and attended by jurisdictional error, as the Tribunal failed to afford the applicant common law procedural fairness by not granting an adjournment to obtain closed bank accounts and other non-readily accessible documents that were not in the applicant’s possession.

19.     The applicant’s submissions (AS) seek to expand this ground of appeal alleging that the Tribunal’s dismissal decision failed to give proper weight to relevant factors (AS [4]); failed to take into consideration that its dismissal under s 42A of the AAT Act, without granting an adjournment, may have breached the children’s human rights (AS [7]); and that the Tribunal failed to review the merits in relation to the human rights of the children (AS [10]).

Legal unreasonableness

20.     The Tribunal’s discretionary powers to adjourn the review (s 40(1)(c) of the AAT Act), and/or to dismiss an application where an applicant fails to comply with a direction of the Tribunal within a reasonable time (s 42A(5) of the AAT Act), must be exercised reasonably [citing Kaur v Minister for Immigration and Border Protection [2016] FCA 132].

21.     A discretionary power may be exercised unreasonably where the Tribunal’s decision “lacks an evident and intelligible justification” or is “arbitrary, capricious, without common sense or plainly unjust” [citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [23], [76] and [28]]. Whether the Tribunal’s exercise of its discretion can be considered to be unreasonable at law requires an evaluation of the evidence including any inferences which may be drawn from that evidence [citing Minister for Immigration and Border Protection v Singh (2014) 308 ALR 280; [2014] FCAFC 1 at [41]].

22.     There is nothing in the available evidence, including the transcript of the Tribunal hearing that the applicant filed as part of the primary review proceedings (transcript) (BD 16-37), which indicates that the applicant sought an adjournment of the Tribunal hearing in order to comply with the directions; so much is expressly noted by the Tribunal (BD 5, T[9]) and the FCC (BD 58, J[48]).

23.     The transcript indicates that the applicant was unsure whether the Tribunal had access to all of her evidence and that she was unable to locate specific documents when requested to do so by the Tribunal (BD 28-32: T13 [40]; T14 [5], [45]; T17 [5]). Accordingly, the Tribunal adjourned the hearing for approximately half an hour to allow the applicant time to cross check the emails and attachments which she had sent to the Tribunal (BD 32, T17 [40]). When the matter resumed, the Tribunal questioned whether the applicant had sufficient time to review her documents, to which the applicant responded “I had as much time as I needed today” (BD 33, T18 [1]-[4]). Having confirmed that the applicant had sufficient time to review her documents, the Tribunal was not obliged to adjourn the hearing of its own motion. The fact it did not do so was in no way legally unreasonable in the circumstances.

24.     Having regard to the Tribunal’s decision record and the transcript, the Registrar submits that the FCC was correct to find that the Tribunal exercised its powers reasonably (BD 59, J[53]).

Procedural fairness

25.     The applicant also alleges that the Tribunal failed to afford her common law procedural fairness by not granting an adjournment. Contrary to this allegation, it is apparent that the Tribunal invited the applicant to attend a directions hearing; made a direction which required the parties to produce specified documents; considered the documents produced by the applicant; enabled the applicant and respondent to attend and give oral evidence at a final hearing; and provided the applicant with a short adjournment during the final hearing to allow her to cross-check the documents she had provided with those on the Tribunal file (BD 53-55, J[37], J[40]).

26.     The transcript records that the Tribunal asked the applicant on five separate occasions whether she had complied with the directions and/or why the Tribunal should not dismiss the applications for non-compliance with the directions (BD 25-35: T10 [45]; T14 [43]; T15 [15]; T19 [11]; T20 [21]). The applicant was afforded an opportunity to respond on each occasion. The applicant was also afforded an opportunity to make any final oral submissions prior to the Tribunal reserving its decision (BD 36, T21 [35]). The applicant did not request an extension of time to comply with the directions nor did she request an adjournment of the hearing.

27.     Having regard to the conduct of the Tribunal and the transcript of the hearing, the Registrar submits that the FCC correctly found that no denial of procedural fairness or failure to accord natural justice to the applicant occurred (BD 58, J[50]).

Failure to consider merits/ children’s human rights

28.     The applicant’s contention that the Tribunal failed to have regard to the merits in relation to the human rights of the children is misconceived. Firstly, the applicant never advanced such a contention before the Tribunal. The Tribunal was not obliged to consider a claim not raised, nor one clearly arising on the material before it. Secondly, such a matter was not a relevant consideration for the Tribunal in exercising its power under ss 42A(5)(b) of the AAT Act, which allowed the Tribunal to dismiss an application for review without proceeding to review the decision, where the applicant failed to comply with a Tribunal direction.

29.     Accordingly, there was nothing unreasonable in the Tribunal’s decision to dismiss application nos.:2017/MC013167 and 2018/HC013266 under s 42A(5) of the AAT Act, without proceeding to the review the merits of the underlying decisions in circumstances where the applicant had reasonable time to comply with the directions; the documents the subject of the directions were all relevant to the Tribunal’s review; and the applicant was on notice that the applications may be dismissed without further review if she failed to comply with the directions.

30.     The Registrar submits that the Tribunal’s reasoning provided an evident and intelligible basis for the exercise of its discretion and that its decision to dismiss the applications was within the area of its decisional freedom. Having regard to the Tribunal’s decision record and the transcript, the Registrar submits that the FCC correctly found that there was nothing unreasonable in the Tribunal’s decision to dismiss the applications without proceeding to review the underlying decisions(BD 59, J[53]).

Proposed ground two of appeal

31.     The second proposed ground of appeal alleges that it was legally unreasonable for the primary judge not to consider:

   a.    the unreasonableness of the Tribunal;

b.    all relevant material before it, in particular the 3000 or more pages of s 46 documents; and

c.    the interlocutory application to adduce and to tender new evidence by way of the closed bank statements.

32.     The first particular to proposed ground two fails at a factual level, as it is evident from the primary judgment, that the FCC considered the reasonableness of the Tribunal’s conduct and reasons, finding that “the Tribunal did exercise its powers reasonably…Further…there was nothing unreasonable in the Tribunal’s decision to dismiss the applications without proceeding to review the underlying decisions…” (BD 59, J[53]).

33.    The second particular to proposed ground two, contends without sufficient particularity, that the primary judge failed to consider all the evidence before her. Whilst a failure to consider a claim (or in specific circumstances) evidence can constitute jurisdictional error, the applicant has not identified the claims or evidence that the primary judge allegedly failed to consider or ignored, and on the materials, it not apparent that her Honour did.

34.     The primary judge recorded that the applicant relied upon affidavits sworn on 12 July 2018, 3 October 2018 and 15 October 2018, together with written submissions dated 19 October 2018, and that the Registrar relied upon an upon [sic] an affidavit of Ms Danielle Nicholson sworn on 29 October 2018 (BD 47, J[4]-[5]). The primary judge set out a comprehensive background to the proceeding (BD 47-55, J[8]-[37]), finding, that the Tribunal did in fact have before it notices of assessment for the financial years ending 30 June 2015 and 30 June 2016 (assessments). However the primary judge was of the view that this error of fact was not a material error when considering the extent of the applicant’s non-production and the totality of the Tribunal’s reasons, read as a whole (BD 55, J[38]). Having considered the transcript of the Tribunal hearing (BD 55- 58, J[41]-[47]), the primary judge dismissed all … of the alleged grounds of appeal. The Registrar submits no error on the part of the primary judge is revealed.

35.     The third particular to proposed ground two refers to the primary judge’s dismissal of the applicant’s interlocutory application to re-open the proceeding for the purpose of adducing further evidence which was not before the Tribunal (BD 39; BD 44, J[1]). The primary judge’s task was to identify whether there was any error of law in the Tribunal’s decisions. In undertaking judicial review, her Honour was unable to undertake a review of the merits of the Tribunal’s decisions and nor was evidence that was not before the Tribunal when it made its decision relevant to her Honour’s consideration of whether the Tribunal’s decision was infected by an error of law.12 Her Honour dismissed the application as no error was apparent in the Tribunal’s decision. No appellable error is established by this particular.

18    The Applicant’s reply submissions are as follows (unaltered):

14.    The Applicant’s Grounds of Appeal are based on legal unreasonableness on the overall conduct of the tribunal and the primary judge in their failure to consider all the fundamental facts that were before the tribunal and the court to make just and equitable judgements in accordance to the purpose of the legislative stature of the Child Support (Assessment) Act 1989, and her assertions that the Tribunal and subsequently, the primary trial judge, Judge Hartnett, had failed to take into consideration for legal reasonableness, the excessive and fundamental 3000 pages of financial documents that made up the bulk of s.46 evidentiary documents (that were before the Tribunal and subsequently, the primary judge on review which were annexed to the Applicant’s Affidavit sworn 15 October 2018) to make just and equitable decisions for the two children of the marriage, Kieran and Michael, in accordance to the legislative purpose of the Child Support (Assessment) Act 1989 (Cth) and in accordance to the children’s Human Rights under the United Nations Convention of the Rights of the Child, Article 3:

Article 3:

1.     In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

15.     The Applicant asserts that the original tribunal had ample evidentiary documents of both parents before it in the bulk of the s.46 documents to make a just and equitable decisions for the best interests of the two children of the marriage to be adequately supported by both parents, in accordance to the purpose of the legislative statute of the Child Support (Assessment) Act 1989, from which the jurisdiction to hear the review the Applicant’s Applications for Change of Assessment to Child Support Contribution had been granted to the tribunal by legislation by the Administration Appeal Act 1975.

16.     The Department of Human Services Child Support Agency had twice refused under Section 98E, Child Support (Assessment) Act 1989 to make a decision for Change of Assessment for Child Support on the basis that the parties’ family law circumstances were too difficult for the Second Respondent to make such decisions (see s.46 documents annexures attached to the Applicant’s Affidavit filed 15 October 2018, MLG2120 of 2018, Federal Circuit Court of Australia).

17.     The First Respondent was earning a taxable income of approximately $105,000 p.a. Yet the Second Respondent had failed to change the assessment for appropriate contribution for the children. The Second Respondent had continued assessment of child support contribution from the First Respondent at approximately $110 per child per month from July 2014 to December 2015, in breach of the children’s Human Rights as they were left homeless and living in poverty (Refer to Annexure. s.46 documents Applicant’s Affidavit filed 15 October 2018)

18.    The original tribunal had dismissed the review applications for Change of Assessment for Child Support on the very basis of the Applicant’s alleged non-compliance to its direction to supply bank statements and notice of tax Assessments.

19.    Subsequently during trial, the primary judge had acknowledged that Amended Notice of Tax Assessment were available to the tribunal. The only outstanding issue was the closed bank statements as the tribunal had stated as its main reason for dismissal was that it could not determine the Applicant’s financial resources to make a determination.

20.     However, the trial judge had erroneously dismissed an Application in a Case to adduce evidence to tender the closed bank statements on 4 February 2019.

21.    The High Court in various case law cases had stated that for proper administration of justice, further evidence that was not available during the original trial or hearing, should be allowed to be adduce in subsequent proceedings. The Applicant assert that the refusal by the review judge, Judge Hartnett to accept the tendering of further evidence of the closed bank statements was a miscarriage of justice, improper procedures which consequently was fundamental to the dismissal of the review of the original tribunal’s decisions.

22.     The Applicant asserts that in the event this Honourable Court fails to find a case of legal unreasonableness on the conduct of the tribunal and the primary Judge, then there is no further recourse for justice for the gross and substantial miscarriage of justice to the Applicant and the two children of the marriage.

(Emphasis in original, citations omitted.)

Discussion

Ground 1

19    Proposed Ground 1 contends that the Tribunal committed jurisdictional error by unreasonably “failing to afford the Applicant procedural fairness at common law by not granting [the Applicant] an adjournment to obtain closed bank accounts and other non-readily accessible documents” that were not then in her possession. The ground as articulated is expanded in the Applicant’s submissions to encompass a claim that the Tribunal failed to give proper weight to the relevant factors, that the dismissal decision had potentially breached the children’s human rights, and that the Tribunal failed to consider the merits in relation to the children’s human rights.

20    In assessing the Applicant’s submissions, I have had regard to the transcript of the proceedings before the Tribunal on 14 June 2018 as appears in the bundle of documents filed by the Registrar. Contrary to the Applicant’s submissions, there is nothing that arises on the material before me to suggest that the Tribunal’s reasoning lacked an evident and intelligible justification, or was arbitrary, capricious, without common sense or plainly unjust, as set out in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [23], [28] and [76].

21    The Applicant, having had her attention drawn by the Tribunal to her non-compliance with the 19 April 2018 directions, did not request an adjournment in order to obtain and provide the outstanding financial records. The Tribunal, on its own motion, adjourned the proceeding for half an hour in order to allow her to cross-check the emails she had sent to the Tribunal against the documents on the Tribunal file. Following that adjournment, the Applicant advised the Tribunal that she had had as much time as she needed that day. She was still not in any position to direct the Tribunal to, or produce, all remaining financial records that had been requested. Even then, she did not request a further adjournment.

22    It is not in dispute that the Applicant had been invited to attend the directions hearing, at which the Tribunal issued directions. The covering letter later sent to the Applicant with the directions, and the directions themselves, advised the Applicant that non-compliance could result in dismissal.

23    The transcript of the Tribunal proceeding makes it evident that it had considered all of the material provided by the Applicant and gave her the opportunity to make submissions as to those documents and classes of documents she had failed to provide. It can be accepted, as concluded by the primary judge, that the Tribunal was wrong to have identified two Notices of Assessment as amongst the specific documents that the Applicant had been required to, but had not produced. However, it was not suggested before the primary judge, nor is it suggested in these proceedings, that there had been substantial compliance with the directions. Nor was it suggested before the primary judge or contended in these proceedings that the documents which were not produced had not been required to enable the Tribunal to conduct its review fairly as between the parties.

24    There is nothing to suggest that the primary judge erred in finding that the Applicant was not denied procedural fairness. The Applicant’s proposed appeal ground, based on her claim of denial of procedural fairness, does not have sufficient prospects of success to justify the grant of an extension of time.

25    With respect to the Applicant’s contention that the Tribunal’s decision may have breached the children’s human rights, or that it failed to have regard to the merits “in relation to” their human rights, I accept the Registrar’s submission that such a claim was not advanced before the Tribunal. Nor, in my opinion, did such a claim arise on the materials before it by implication.

26    All that occurred was that the Tribunal exercised its power to dismiss the Applicant’s applications pursuant to s 42A(5) of the AAT Act having regard to her failure to comply with a direction made by it in such circumstances. The Tribunal was not required to go further so as to embark on a consideration of the merits, particularly when, by reason of the Applicant’s default, it lacked the body of materials it regarded as necessary for it to do so.

27    I am unpersuaded that any aspect of proposed Ground 1 has sufficient prospects of success to warrant an extension of time being granted.

Ground 2

28    This ground appears to assert that it was legally unreasonable for the primary judge not to have found that the Tribunal had failed to consider all 3,000 pages of material before it. It may also be understood to allege that the primary judge fell into error by not having permitted the Applicant to adduce further evidence.

29    I am unpersuaded that the first aspect of proposed Ground 2 has any prospects of success. The primary judge gave detailed consideration to the proceedings before the Tribunal before concluding at [53] that the Tribunal’s power to dismiss the applications had been exercised reasonably. In those circumstances, nothing turned on whether the Tribunal had or had not given consideration to each of the 3,000 pages of materials that were before it. What was critical was the material that the Applicant had failed to adduce despite the Tribunal’s directions, not that which she had. The Applicant has not identified any material that she contends the primary judge overlooked in that regard. As contended by the Registrar, the primary judge explicitly referred to the affidavit material relied upon by the Applicant, together with submissions and an affidavit filed on behalf of the Registrar.

30    With respect to the contention that the primary judge erred in failing to reopen the proceeding for the purpose of allowing the Applicant to tender further evidence, I accept the submission advanced on behalf of the Registrar that the task of the primary judge was not to undertake merits review, but rather to identify any legal error on the part of the Tribunal. Assuming the Tribunal had been correct in dismissing her applications because of her non-compliance with its directions, evidence going to the potential merits of the applications she had had before the Tribunal could not assist the Applicant in her proceedings before the FCCA. The Applicant, having failed to comply with a direction of the Tribunal resulting in her applications being dismissed, was not entitled to adduce the material she had been directed to produce to the Tribunal and then have the primary judge effectively conduct merits review of the substantive applications she pursued before the Tribunal.

31    I am accordingly unpersuaded that proposed Ground 2, in each of its aspects, has sufficient prospects of success to warrant the grant of the extension of time sought.

Application 2018/HC013241

32    There is no ground of appeal directed to the primary judge’s reasoning with respect to the above Tribunal proceeding. In any event, I have identified nothing to suggest that the primary judge was in error in failing to find that the Tribunal unreasonably failed to consider material relevant to the assessment of the Applicant’s adjusted taxable income. In that regard, her Honour reasoned as follows:

41.    The transcript of the Tribunal hearing on 14 June 2018 is before the Court in evidence and annexed to the affidavit of the Applicant sworn 3 October 2018 marked annexure “#P-1 to #P-23”. It is clear from that transcript that the Applicant was asked in respect of one application before the Tribunal whether there were any other documents that she relied upon, to which she respondent “No, not for this application.”. That answer was given in respect of review number 2018/HC013241.

(Footnote omitted.)

33    The Applicant has not put anything before this Court to support a contention that the primary judge erred in finding that the Tribunal had properly disposed of application 2018/HC013241. In so far as the Applicant’s grounds of appeal might be understood to extend by implication to that proceeding, I would dismiss it.

Disposition

34    The application for an extension of time within which to appeal is dismissed with costs.

35    The Court notes that at an earlier point in time, the Applicant applied for interlocutory orders and filed materials in support. Her application for interlocutory orders was later withdrawn. In those circumstances, the Court has had no regard to any of the materials filed in support of that application.

Associate:

Dated:    12 August 2019