Federal Court of Australia

Ellis v Secretary, Department of Social Services [2022] FCA 1047

ORDERS

THE COURT ORDERS THAT:

1.    The second respondent’s decision and reasons for decision in 2020/M145832 be marked as exhibit A1 in the proceeding.

2.    The applicant have leave to review in this proceeding the second respondent’s decision in 2020/M145832 and in 2020/H146157, each made on 4 May 2020.

3.    The judicial review application of the second respondent’s decision in 2020/M145832 and in 2020/H146157, each made on 4 May 2020, be dismissed.

4.    There be no order as to costs.

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

REASONS FOR JUDGMENT

MORTIMER J:

1    The applicant in this proceeding, Linda Ellis, seeks an extension of time in which to bring a judicial review application in respect of two decisions of the Administrative Appeals Tribunal under the Judiciary Act 1903 (Cth).

2    The judicial review application must be dismissed. Ms Ellis has misconceived the powers of this Court to address her underlying complaints, which are not so much about the two Tribunal decisions as they are about the obviously distressing family circumstances which sit behind them.

Brief procedural history

3    Early in the proceeding, orders were made with the agreement of the parties regularising the appropriate respondents to the proceeding. The first respondent, the Secretary to the Department of Human Services, concedes they are the appropriate respondent.

4    As I explain below, there was some confusion about which decisions of the Tribunal Ms Ellis sought to review. Eventually, it became clear she sought to challenge two Tribunal decisions. In the interests of settling all disputes between the parties, and to bring some finality to Ms Ellis’ claims about the Tribunal’s decision-making, the Court permitted her to do this. These decisions were described by Ms Ellis as the “M” and the “H” decisions, using the letter with which the file number on each Tribunal review proceeding commences: 2020/H146157 (H decision) and 2020/M145832 (M decision).

5    For a short time, Ms Ellis had a third proceeding before the Tribunal, which was by way of an application for a ‘second review’ of the H decision. This process was available to Ms Ellis by reason of s 179(1) of the Social Security (Administration) Act 1999 (Cth). Ms Ellis notified the Tribunal that she withdrew this application, and it was dismissed. It appears from documents attached to Ms Ellis’ second affidavit that this withdrawal occurred after an offer from the Secretary to waive the recoverable debt of family tax benefit of $770.56, being the sum the Tribunal had decided, in the H decision, was the reduced sum payable by Ms Ellis. Ms Ellis rejected the offer, these documents indicate, but nevertheless also withdrew her second review application.

6    The Secretary did not submit that the existence of this appeal process, or the withdrawal of an appeal by Ms Ellis, prevented Ms Ellis from relying on this Court’s jurisdiction under s 39B of the Judiciary Act to review the Tribunal’s H decision. Had there been any grounds of review which the Court had found were made out, there may have been a question whether relief should be refused as a matter of discretion. As I explain, that point has not been reached and it is unnecessary to deal with it.

7    To assist the Court and the Secretary to understand the challenges made to the Tribunal’s decision-making, the Court directed that Ms Ellis file a concise statement. She did so. The Secretary also filed a concise response. The Court has been assisted by both documents.

8    A pro bono referral was made for Ms Ellis on 7 January 2022, which was accepted by counsel on 13 January 2022. However, counsel ceased to provide legal assistance on 7 February 2022 with Ms Ellis’ agreement pursuant to Federal Court Rules 2011 (Cth) r 4.15(1)(a).

9    Thereafter, Ms Ellis remained self-represented. It is apparent from the evidence that Ms Ellis has had the assistance of advice from a number of community legal organisations, and lawyers, over the years, about what has happened between her, her ex-partner and her son. I accept she may feel she has not been listened to in terms of what her real complaints are, but I am also satisfied she has had access to legal advice, although I infer she may not have received the advice she wanted to hear.

10    In order to reduce the anxiety Ms Ellis was clearly feeling about representing herself in the Federal Court, I did not require her to file any written submissions in advance of the hearing. Instead, I explained to Ms Ellis she could simply come along and tell the Court and the Secretary what her grievances were with the two Tribunal decisions. I explained to Ms Ellis the judicial review function of this Court in relation to Tribunal decisions, and the limits of that function. These explanations were given during case management and at trial. Ms Ellis indicated she understood those explanations, although I am not entirely convinced she wishes to accept what was said to her.

11    The Secretary did not object to the process the Court took. They made helpful submissions on the H decision. They did not address the M decision in writing, but did address it orally at the hearing.

12    The trial in the proceeding was conducted over two separate days in July 2022, the hearing on the first day being adjourned at Ms Ellis’ request and with the agreement of the Secretary.

13    One further matter which should be mentioned is that, at the final hearing, counsel for the Secretary informed the Court, and Ms Ellis, for the first time that she was the daughter of a Tribunal Member who had made a procedural decision in Ms Ellis’ review. Ms Ellis was understandably taken aback. Ms Ellis made no formal objection to counsel continuing in the proceeding, so the matter was not taken any further. Nevertheless, it is undesirable, in a situation where a government party is represented by solicitors and counsel, and another party is self-represented and clearly in unfamiliar territory, that such matters are not proactively addressed at an early stage so that there are no mistaken apprehensions about some kind of inappropriate connections or influence. Especially so where litigants in the position of Ms Ellis can readily fail to appreciate the separation of powers and functions as between the Court and the Tribunal.

The evidence

14    The parties each relied on a number of affidavits.

15    Ms Ellis filed the following affidavits:

(a)    two affidavits of Ms Ellis dated 22 November 2021 and filed on 8 December 2012; and

(b)    an affidavit of Ms Ellis dated 5 January 2022 and filed on 7 January 2022.

16    In light of Ms Ellis being self-represented, I have taken these affidavits to have been read for the purposes of the proceeding.

17    The Secretary read an affidavit of Kate Gawidziel, dated 14 July 2022 and filed the same day. Annexure KEG-1 of that affidavit contained a copy of the transcript of the hearings of Ms Ellis before the Tribunal on 4 May 2022 (Tribunal transcript). The Court is grateful for the production of this transcript, which has assisted it in understanding what occurred before the Tribunal.

18    At trial, Ms Ellis tendered a copy of the M decision, annotated with what she suggested were her own personal notes. It was also revealed at trial that Ms Ellis had attached a copy of those reasons for decision to the draft originating application sent to the Court’s Registry. In light of my reasons at [19]-[26] below, it is appropriate that that copy of the reasons for the M decision be marked as an exhibit and uploaded to the Court’s electronic file for the proceeding. An order to this effect will be made.

The impugned decisions

19    The originating process in this proceeding is a Form 67, being an application for an extension of time under r 31.02(1) of the FC Rules. The extension of time application is dated 22 November 2021 and was filed on 8 December 2021. That document, which is largely hand-written, was not accompanied by an affidavit specifying the decision that Ms Ellis sought to have reviewed. The first page of the originating application did, however, include a reference to the M decision.

20    Ms Ellis’ affidavit which accompanied the extension of time application was also largely hand-written. It referred to a number of provisions of the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth), but what was written does not on its face bear any relationship to a decision of the Tribunal.

21    In her second affidavit, dated 22 November 2021, dealing with the reasons why her judicial review application was not filed on time, Ms Ellis again refers to the M decision.

22    The draft originating application, which was not, it appears, filed or served on the respondents by Ms Ellis, but which was given by Ms Ellis to the Court’s Registry, attached a copy of the M decision.

23    At least up until the second day of trial in this proceeding, on 15 July 2022, there has been a lack of clarity about precisely which decisions Ms Ellis has sought to have reviewed. As became clear at trial, Ms Ellis seeks the review of two decisions, being the H decision and M decision.

24    At the first case management hearing on 11 February 2022, Ms Ellis indicated that the decision she was concerned about was made by the Tribunal on 4 May 2022. Both H decision and M decision were made on 4 May 2022. The Secretary indicated that they were aware of the H decision, and the Court requested that the Secretary file and serve a court book containing that decision. The Secretary helpfully did so.

25    Subsequent to that first case management hearing, the Court also made orders on 11 February 2022 for the filing of concise statements by Ms Ellis and by the Secretary. Ms Ellis filed a concise statement on 24 February 2022. Relevantly, Ms Ellis’ concise statement specified that she sought review of both the H decision and M decision:

Decision I would like[] the court to review are 2020/h146157 [H decision] & 2020/M145832 [M decision].

26    At least since this date, the Secretary was on notice that Ms Ellis sought review of both the H decision and M decision. As a well-resourced government party, and as I indicated at trial (transcript at p 25, ll 41-42), it would have been helpful for the Secretary to conduct inquiries to obtain a copy of the M decision and include it in the court book documents before the Court. Ms Ellis took reasonable steps to indicate that she sought review of the M decision in addition to the H decision, and as I indicated at trial, it is appropriate for both decisions to be considered on this application for review.

Some factual background

27    Although not directly relevant to the grounds of review, in order to understand how and why Ms Ellis has ended up with a proceeding in this Court, it is necessary to set out some of the key events she described to the Court, which are also set out in the Tribunal’s reasons in the H decision, and the subject of its M decision.

28    In 2014, Ms Ellis’ son, who I will call ‘S’ in these reasons, was around 13 years old. Ms Ellis and S’s father had separated when S was a baby, had briefly reunited while he was at primary school, but had then separated again. S primarily lived with Ms Ellis, and there were a variety of access arrangements with S’s father over the years, some of which required Family Court orders. By June 2013, a Family Court consultant report was prepared, which Ms Ellis annexed to one of her affidavits in this proceeding. Also annexed to Ms Ellis’ affidavit was various correspondence from solicitors which demonstrated that disputes about S being with one parent or the other continued after this date. Final orders were made by the Family Court on 2 July 2013, by consent (July 2013 Family Court orders). By those orders Ms Ellis and S’s father were to have shared parental responsibility for S, he was to live with Ms Ellis and spend specified time with his father, all of which was set out in the orders.

29    On 25 July 2014, S left Ms Ellis’ residence. From this point onwards, he began living with his father. At this stage, S was still 13 years old. It is clear on the evidence before the Court that Ms Ellis and her partner have expressed different accounts about what happened on this day, and why it happened. It is not necessary in public reasons to set out these matters in any detail. The upshot was that S went to live with his father. Ms Ellis tried to get her son back. Those efforts were not successful. Again, for the purposes of this decision there is no need to set out the competing factual allegations about what happened.

30    At this time, namely July 2014, Ms Ellis was being paid family tax benefit on the basis that she had 62% care for S: see [2] of the Tribunal’s reasons in the H decision.

31    There is a Centrelink claim form in evidence, filled out by S’s father and dated 12 September 2014, where S’s father claims family assistance payments for S on the basis that S is living “100%” of the time with him. On the form, S’s father dates this care arrangement from 21 July 2014 – “approx.”. In answer to a question whether there are any court orders or agreements about where the child is to live, S’s father has ticked the box “no”. Clearly, there were the July 2013 Family Court orders, but they are not referred to by S’s father.

32    On 21 January 2015, a departmental officer decided that Ms Ellis had a family tax benefit debt of $3,570.89 in respect of payments made for the period of 21 July 2014 to 27 November 2014 because S had left her care on 21 July 2014. This officer’s decision about the family tax benefit debt became (after internal review) the reviewable decision before the Tribunal. Ms Ellis contended during the hearing before the Court, and to the Tribunal at the review hearing, that the date of 21 July 2014 was incorrect, and the correct date was 25 July 2014. That may be the case, as the Tribunal’s decision recognises, but a mistake about a 3 day period was, in the circumstances, not the main issue.

33    The Tribunal held a review hearing on 4 May 2020. It was a telephone hearing because of the COVID-19 pandemic. In this case, the Tribunal did the best it could in difficult circumstances to ensure a fair process, but it is unsurprising that Ms Ellis found the process a difficult one. The transcript of the Tribunal hearing indicates it was carefully and fairly conducted by the Tribunal Member.

34    As the Tribunal Member explained to Ms Ellis and her ex-partner, who both attended by telephone, the purpose of the payment of family tax benefit to parents is “usually based on what care [by parents or caregivers] is actually taking place”: see Tribunal transcript at p 14, ll 44-45.

35    Therefore, in order to review the decision concerning the family tax benefit debt of $3,570.89, the Tribunal needed first to decide what care of S was taking place from July 2014, as between Ms Ellis and S’s father.

M decision

36    The M decision was therefore what the Tribunal described at [9] of its reasons as an “anterior” decision. It was the topic of the first part of the Tribunal hearing on 4 May 2020, in which S’s father participated.

37    The M decision was made on the same day, although the Tribunal’s reasons (M reasons) were delivered, it appears, in writing at a later date.

38    In the transcript of the review hearing, the Tribunal explained the process in this way (Tribunal transcript at p 2, ll 15-23):

MEMBER: Okay. Well, we’re going [to] have actually two hearings today. So, we’re going to have one hearing where [S’s father] is involved and will be able to hear what is said and, in that hearing, we’ll just be talking about the care arrangements for [S] when he left your care and what you did to try to get him back into your care. At the end of that hearing, I will hang up, and that will disconnect [S’s father] from the phone conference, and then I will call you straight back and just you and I will have a talk about the debt and whether or not you should have to repay the debt and what you did to tell Centrelink about the change of care arrangement.

39    Having reviewed the evidence, the Tribunal made a decision that:

The tribunal set aside the decision under review and, in substitution, decided that the following percentages of care should be applied regarding [S]:

•    From 25 July 2014 to 30 October 2014 an interim care determination should apply pursuant to section 35C of the A New Tax System (Family Assistance) Act 1999 (Cth), such that Miss Ellis' care percentage is 62% and [S’s father]'s care percentage is 38%; and

•    From 31 October 2014 onwards the care determinations are such that Miss Ellis' care percentage is 0% and [S’s father]'s care percentage is 100%.

40    In other words, despite S having left Ms Ellis’ residence in July 2014, the Tribunal accepted much of Ms Ellis’ evidence about the care she provided to S after this date, and the steps she took to try to have him returned to living with her. This decision was favourable to Ms Ellis, compared to the internal review decision. This decision was based on the Tribunal’s assessment of the fact that a “care arrangement” was not being complied with after July 2014 and that Ms Ellis had taken reasonable action to have the care arrangement enforced: see M reasons at [15].

41    The Tribunal found the July 2013 Family Court orders were a “care arrangement” for the purposes of the A New Tax System (Family Assistance) Act 1999 (Cth): see [16] of M reasons. In other words, the Tribunal was fully aware of the Family Court orders in Ms Ellis’ favour and took them into account in its decision-making.

42    The interim care arrangement that the Tribunal found existed after 25 July 2014 could, by operation of the terms of the Family Assistance Act, only apply for a period of not more than 26 weeks, provided there were special circumstances. The Tribunal was not satisfied of any special circumstances beyond 30 October 2014, so that is the date it selected as the date when S’s father should be regarded as having 100% care of S: M reasons at [24].

43    The Tribunal referred to the M decision in its H decision at [9]-[10]:

I also concluded that those “anterior decisions” necessary to establish the fact and quantum of a debt are an integral part of a review of a decision about a debt (see Secretary Department of Employment Education Training & Youth Affairs v Allen [1999] FCA 25).

I was therefore satisfied that the time limits prescribed by sections 109D and 111A of the Administration Act are not applicable, in this case, to the decision about the debt (review number 2020/H146157) or the anterior decision necessary to establish the fact and quantum of that debt (review number 2020/M145832).

(Emphasis added.)

H decision

44    The H decision was also made on 4 May 2020 by a Member of the Tribunal. As noted above, it appears that the Tribunal’s written reasons (H reasons) were delivered at a later date.

45    The decision records that:

The tribunal set aside the decision under review and, in substitution, decided that Miss Ellis has a recoverable family tax benefit debt of $770.56 in respect of family tax benefit payments made for the period 31 October 2014 to 27 November 2014.

46    The Tribunal identified the questions it had to determine as the following (H reasons at [7]):

•    Does Miss Ellis have a family tax benefit debt; and if so,

•    Should Miss Ellis be required to repay any or all of that debt?

47    The Tribunal decided that, as a preliminary matter, the time limits in s 109D and s 111A of the Administration Act did not apply to Ms Ellis’ application for review by the Tribunal.

48    At [11]-[14], the Tribunal then set out the applicable legislative provisions as to circumstances where a person is entitled to family tax benefit:

Section 21 of the [A New Tax System (Family Assistance) Act 1999 (Cth)] says that to be entitled to family tax benefit a person must have at least one FTB child in their care and be an Australian resident. A child is an FTB child of a person if, amongst other things, the person has care of the child and the circumstances surrounding legal responsibility for the child are satisfied. However, subsection 22(7) of the Act provides that if an individual’s percentage of care for a child during a care period is less than 35%, the child is taken not to be an FTB child of that person.

If there is a pattern of care for a child over a period so that the child will be an FTB child of more than one individual, section 59 of the Act requires that when care is between 35% and 65%, a percentage of care must be determined for each person. Generally, care is calculated over 12 months but can be for a different period if circumstances warrant a calculation of care for a different time frame.

Subsection 58(1) of the Act provides that a person’s annual rate of family tax benefit is to be calculated in accordance with the Rate Calculator in Schedule 1 to the Act. Essentially, the person’s rate of family tax benefit is calculated having regard to the number of children that are in the person’s care and the percentages of care, whether or not they pay private rent and the level of their adjusted taxable income.

Section 16 of the Administration Act allows a person to be paid family tax benefit by instalments (that is, by fortnightly payments) at a daily rate at which the Department considers the person to be eligible.

(Original emphasis.)

49    At [15]-[16], the Tribunal found that Ms Ellis was paid family tax benefit until 27 November 2014 at a rate determined on the basis that she had 62% care of S. This is what created the debt, because the Tribunal found she did not have 62% care of S for all that time. But it did find, favourably to her (in the “anterior” M decision), that her care of S did not stop in July 2014, but continued until 30 October 2014, and for that reason, it found the debt was much less.

50    The Tribunal re-calculated the debt as being $770.56: see H reasons at [17].

51    The next matter the Tribunal considered was whether Ms Ellis should have to repay the debt, or whether the debt should be either written off or waived, both of which were permitted in certain circumstances under the Administration Act. The Tribunal found there were no circumstances justifying either writing the debt off or waiving it, so it found the debt was recoverable: see H reasons at [29].

52    In reality, as Ms Ellis and the Secretary agreed in the hearing before me, Ms Ellis had re-paid the originally calculated debt of $3,750.89. After the Tribunal decision, the Court was informed that what occurred was that the balance of that repayment, minus the $770.56, was refunded to Ms Ellis.

53    Therefore, at the time Ms Ellis sought judicial review of the Tribunal’s decision, she did not have any outstanding debt for family tax benefit.

Some factual matters of importance to Ms Ellis

54    I set out the following factual matters because they are important contextual information to assist in explaining why Ms Ellis has persisted with this application. Despite their obvious importance to Ms Ellis, they have no legal relevance to the judicial review of the Tribunal’s decisions.

55    At some point during the Tribunal review process, Ms Ellis discovered, on the Tribunal file, that a family violence intervention order (FVIO) had been taken out on 29 July 2014 by her ex-partner against her. The order states that Ms Ellis was served with the application and summons, but Ms Ellis denied that was the case. In terms of the narrative Ms Elis gave to the Tribunal at the review hearing, the existence of this FVIO appears to have been part of the reason she could not go and get S from S’s father’s house, assuming (on Ms Ellis’ narrative) that he wished to return to her home. There is no need to make any findings on this matter. Relevantly to the judicial review application (at least, relevantly to Ms Ellis’ concerns on the judicial review application), Ms Ellis was clearly affronted by such orders against her being on the Tribunal’s file, and felt it was unfair to her. This appears to have been one of the triggers for Ms Ellis considering that various government agencies held information on files about her that was inaccurate.

56    It also became clear during the final hearing that Ms Ellis was angry that her ex-partner had provided incorrect information to the Tribunal during the review. She described this as “fraud”. On its face, the information provided by her ex-partner was at least in one respect incorrect. Ms Ellis’ ex-partner ticked “no” when asked if there were any Family Court orders. Clearly, there were Family Court orders. There is no evidence the provision of that information affected the Tribunal’s decisions. While I can understand why Ms Ellis sees it differently, I find the provision of this incorrect information is of no significance to the validity of the Tribunal decisions. The Tribunal did not rely on what Ms Ellis’ partner said in ticking the “no” box. It was conscious there were Family Court custody orders and said so in its reasons: see M reasons at [10], [16].

57    S was seriously assaulted on 25 May 2018. In evidence before the Court is a Victims of Crime Assistance Tribunal award in S’s favour, substantiating the assault and awarding compensation to S. How this assault came about, its effect on S and the course his life took after this assault were all matters Ms Ellis sought to canvass before the Tribunal and before this Court. None of them had a connection in a legal sense with her judicial review, but it is clear that in Ms Ellis’ view they are all connected to what happened in July 2014 when S moved away from her home and began living with his father.

Ms Ellis’ position about the Tribunal’s decisionS

58    Further, it became apparent at the hearing that Ms Ellis did not in fact wish to overturn or change the H decision. She also agreed that the M decision itself was not wrong. These matters became apparent during the hearing. The following is something of a long extract, but it is necessary to see how Ms Ellis herself put her position (transcript at p 31, l 15 – p 33, l 35):

MS ELLIS: It’s because I thought – no. Because I do believe, in my heart of hearts, this is wrong. This is totally wrong that - - -

HER HONOUR: Well, just stop – when you say, “This is wrong”, what you’re really talking about there is what has happened to you and [S].

MS ELLIS: Of course. Yes. Definitely.

HER HONOUR: All right. So because you’ve told me that you actually don’t think the AAT[’s] decision about the family tax benefit – that that’s not worrying you.

MS ELLIS: No. Well – well, I didn’t ask for that.

HER HONOUR: But that’s what this proceeding is about, Ms Ellis.

MS ELLIS: But it wasn’t supposed to be. Because that was on the application on my affidavit when I submitted it to the court. But no one has seen it. But that’s why I kept saying it’s the N [M] decision, not the H decision. And that’s when I spoke to Mr Hutton on the phone. And I said it’s in the affidavit. It’s in my – it’s what I - - -

HER HONOUR: But – but what do you want changed about the N [M] decision?

MS ELLIS: What I wanted was to make sure – look, I want them to know that it’s wrong. Because what they did is against the law.

HER HONOUR: Well, I don’t think you’re saying that what the - - -

MS ELLIS: Anything - - -

HER HONOUR: - - - AAT did was - - -

MS ELLIS: No.

HER HONOUR: - - - against the law.

MS ELLIS: No. And I never said - - -

HER HONOUR: Just have – have you got that – have you got that document with the [M] decision? The one that’s attached to your affidavit. Can you just – have you got that there? Well, this is – you’ve got the copy with the handwriting on it. Yes.

MS ELLIS: Yes.

HER HONOUR: So have a look at that – the front page. Have a look at the front page. So you see that – that tells the court - - -

MS ELLIS: Yes.

HER HONOUR: - - - what the – what [the Tribunal Member] decided. And she decided that there should be a care percentage in your favour of 62 per cent and in your ex-partner’s favour of 38 per cent. And then from October 2014 onwards, it should be 100 per cent in favour of your ex-husband. And that’s what you don’t like. Is that right?

MS ELLIS: No. That’s fine. Because that percentage of care, he – [S] wasn’t in my care.

HER HONOUR: Right.

MS ELLIS: So I don’t – I didn’t – I was saying, “Are you paying me? I don’t want it.”

HER HONOUR: You don’t – you don’t think it was – you don’t think the way [S] got in to his care was - - -

MS ELLIS: No.

HER HONOUR: - - - right.

MS ELLIS: That’s what I’ve said. Yes.

HER HONOUR: But you don’t disagree that he was in his care.

MS ELLIS: That’s right. Yes.

HER HONOUR: Yes. So you don’t really – you’re not saying that that decision that we’re looking at there on that page, those two dot points - - -

MS ELLIS: Yes.

HER HONOUR: Are you saying that that should be different?

MS ELLIS: No. Because he was in his care.

….

HER HONOUR: So you’re not telling me that decision is actually - - -

MS ELLIS: It’s not wrong.

HER HONOUR: - - - wrong.

MS ELLIS: Because he was in his dad’s care. So that money wasn’t to come to me. And then the thing is that the 100 per cent care wasn’t looked at, at how he got him because he signed in the member – in the T documents, he has ticked that there was no court orders. And that should have been picked up.

(Emphasis added.)

59    Ms Ellis explained that what really always troubled her, and drove her to bring these proceedings, was that S should never have been allowed to remain in the care of her ex-partner after July 2014. When she was asked about what made her file a review with the AAT against the internal review decision (which, as I have explained, treated S’s father as having 100% of the care of S after July 2014), Ms Ellis said (transcript at p 27, ll 30-38):

MS ELLIS: He didn’t do his job correctly, because if he had have looked at the paperwork, he would have seen that [S] had Family Court orders protecting him from his father and subpoenaed information from DHS as part of it. And that’s what really upset me, because [S] should have been brought home. And this is why. Because we’ve been in here in the – two – in – sorry, the Family Court in 2013, and – on 2 July, and the orders were there. It was subpoenaed information about the father’s – what’s wrong with him, you know, from DHS, the police, [S]’s school and – there was someone else on there – and they didn’t address it. And what has happened is they didn’t address it and they’ve done the wrong thing.

60    What this comes back to, as Ms Ellis explained elsewhere in the transcript of the hearing, was that no-one picked up what she considered to be the key fact – that she had existing Family Court orders to the effect that S was to reside with her. Hence, as I understand it, why Ms Ellis described what happened as “against the law”.

61    On one view, Ms Ellis’ position might of itself be sufficient to dismiss the proceeding, as it is clear she does not wish for either the M decision or the H decision to be set aside. She does not want to go back to the Tribunal and have another review about her family tax benefit debt. So far as she is concerned, that is all in the past. What continues to trouble her is the underlying factual situation of S going into his father’s care, and what she contends are the terrible consequences for her, and for S, over the last 8 years; consequences flowing (on her view) from serious omissions and mistakes within government administration across several agencies.

62    As I explained to Ms Ellis repeatedly at the hearing, this Court has no function in inquiring into, or making any orders about, that underlying factual situation or its consequences. This is what Ms Ellis has refused to recognise.

63    Accordingly, I propose to deal with the judicial review application on its merits.

Resolution

Grounds of review

64    Ms Ellis has described her judicial review challenges in a number of ways in different documents. In the draft originating application, which she attached to her affidavit in support of an extension of time, she includes allegations such as fraud, abuse of power, abuse of statutory power, defamation, negligence, “ruined a child[’s] + mother[’s] human rights”, and “disobeyed Family law Act”. In her statement of grounds, Ms Ellis refers to a denial of natural justice and – expressed variously – ‘acceptance’ of S’s father’s accounts of what happened in July 2014.

65    The purpose of directing Ms Ellis to file a concise statement was to assist her to clarify for herself, the Secretary and the Court what her real complaints were about the Tribunal’s decisions. As I have explained, it became clear Ms Ellis was not really complaining about the Tribunal’s decisions at all, not even the M decision but certainly not the H decision.

66    Nevertheless, in her concise statement Ms Ellis did articulate some grounds of review, and they are the ones the Court will consider. They are the ones to which the Secretary responded at the hearing. I set them out below.

Extension of time

67    If the relief sought is under the Judiciary Act, there are no time limits prescribed, unlike the Administrative Decisions (Judicial Review) Act 1977 (Cth): see Jadawan Pty Ltd v Rae & Partners (A Firm) [2020] FCAFC 62; 278 FCR 1 at [503(6)]; McAtamney v Superannuation Complaints Tribunal [2016] FCA 1062 at [179]. The Secretary recognised this in their submissions. The Court always has a discretion to refuse relief on account of delay in bringing a judicial review application, but the Secretary did not make any such submission here.

68    If an extension of time were needed, I would have been inclined to grant it. The purpose of exercising that discretion would have been to allow Ms Ellis to advance, in a substantive way, the real matters she wishes to complain about, so as to afford her an opportunity to have a final hearing on those matters. That is what she was given. It advances the interests of justice, in my opinion, to deal with a proceeding such as this, and a litigant such as Ms Ellis who has wide-ranging complaints, in a final rather than an interlocutory way.

69    However, no extension of time was required, as Ms Ellis only sought relief pursuant to the Judiciary Act. I have decided her proceeding must be dismissed, therefore no issue of discretion arises.

The H decision

70    Ms Ellis alleges:

Member made a jurisdictional error of law the word exceptional under the act is to distinguish the case from the ordinary.

The discovery made in my T documents is more than enough to distinguish the case from the ordinary.

71    A similar allegation is made later in the concise statement:

Finally Member Baluch made a jurisdictional error in law the word defined in the act.

A case distinguishes the case from ordinary. The relevance of discovery of document found in T docs is more than enough to distinguish that my case certainly more than an ordinary case.

72    The Secretary submitted, and I accept, that this is a reference to the Tribunal’s refusal to find there were “special circumstances” justifying waiver of the $770.56, as permitted by s 101 of the Administration Act. The Tribunal found (at [27]-[28]):

In every case, the individual circumstances of the case were examined to determine whether the circumstances were such that it would be unjust, unreasonable or inappropriate for the debt to be recovered. In particular, the Full Court of the Federal Court in the matter of Dranichnikov v Centrelink [2003] FCAFC 133 determined that whether there are special circumstances in a particular case is dependent on whether there are circumstances that would distinguish the case from the usual case.

… there is something that distinguishes the case from the ordinary or usual case. Further, for special circumstances to exist there must be some factors apart from financial hardship alone, which distinguish the case and set it apart from other similar cases.

(Original emphasis.)

73    The Tribunal found Ms Ellis’ circumstances were not “so different from others in the community that the discretion provided for in section 101 of the Administration Act can be applied”. That was a factual decision for the Tribunal to make, and the way it made that decision shows no legal error. Ms Ellis asks the Court to form its own views on whether her circumstances were “special”, but that is not part of this Court’s function on judicial review. The Court is confined to whether the decision was made according to correct legal principles and by a fair process.

The M decision

74    As counsel for the Secretary submitted, Ms Ellis’ references in her concise statement to exceptional and special circumstances could also be seen as a challenge to the Tribunal’s finding in the M decision that there were no were no special circumstances to extend to the interim care determination out to its maximum of 26 weeks. If that is what Ms Ellis contends, then I make the same findings as I have in respect of the H decision.

75    At [24] of the M decision the Tribunal found:

I was not persuaded that there were delay in resolving the issues around [S]’s care that would warrant exercising the discretion to extend the duration of the interim care determination due to special circumstances beyond 30 October 2014. Therefore, the interim care determination applies until 30 October 2014.

(Original emphasis.)

76    The date of 30 October 2014 was the end of the period in the legislation which could be applied if the Tribunal was satisfied Ms Ellis was taking “reasonable action” to restore the parenting arrangement. The Tribunal agreed she was. After that, the Tribunal had to find “special circumstances”, and it was not persuaded there were any. Ms Ellis clearly disagrees, but it is the Tribunal’s role to make that decision and form its own views independently, which is what it did.

77    The Tribunal understood what it needed to look for to find special circumstances, and it was a question of fact for the Tribunal whether it considered there were such circumstances. The Court cannot substitute its own opinion for that of the Tribunal. It can only interfere if the Tribunal has not correctly understood the legal principles or the law, or has misapplied it.

Arguments in the concise statement conceivably applicable to both decisions

78    In her concise statement, Ms Ellis makes general allegations such as:

Information submitted to the AAT was full of factual information of fraud and corruption within my Government Files and asked for this to be investigated.

79    I explained to Ms Ellis that this Court has no general investigatory function. I explained its function on judicial review. If by this allegation Ms Ellis means the Tribunal relied on fraudulent information in making its decisions, I reject that submission. The transcript and reasons in both decisions reveal the Tribunal was aware of what Ms Ellis was saying about – for example – the Centrelink form filled in by S’s father. It was aware of what she said about the FVIO. It did not rely on any false or fraudulent information in making its decisions.

80    There is also a general allegation to the following effect:

The ENTIRE decision was adduced by Fraud, BAD Faith, Bias, Procedural Fairness, Breach of rules and Unjust Corruption.

(Original emphasis.)

81    Having read the transcript of the Tribunal hearing and both sets of reasons, there is no basis to find that the Tribunal denied Ms Ellis procedural fairness. To the contrary, as I have found earlier, the Tribunal Member conducted a fair and patient hearing, and gave two carefully reasoned decisions.

82    While it appears from the concise statement, and also from what Ms Ellis said during the judicial review hearing, that at some stage Ms Ellis encountered a sympathetic person at the Administrative Appeals Tribunal who listened to her story with compassion (and, I infer, Ms Ellis saw as supporting her), Ms Ellis cannot use any such conversation to prove that the Tribunal Member did not perform her role according to law. It is appropriate that those officers within the Tribunal who deal with review applicants are sympathetic and understanding. That attitude says nothing about whether review applicants will be successful. It is simply part of fair administration. As it turned out, Ms Ellis was mostly successful in any event.

83    Insofar as Ms Ellis alleges in her concise statement that S’s father was lying, or was “caught” lying to the Tribunal, it was up to the Tribunal, as the merits decision-maker, to decide what evidence it accepted and what it did not. It did not accept all of S’s father’s evidence. It also did not accept all of Ms Ellis’ evidence. Those choices were for the Tribunal, not this Court.

84    There are a number of allegations in the concise statement about the Tribunal’s performance of its function which are of the kind also made to this Court; namely, that the Tribunal did not investigate the wrongs and injustices Ms Ellis argued had occurred because of what happened in July 2014. For example:

Child[’s] best interests were severely neglected assisted by Govt officials and a criminal all evidence in T documents in front of Member.

85    As they did in relation to this Court, these arguments misunderstand the Tribunal’s function. The Tribunal had a limited function – to review a particular decision about family tax benefit. That is all. It did so favourably to Ms Ellis, compared to the internal review decision. It may not have been as critical of S’s father as Ms Ellis would have liked. It did not embark on any inquiry about what had happened to S. But that is because it was not its function to do so. This, it seems to me, is what Ms Ellis refuses to accept.

86    There are other statements, such as “The Commonwealth officers of Government need to be held accountable” which, while no doubt genuine beliefs of Ms Ellis, are not statements that can help her prove a legal error in the Tribunal’s decisions.

Relief

87    In her concise statement, Ms Ellis has made a genuine attempt to replicate the kinds of relief which might be granted on judicial review. She has stated:

 1    Section 39B Judiciary Act 1903 (CTH) in the Federal Court.

    I would like a writ of Mandamus s39B (1) Re original Jurisdiction with respect to any other matter.

    (To Compel Officer) to fulfil his duties.

 2    Under the ADJR ACT – That a breach of rules of Natural Justice occurred.

    Decision is an error in law and the decision was adduced by fraud AND bad faith.

    The procedures by law to be followed, clearly, they are not and court observe the law is followed.

  3    Writ of Certiorari to quash the decision.

4    Order against the Secretary Department Human Services in a way Civil Proceedings, Common law costs and what the court deems fit under their discretion.

5    Order to stop the ongoing harm and irreversible damages being causes to my son and myself.

     I would like [S’s father] and who is involved in this and to stop the Tort of Intentional Infliction of emotional distress.

 6    Stay of proceedings in regards to matters in any court.

(Original emphasis.)

88    The difficulty is that, as explained to Ms Ellis, setting aside either or both of the Tribunal decisions would have adverse consequences for her. It would restore a large family tax benefit debt. Ms Ellis appeared to understand this point, as the transcript extracts above demonstrate.

89    The orders sought in [4] and [5] of the extract at [87] above were the kind of relief I infer Ms Ellis really wanted. None of that could be granted by this Court on judicial review.

Conclusion

90    The judicial review application must be dismissed. What Ms Ellis in truth sought from this Court were outcomes it could not give her.

91    The Secretary had written to Ms Ellis ahead of the final hearing with an open offer to settle the application, offering to waive the remaining debt of $770.56. Ms Ellis rejected that offer, in part because she had paid the debt and made it clear the financial aspects of these decisions were no more than history for her. She was given the opportunity to reflect on the offer again at the final hearing. She made it quite clear she did not wish to take up that offer.

92    The Secretary might therefore be seen to have a strong case for an order for costs. They have been co-operative throughout the proceeding, and properly made the offer they did. They have successfully defended the Tribunal’s decisions.

93    Nevertheless, I consider a costs order would be futile. The only consequence it is likely to have is that, if enforced, it could send Ms Ellis into a spiral towards bankruptcy, or further proceedings about the costs order. If the order is not to be enforced, there is no utility in it being made. The costs discretion should not in my opinion be used in circumstances such as these, where an applicant’s personal grievances and sense of injustice about a matter as deeply personal as custody of a child have led to misconceived proceedings. The interests of justice overall are better served by bringing finality to Ms Ellis’ interactions with this Court. A costs order could only increase the likely expenditure of more public funds and resources in the future in enforcing it.

94    I consider the appropriate and just order in the somewhat unusual circumstances of this proceeding is that there be no order as to costs.

Associate:

Dated:    7 September 2022