Federal Court of Australia

EBZ20 v ECA20 [2022] FCA 1098

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondents’ costs of the appeal, to be assessed in default of agreement in accordance with the court’s Costs Practice Note (GPN-COSTS).

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

REASONS FOR JUDGMENT

SNADEN J

Introduction

1    As its name suggests, the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”) makes provision for the assessment of amounts to be paid by way of child support. Principally, such assessments are calculated administratively via the application of various formulas that are applied to variables such as a parent’s income and expenses. Part 6A of the Assessment Act makes provision for processes that enable departures from that formulaic assessment. It is one such process that is the subject of these reasons.

2    The appellant and first respondent are the formerly-married parents of two school-aged children. The second respondent, (the “Registrar”) is established by the Child Support (Registration and Collection) Act 1988 (Cth) (the “Registration and Collection Act”) and is the holder of a statutory office that is responsible for, amongst other things, making assessments under the Assessment Act.

3    On 2 April 2019 (and pursuant to the Assessment Act), the Registrar made an administrative assessment of the appellant’s liability to pay child support to the first respondent in respect of their two children (the “Initial Assessment”). It took effect from 26 March 2019. On 16 September 2019, the first respondent (hereafter, the “Mother”) applied under Part 6A of the Assessment Act for a determination that the appellant (hereafter, the “Father”) should pay more child support than the Initial Assessment required (that application is referred to, hereafter, as the “Departure Application”). On 12 December 2019, the Registrar determined that he should (the “Departure Assessment”).

4    By an objection lodged on 14 January 2020 (the “Departure Objection”), the Father applied for a review of the Departure Assessment. On review, an objections officer of the Registrar varied the Departure Assessment in part; but not in a way that reinstated the Father’s liability under the Initial Assessment (the “Departure Review Decision”).

5    On 13 April 2020, the Father applied to the Administrative Appeals Tribunal (the “Tribunal”) for a review of the Departure Review Decision (the “Tribunal Application”). By a written decision dated 11 August 2020, the Tribunal varied the Departure Review Decision; but, again, not in a way that reinstated the Initial Assessment (the “Tribunal Decision”).

6    On 10 September 2020, the Father lodged in this court an appeal from the Tribunal Decision. That appeal was subsequently transferred to the Federal Circuit Court of Australia (as it then was—the “FCCA”). By a decision dated 11 May 2021, the FCCA dismissed it with costs: Oliver v Oliver [2021] FCCA 965 (Judge McNab, as his Honour then was).

7    By an amended notice of appeal dated 30 August 2021, the Father now appeals from the entirety of that judgment.

8    For the reasons that follow, the appeal shall be dismissed, with the usual order as to costs.

Statutory framework

9    Part 6A of the Assessment Act establishes various processes that enable the Registrar to review “administrative assessment[s]” made otherwise under that enactment. Sections 98B and 98C (both of which are within pt 6A) relevantly provide as follows:

98B Application for determination under Part

(1)    If, at any time when an administrative assessment is in force in relation to a child:

(a)    the liable parent concerned; or

(b)    the carer entitled to child support concerned;

Note 1:    For the determinations that the Registrar may make under this Part see section 98S.

Note 2:    The Registrar may only make a determination under this Part in respect of a day that is more than 18 months earlier than the day on which the relevant application is made with a court’s leave under section 112 (see subsection 98S(3B)).

(2)    The parties to the proceedings under this Division are the liable parent and the carer entitled to child support.

98C Matters as to which Registrar must be satisfied before making determination

(1)    Subject to this Part, if:

(a)    an application is made to the Registrar under section 98B; and

(b)    the Registrar is satisfied:

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

(ii)    that it would be:

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

(B)    otherwise proper;

to make a particular determination under this Part;

the Registrar may make the determination.

(2)    For the purposes of subparagraph (1)(b)(i):

(a)    the grounds for departure from the provisions of this Act relating to administrative assessment of child support in relation to the child are the same as the grounds for departure set out in subsection 117(2); and

(b)    subparagraph 117(2)(b)(ib) has effect subject to subsections 117(3A) to (3C).

(3)    Subsections 117(4) to (9) (inclusive) apply to the Registrar in the exercise of his or her powers under this Division as if:

(a)    any reference in those subsections to the court were a reference to the Registrar; and

(b)    any reference to an order were a reference to a determination.

…

10    Section 98F of the Assessment Act empowers the Registrar to refuse an application for a determination under pt 6A if satisfied that there are no grounds upon which it should succeed, or that it is otherwise not just, equitable or proper to grant it.

11    Section 98S(1) of the Assessment Act lists the various species of determination that the Registrar may make under pt  6A. Amongst others, the Registrar may make a determination varying the annual rate of child support payable by a parent (as was the case in the form of the Departure Assessment).

12    Section 117 of the Assessment Act identifies the criteria upon which such determinations may be made (they are incorporated into the present context by s 98C(2)). Section 117(2) relevantly provides:

117 Matters as to which [the Registrar] must be satisfied before making [a departure determination]

…

(2)    For the purposes of subparagraph (1)(b)(i), the grounds for departure are as follows:

…

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

…

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

…

(4)    In determining whether it would be just and equitable as regards the child, the carer entitled to child support and the liable parent to make a particular order under this Division, the [Registrar] must have regard to:

…

(d)    the income, property and financial resources of each parent who is a party to the proceeding; and

(da)    the earning capacity of each parent who is a party to the proceeding; and

(e)    the commitments of each parent who is a party to the proceeding that are necessary to enable the parent to support:

(i)    himself or herself; or

(ii)    any other child or another person that the person has a duty to maintain; and

…

(5)    In determining whether it would be otherwise proper to make a particular order under this Division, the [Registrar] must have regard to:

(a)    the nature of the duty of a parent to maintain a child (as stated in section 3) and, in particular, the fact that it is the parents of a child themselves who have the primary duty to maintain the child; and

(b)    the effect that the making of the order would have on:

(i)    any entitlement of the child, or the carer entitled to child support, to an income tested pension, allowance or benefit; or

(ii)    the rate of any income tested pension, allowance or benefit payable to the child or the carer entitled to child support.

(6)    In having regard to the proper needs of the child, the [Registrar] must have regard to:

(a)    the manner in which the child is being, and in which the parents expected the child to be, cared for, educated or trained; and

(b)    any special needs of the child.

…

(7A)    In having regard to the income, property and financial resources of a parent of the child, the [Registrar] must:

(a)    have regard to the capacity of the parent to derive income, including any assets of, under the control of, or held for the benefit of, the parent that do not produce, but are capable of producing, income; and

(b)    disregard:

(i)    the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child, or who has such a duty but is not a party to the proceeding, unless, in the special circumstances of the case, the [Registrar] considers that it is appropriate to have regard to them; and

(ii)    any entitlement of the child or the carer entitled to child support to an income tested pension, allowance or benefit.

(7B)    In having regard to the earning capacity of a parent of the child, the [Registrar] may determine that the parent’s earning capacity is greater than is reflected in his or her income for the purposes of this Act only if the [Registrar] is satisfied that:

(a)    one or more of the following applies:

(i)    the parent does not work despite ample opportunity to do so;

(ii)    the parent has reduced the number of hours per week of his or her employment or other work below the normal number of hours per week that constitutes full-time work for the occupation or industry in which the parent is employed or otherwise engaged;

(iii)    the parent has changed his or her occupation, industry or working pattern; and

(b)    the parent’s decision not to work, to reduce the number of hours, or to change his or her occupation, industry or working pattern, is not justified on the basis of:

(i)    the parent’s caring responsibilities; or

(ii)    the parent’s state of health; and

(c)    the parent has not demonstrated that it was not a major purpose of that decision to affect the administrative assessment of child support in relation to the child.

…

(9)    Subsections (4) to (8) (inclusive) do not limit other matters to which the [Registrar] may have regard.

13    Child support assessments made pursuant to the Assessment Act may be enforced pursuant to the provisions of the Registration and Collection Act. Section 80 of the Registration and Collection Act provides that an objection may be lodged with the Registrar against (amongst others) decisions made under pt 6A of the Assessment Act.

14    Section 87 of the Registration and Collection Act requires the Registrar to consider such objections and, in each case, either disallow or allow the objection in whole or in part. Section 89 of the Registration and Collection Act provides that an application may be made to the Tribunal for a review of a decision of the Registrar made under s 87.

15    Section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the “AAT Act”) confers upon this court jurisdiction to entertain appeals on questions of law arising from (amongst other things) decisions of the Tribunal made under s 89 of the Registration and Collection Act. Section 44AAA of the AAT Act contemplates that an appeal from a decision of the Tribunal not made by a presidential member (as occurred in this case) may be heard by the FCCA. The AAT Act also allows for appeals to this court to be transferred to the Federal Circuit and Family Court of Australia (as occurred in this case).

16    Both the Registrar (in considering an objection) and the Tribunal (in considering an appeal from a decision regarding an objection) are empowered to make a departure determination according to the terms of the Assessment Act: see, in the case of the Registrar, s 87 of the Registration and Collection Act; and, in the case of the Tribunal, s 43(1) of the AAT Act.

17    Subsections 44(7) and (8) of the AAT Act assume some significance presently. It is convenient to replicate their terms in full:

44 Appeals to Federal Court of Australia from decisions of the Tribunal

…

(7)    If a party to a proceeding before the Tribunal appeals to the Federal Court of Australia under subsection (1), the Court may make findings of fact if:

(a)    the findings of fact are not inconsistent with findings of fact made by the Tribunal (other than findings made by the Tribunal as the result of an error of law); and

(b)    it appears to the Court that it is convenient for the Court to make the findings of fact, having regard to:

(i)    the extent (if any) to which it is necessary for facts to be found; and

(ii)    the means by which those facts might be established; and

(iii)    the expeditious and efficient resolution of the whole of the matter to which the proceeding before the Tribunal relates; and

(iv)    the relative expense to the parties of the Court, rather than the Tribunal, making the findings of fact; and

(v)    the relative delay to the parties of the Court, rather than the Tribunal, making the findings of fact; and

(vi)    whether any of the parties considers that it is appropriate for the Court, rather than the Tribunal, to make the findings of fact; and

(vii)    such other matters (if any) as the Court considers relevant.

(8)    For the purposes of making findings of fact under subsection (7), the Federal Court of Australia may:

(a)    have regard to the evidence given in the proceeding before the Tribunal; and

(b)    receive further evidence.

18    This court’s jurisdiction to hear appeals from judgments of the FCCA is well established and not presently controversial.

The decisions under review

19    Before identifying the scope and subject matter of the appeal, it is convenient to say something about the Tribunal Decision and the FCCA judgment. In doing so, something first should be said about the Mother’s Departure Application.

20    That Departure Application proceeded on the basis (amongst others) that there were special circumstances in which the costs of maintaining the children were significantly affected by reason of their being educated in the manner expected by their parents: Assessment Act, s 117(2)(b)(ii). That reality was the subject of some analysis in the Tribunal Decision. The following passages from that decision (Tribunal Decision, [12]-[13]) bear noting:

There is no controversy that from the start of the 2017 school year [the eldest child] has attended Trinity Grammar School and that [the younger child] has attended that school since the start of the 2019 school year. Both [the Father] and [the Mother] signed an "enrolment acceptance agreement form" on 10 January 2017 for [the eldest child] to attend that school. They both signed a similar form on 3 July 2017 for [the younger child] to attend that school.

The documents that [the Mother] provided the Tribunal include a copy of a tax invoice dated 24 January 2020 in the amount of $58,001.03 that the school issued to her and [the Father] for the fees payable for both children to attend the school in the 2020 year.

21    Those observations were and remain uncontroversial.

22    The Tribunal proceeded thereafter to summarise the evidence that it had received from the parties. It made the following observations in that regard (Tribunal Decision, [14]-[18]):

[The Father’s] evidence to the Tribunal was that it was always his expectation that the children would receive their junior education at the All Hallows Catholic Primary School and then proceed onto Rosebank College for their secondary education. He provided the Tribunal with a copy of an application that he and [the Mother] signed on 4 April 2016 for [the eldest child] to attend that school commencing in 2019. He also provided a copy of a document the school had issued setting out its fee structure for the 2020 school year, which revealed that the fees for a student enrolled in either year 7 or 8 were $7,980. [The eldest child] is presently enrolled in year 8 and [the younger child] in year 6.

[The Father] also gave evidence to the Tribunal to the effect that he only agreed to the children attending Trinity Grammar School subject to [the Mother] paying the school fees. His documentary evidence included an affidavit he swore in which he set out a conversation he had with [the Mother] prior to his signing the enrolment acceptance forms. He deposed in that affidavit that during the conversation [the Mother] told him that she had spoken to the children about going to Trinity Grammar School and that they were keen to do so. [The Father] deposed that he then asked [the Mother] about the fees the school would charge, which he understood would "cost a fortune". He deposed that [the Mother] responded by saying the fees were around $25,000 a year. He deposed that after [the Mother] asked him to sign the enrolment form he said:

"I don't want to stand in the way of the kids getting the best education possible. I will sign if it is necessary for me to do so to enrol them, as long as you pay all the fees. If I ever start earning a decent income, I'll contribute what I can at my discretion. Is your dad going to help you?"

[The Mother’s] evidence to the Tribunal was that she could not recall having that specific conversation with [the Father]. She submitted however, that [the Father] was aware from the fact that he signed the enrolment forms that the children would be attending the school. She said that at no stage did [the Father] tell her that the children should not go to that school.

[The Mother] submitted to the Tribunal that in those circumstances, the Tribunal ought to find that it was [the Father’s] expectation that the children would be educated at the Trinity Grammar School.

[The Father] submitted to the effect that it was always his expectation that the children would go to Rosebank College and he only acceded to [the Mother’s] request to do otherwise, by sending them to Trinity Grammar School, provided she paid the fees.

23    The Tribunal then proceeded to make some findings relevant to the criteria identified in s 117(2)(b)(ii) of the Assessment Act, upon which the Mother relied (Tribunal Decision, [19]-[22]):

Based on that evidence, the Tribunal is satisfied that from a time before 2016, [the parents] expected the children would be educated outside the public school system. The Tribunal finds [the Father] acceded to a request from [the Mother] in 2017 that the children be enrolled at Trinity Grammar School. This necessarily follows from his signing the enrolment forms in 2017 for the children to attend the school. He said he "did not want to stand in the way" of the children going to the school. His signing that form enabled that to occur.

The Tribunal accepts his evidence that he did not make any commitment to [the Mother] to pay the fees associated with the children's education at that school. That however is not a requirement for this ground of departure. What is required is firstly, that there are special circumstances in this case, secondly, that the children are being educated in the manner expected by their parents and, lastly, that the costs of maintaining the children are significantly affected as a consequence of that. By virtue of the fact that the children are being educated at the Trinity Grammar School, where the combined fees for their education are around $58,000 a year, the Tribunal is satisfied that there are special circumstances in this case. Further, as said, the Tribunal is satisfied that both parents expected the children to be educated at the Trinity Grammar School. It is clear that as a consequence of their being educated at that school, the costs of maintaining the children are significantly affected.

Even if it were the case that [the Father’s] expectation was only that the children would be educated at the Rosebank College, and not the Trinity College, which the Tribunal does not consider is the case for reasons just stated, but is merely exploring this for the purpose of illustration, the cost of maintaining the children would still be significantly affected due to the cost that would be involved with the children's education at the Rosebank College. In other words, this ground for departure would still be established even if it were the case that it was only ever the expectation of the parties that the children were to be educated at Rosebank College. The issue of the ability of the parents to contribute to the fees of the children is explored when considering whether it is just and equitable to depart from the assessment of child support and if so what departure it is just and equitable to make.

The Tribunal finds that this ground for departure is established. Given that, there is no purpose served in considering whether the other ground for departure upon which [the Mother] relied is also established.

24    The final paragraph in the extract above requires analysis. The Tribunal formed the view (presumably for the purposes of s 98C(1)(a) of the Assessment Act) that one of the grounds for departure mentioned in s 117(2) existed: namely, the ground mentioned in s 117(2)(b)(ii). That was sufficient to establish the first consideration listed in s 98C(1)(b) of the Assessment Act. The Tribunal did not consider that it was necessary to assess whether there might be other grounds for departure under s 117(2) of the Assessment Act (including s 117(2)(c)(ia), which was an alternative basis upon which the Mother had pressed for the departure determination that she sought).

25    The Tribunal’s attention next turned to the circumstance to which s 98C(1)(b)(ii)(A) refers: namely, whether it would be “just and equitable” to make a determination under pt 6A of the Assessment Act. The Tribunal began that excursion by noting the requirements of s 117(4) of the Assessment Act (which were made relevant by operation of s 98C(3)). It proceeded to consider:

(1)    the Father’s circumstances, including his income, assets, capacity to work and expenses;

(2)    the Mother’s circumstances (referring to similar matters); and

(3)    the children’s circumstances, including the cost of their education at TGS and the fact that one of the children has special medical needs.

26    The Tribunal was moved to make some key findings, which it is prudent to record. It determined that:

(1)    the Father was capable of earning $75,000 per annum;

(2)    the Mother retained the former matrimonial home, which had an estimated value of $2,557,000; and

(3)    the children have “all the usual needs”.

27    As to the children’s education, the Tribunal concluded as follows (Tribunal Decision, [53]):

As said above, the costs of maintaining the children are increased substantially as a consequence of their attending the Trinity Grammar School. The Tribunal is satisfied the children attend the school in accordance with the expectation of their parents. The children's enrolment at the school was at [the Mother’s] instigation but [the Father] acquiesced to it and signed the enrolment forms to facilitate the children going to the school. The Tribunal accepts [the Father’s] evidence that he did not commit to [the Mother] to contribute towards any of the fees associated with the children's education. Nevertheless, by agreeing for the children to go to that school, and thereby endorsing [the Mother’s] decision for the children to go to that school, he was aware that the costs of maintaining the children would increase substantially. Further, once a child commences at a school, there would be some hardship to the child to withdraw from the school, although it is not uncommon for that to occur. Children are resilient with regard to such matters.

28    On the strength of those intermediate findings, the Tribunal was ultimately satisfied that it would be just and equitable to make a determination under s 98S of the Assessment Act.

29    The Tribunal then considered the final matter to which s 98C(1)(b)(ii) of the Assessment Act refers: namely, whether it was “otherwise proper” to make a departure determination under pt 6A. After considering the criteria listed in s 117(5) of the Assessment Act (which were made relevant by s 98C(3)), the Tribunal concluded that it was.

30    The Father lodged an appeal from the Tribunal Decision under s 44(1) of the AAT Act. That appeal was transferred for hearing before the FCCA. The notice of appeal identified the grounds upon which it proceeded, namely that:

1.    The Tribunal failed to consider the way the [appellant] put his case; or submissions of substance which, if accepted, are capable of affecting the outcome of the case.

2.    The Tribunal breached the rules of natural justice in connection with the making of the decision.

3.    The making of the decision by the Tribunal was an improper exercise of the power conferred by the Act in pursuance of which it was purported to be made in that

(i)    the exercise of the power was for a purpose other than a purpose for which the power is conferred;

(ii)    it involved taking an irrelevant consideration into account in the exercise of the power;

(iii)    procedures that were required by law to be observed in connection with the making of the decision were not observed.

4.    The making of the decision was an improper exercise of the power conferred by the Act in pursuance of which it was purported to be made, because the Tribunal took an irrelevant consideration into account in the exercise of a power by determining that the conditions in the Act were satisfied when there was no material evidence upon which the Tribunal could reasonably make those findings.

5.    The [appellant] was denied procedural fairness, or the making of the decision was otherwise an improper exercise of the power conferred by the Act in pursuance of which it was purported to be made, because the Tribunal failed to take a relevant consideration into account by the erroneous application of the statutory test in the Act to facts not in dispute.

6.    There was an error of law in the determination of whether the facts, fully found, fell within the provisions of the Act, properly construed.

31    Without intending any disrespect, those grounds were not well particularised and were difficult to understand. They were fleshed out to some degree by the “questions of law” identified earlier in the appellant’s notice of appeal, which were as follows:

Questions of law

1.    Whether the Tribunal failed to consider the way the [appellant] put his case; or submissions of substance which, if accepted, are capable of affecting the outcome of the case, in that it did not consider for the purpose of its satisfaction that the ground for departure from the provisions of the Child Support (Assessment) Act 1989 (Cth) ("the Act") relating to administrative assessment of child support in relation to the children in ss 98C(1)(b),(2)(a) & 117(2)(b)(ii) of the Act existed, that the manner that was expected by the parents for the children being educated at Trinity Grammar School was conditioned on both the parents' agreement that the [Mother] would pay the fees, and that, therefore, in the circumstances of this case, the costs of maintaining the children were not significantly affected.

2.    Whether the Tribunal breached the rules of natural justice in connection with the making of the decision in not considering the [appellant]'s application and case for review in relation to any satisfaction that the ground for departure from the provisions of the Act relating to administrative assessment of child support in relation to the children in ss 98C(1)(b), (2)(a) & 117(2)(c)(ia) of the Act did not exist.

3.    Whether the making of the decision by the Tribunal was an improper exercise of the power conferred by the Act in pursuance of which it was purported to be made, in that the Tribunal took into account the question of the earning capacity of the [appellant], purportedly under s 117(4)(da) and (7B) of the Act, when the decision under review did not concern the ground of satisfaction referred to in s 117(2)(c)(ib) of the Act:

(i)    and the exercise of the power was, therefore, for a purpose other than a purpose for which the power is conferred "of reviewing a decision" under s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth);

(ii)    involved taking an irrelevant consideration into account in the exercise of the power;

(iii)    and that procedures that were required by law to be observed in connection with the making of the decision in relation to any s 117(2)(c)(ib) application as set out in s 98G(2)(3) and 98H(1)(2) of the Act and s 80(2)(3) of the Child Support (Registration and Collection) Act 1988 (Cth) were not observed.

4.    In the alternative to 3, whether the making of the decision was an improper exercise of the power conferred by the Act in pursuance of which it was purported to be made, because the Tribunal took an irrelevant consideration into account in the exercise of a power by determining that the conditions in s 117(7B)(a)(i) and 117(7B)(c) of the Act were satisfied when there was no material evidence upon which the Tribunal could reasonably make those findings.

5.    Whether the [appellant] was denied procedural fairness, or the making of the decision was otherwise an improper exercise of the power conferred by the Act in pursuance of which it was purported to be made, because the Tribunal failed to take a relevant consideration into account by the erroneous application of the statutory test in s 117(4) (e)(i) of the Act to facts not in dispute.

6.    Whether the Tribunal failed to consider the way the [appellant] put his case; or submissions of substance which, if accepted, are capable of affecting the outcome of the case, in that it did not consider for the purposes of subparagraph 117(1)(b)(ii), (4)(d), 4(g)(i)(A) and 4(g)(ii)(A) & (7A)(a) of the Act, that the [Mother] retained all of the property and the overwhelming majority of the income and financial resources of the marriage:

(i)    with the capacity to lease or rent out her over $2.5 million house and live in cheaper accommodation;

(ii)    that she is entitled to a parliamentary pension from age 55 for life in the amount of around $100,000 p.a, and can earn an income on top of that;

(iii)    that the [appellant]'s necessary commitment of a loan agreement for a new car is in an amount similar to that of the [Mother]'s car which she had failed to disclose.

7.    Whether the Tribunal should have been satisfied that there are no grounds for departing from the provisions of the Act, relating to administrative assessment of child support in relation to the children concerned; or that it would not be just or equitable as regards the children or the [appellant]; or otherwise proper; to make the determination, and should have refused to make the determination without taking any further action under Part 6A of that Act, in accordance with s 98F of the Act.

32    By his notice, the appellant also identified some findings of fact that he asked the court to make pursuant to s 44(7) of the AAT Act:

Findings of fact that the Court is asked to make

1.    In the period leading up to the [appellant] signing the Trinity Grammar School Enrolment forms for [the eldest child] on 10 January 2017 and for [the younger child] on 3 July 2017, both the [appellant] and [the Mother] agreed and expected that the children would be educated at Trinity Grammar School on the condition that the [Mother] would pay the fees for them doing so, and this continued until the [Mother] sought to depart from this agreement and expectation from mid-2019.

2.    The [Mother] withdrew her Special Circumstances application to change the Child Support Assessment on the ground of reason 8B (or s 117(2)(c)(ib) of the Act), and changed it to the ground of reason 8A (or s 117(2)(c)(ia) of the Act, on 31 October 2019.

3.    The [appellant] has never worked as a solicitor, and does not feel suited to working as a solicitor. Even so, the [appellant] has applied for work as a solicitor in the past without success. The [appellant] has been working on matters of a private nature since the end of September 2019, representing himself, connected with proceedings in the Family Law jurisdiction (in which he has not otherwise practiced) and the property and parenting disputes with the [Mother] in that jurisdiction. Since the end of September 2019, the [appellant] has also been working on defending a significant costs assessment application (which threatens the solvency of his practice) by his former instructing solicitor in the major matter in which he was involved full-time in the period April 2019 to September 2019. The [appellant] has also been working on litigation in the Local Court relating to some of his unpaid costs in that matter. All of the aforementioned matters, have been worked on by the [appellant] without remuneration. The [appellant] has only had one small advice matter from a client that is a government agency, for which he was remunerated in the amount of $3,960 (GST included) in this period. He has sought additional briefs from this client (without success). The [appellant] will soon receive a brief in a significant property matter and minor criminal matter. The [appellant] has not been offered, nor refused, any briefs, through which he has had the opportunity to work, in the period from September 2019. In these circumstances, the [appellant] has not had ample opportunity to work for remuneration in the period from September 2019. Even so, the [appellant] has not been afforded any opportunity to demonstrate that he has not made a decision not to work, nor that it was not a major purpose of any such alleged decision to affect the administrative assessment of child support in relation to the children.

4.    At the time the [appellant] committed himself to a lease of a Mercedes motor vehicle on 12 August 2019 he had only recently been earning a relatively high income (which he thought would continue). His then Child Support liability was being based upon a very low taxable income of $9,598 for the 2017-2018 tax year, as he had been the primary carer of the children at that time. For many years prior to the [appellant] committing himself to the lease of the Mercedes vehicle, his business had been struggling with a low taxable income, and, in this context, the [appellant]'s 2018-2019 taxable income of $43,368 was atypically high. There was no significant delay in the [appellant] submitting that tax return, which occurred on 13 October 2019. The [Mother] had made her Special Circumstances Application to Change Child Support Assessment on 11 September 2019. The [appellant]'s business having struggled for a significant period of time, he had incurred debts to survive which he re-paid to family members and the Commonwealth Bank when earning the relatively high income. His disposable savings at the time of his Response on 21 November 2019 was only around $10,500, with the commitment to the lease of the Mercedes motor vehicle at $76,730 over 3 years (which was in an amount similar to the [Mother]'s car which she failed to disclose at points 12 and 17 of her Special Circumstances Application). His previous car had been recently written off as a result of a multiple car collision in which he was involved and not at fault.

5.    The circumstances of the parties upon which the Tribunal made its determination involve the [appellant] having no property, living with his parents at Fairfield West, and having around $110,000 in superannuation. The circumstances of the [Mother] were that she retained all of the property and the overwhelming majority of the income and financial resources of the marriage: with the capacity to lease or rent out her $2.6 million house and live in cheaper accommodation (in circumstances where the [Mother] is resisting the division of this asset in the Family Law proceedings between the parties); the [Mother] having around $1,335,883 in superannuation, and an entitlement to a parliamentary pension from age 55 for life in the amount of around $100,000 p.a, and can earn an income on top of that; and the commitment of a loan agreement for a 2016 Jaguar Sport XF motor vehicle comparable to the [appellant]'s vehicle. Due to the disparities in the income, property, and financial resources of the parties, the fact that whatever the [appellant] earns he needs to use to establish himself so he can live closer to the children and spend time with them; and to deal with the hardship that is being caused to the [appellant] and the children, especially with the effects of the younger son[‘s]…[a]norexia on the family as a whole.

33    The appellant initially sought in the FCCA an order to stay the application of the Tribunal Decision. That application was discontinued by consent after the FCCA indicated that it could hear the substantive matter with some expedition. The transcript of that hearing was put before this court, for reasons that might soon become apparent.

34    The hearing before the FCCA took place on 19 February 2021. The judgment was handed down on 11 May 2021. The transcript of the hearing was also put before this court (again, for reasons that will soon become apparent).

35    In the reasons published in support of its judgment, the FCCA noted that:

The [appellant]’s written submissions in support of this appeal were confusing and at times obscure. The Court has done the best that it could with those submissions which were supplemented with oral submissions at the Final Hearing.

36    The FCCA then proceeded to address the grounds and questions of law to which the appellant’s notice of appeal referred. It began by considering whether the agreement between the Mother and Father for the children to attend TGS was conditional upon the Mother’s paying for it. His Honour recognised that the Tribunal had accepted the Father’s evidence that he had not made any commitment to pay in that regard. It was recognised that any such commitment was irrelevant to whether or not the ground recorded in s 117(2)(b)(ii) (above, [12]) was enlivened. The primary judge concluded that those findings were open on the evidence and that there was no legal error inherent in them: primary judgment, [32]-[34].

37    The FCCA then considered what was described as the focus of the appellant’s second ground. It is convenient to replicate what his Honour said on that score (primary judgment, [35]-[36]):

The [appellant]’s second ground of appeal is whether the AAT denied the [appellant] natural justice by failing to consider the [appellant]’s case in relation to ‘any satisfaction that the ground for departure”, under s 98(2)(a), s 98C(1)(b) and s 117(2)(c)(ia) of the Child Support Act did not exist. Essentially, this ground asserts that the AAT failed to consider whether a ground for departure under s 117(2)(c)(ia) existed.

On its face, this ground of review is unclear. I assume that the ground is an assertion that the AAT failed to consider whether a ground for departure under s 117(2)(c)(ia) existed. In circumstances where the AAT found that the ground for departure under s 117(2)(b)(ii) had been established, there was no need for the AAT to ascertain whether a further ground of departure had been established: see Child Support Registrar & Crowley and Anor [2015] FamCAFC 76 at [33]. This ground must fail.

38    The FCCA then considered the appellant’s third ground. His Honour’s analysis of that ground is, with respect, brief and well-reasoned, and it is convenient to replicate it here (primary judgment, [37]-[39]):

The [appellant]’s third ground of appeal is whether the AAT’s decision was an ‘improper exercise’ of the power under the Child Support Act, because the AAT took into account the [appellant]’s earning capacity, allegedly under s 117(4)(da) and s 117(7B) of the Child Support Act, when the decision under review allegedly ‘did not concern’ the ground under s 117(2)(c)(ib).

Once the AAT is satisfied that there are grounds for departure under s 98S of the Child Support Act, it may make the orders under section 98S, subject to being satisfied that the orders are just and equitable: see s 117(1)(b)(ii)(A) of the Child Support Act.

In considering whether an order is just and equitable the AAT must have regard to the matters under s 117(4) of the Child Support Act which include, pursuant to s 117(4)(da), the earning capacity of each parent who is a party to the proceeding. In this matter, the AAT, being satisfied that there was a ground for departure, is obliged to take into account the earning capacity of each parent and therefore the AAT was not in error in considering the [appellant]’s earning capacity. Further there is no substance to the complaint made in the [appellant]’s submissions that he was “ambushed” by the AAT’s findings in relation to his earning capacity. That issue had been raised by the delegate and given the legislative provisions regarding the review, the requirement to consider the party’s earning capacity would have been apparent. This is particularly the case given that the [appellant] is a legal practitioner. This ground has no substance and therefore must fail.

39    His Honour described the appellant’s fourth ground as follows (primary judgment, [40]):

The [appellant]’s fourth ground of appeal is whether the AAT’s decision was an improper exercise of power because it took into account an irrelevant consideration, being that the AAT found that the conditions in s 117(7B)(a)(i) and s 117(7B)(c) of the Child Support Act were met and there was no evidence on which the AAT could have reasonably made those findings.

40    His Honour concluded (primary judgment, [42]) that:

This ground is a challenge to findings of fact made by the AAT, however there is no basis for finding that the findings are affected by legal unreasonableness such as to constitute an error of law.

41    The appellant’s fifth ground pertained to whether he had been denied procedural fairness. It was advanced on the basis that the Tribunal had erroneously applied the test in s 117(4)(e)(i) of the Assessment Act to facts that were ‘not in dispute’, thereby failing to take into account a relevant consideration. On that, his Honour observed (primary judgment, [45]):

The [appellant]’s challenge to the findings set out at [22]–[24] of the AAT decision is an attempt to engage in impermissible merits review: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6. It is not apparent that the AAT failed to consider and make findings regarding, or taking into account, the commitments of each party. This ground must fail.

42    In relation to the appellant’s sixth and final ground of appeal, his honour observed (primary judgment, [46]-[47]) that:

The [appellant]’s sixth ground of appeal is whether the AAT failed to consider that the [Mother] retained all the property from their marriage as well as the ‘overwhelming majority’ of the income and financial resources.

The [appellant] relies upon a [judgment] of the Family Court of Australia involving the parties which was handed down in October 2020, approximately two months after the AAT decision was published on 11 August 2020. The fact that the AAT decision did not consider that there may have been a change of circumstances arising as a result of the Family Court decision, which was handed down after the AAT decision, does not establish any error of law in the AAT’s decision. The AAT specifically referred to those proceedings at [46] (incorrectly referring to the Federal Court of Australia but plainly referring to the Family Court of Australia given the nature of the proceedings described) and noted that the [Mother] owns a property which she estimates of value to be $2,557,000 with a mortgage of $580,562. Any change of circumstances arising from the Family Court decision were not before the AAT when it considered the matter. This ground must fail.

43    As has been noted, the appellant’s appeal to the FCCA was dismissed with costs.

The present appeal

44    Before this court, the appellant charges the FCCA with having erred in two ways. It is convenient to set out the grounds that are advanced:

1.    The Federal Circuit Court exceeded its jurisdiction by failing to apply itself to the questions of law and findings of fact sought by the [a]ppellant below which section 44AAA of the Administrative Appeals Tribunal Act 1975 (Cth) prescribed.

2.    There was jurisdictional error, or otherwise errors of law made, by the Federal Circuit Court, in that

(a)    in purporting to decide the questions of law agitated by the [a]ppellant before the primary judge, the Court in truth was actuated by extraneous considerations (including actual bias against the [a]ppellant and in favour of the [f]irst and/or [s]econd [r]espondents); and

(b)    the questions of law and findings of fact sought by the [a]ppellant below weren't dealt with by the primary judge, either at all, or finally; and/or

(c)    the primary judge should have found for the [a]ppellant on the bases agitated by the [a]ppellant below.

45    As was the case before the FCCA, the appellant appears to have drafted his own grounds and, again intending no disrespect, they are difficult to follow. Fortunately, some clarity was attached to them in the form of the appellant’s helpful written and oral submissions, by which he identified five issues that were said to arise from the grounds that he pressed, namely (errors original):

(i)    Whether the findings of fact set out in paragraphs 1-2 & 4-5 of the [appellant]'s Notice of Appeal from a tribunal below ought to have been made by the Court, and should now be made, pursuant to section 44(7) of the Administrative Appeals Tribunal Act 1975 (Cth)?

(ii)    Was it open to the [s]econd [r]espondent or AAT to have made the Part 6A departure order they did, under the Child Support (Assessment) Act 1989 (Cth), on the ground set out in s 117(2)(b)(ii) of that Act, in circumstances where both the [a]ppellant and [f]irst [r]espondent had agreed and expected that the children would be educated at Trinity Grammar School on the condition that the [f]irst [r]espondent would pay the fees for them doing so, until she later sought to depart from this agreement and expectation from mid-2019?

(iii)    Was it open to the [s]econd [r]espondent or AAT to have made the Part 6A departure order they did, under the Child Support (Assessment) Act 1989 (Cth), which were (in effect) earning capacity decisions, on the grounds set out in either s 117(2)(c)(ia) or (c)(ib) of that Act, in circumstances where the [f]irst [r]espondent’s application was only pressed under the former provision?

(iv)    Is the legislative intention under the Child Support (Assessment) Act 1989 (Cth), that the question of earning capacity in section 117(4)(da) and s 117(7B) of that Act, is only relevant to a Special Circumstances application made on the ground in s 117(2)(c)(ib) of the Act?

(v)    Was the Court below in truth actuated by extraneous considerations (including actual bias against the [a]ppellant and in favour of the [f]irst and/or [s]econd [r]espondents)?

46    Given the uncertainty that plagues the appellant’s grounds of appeal, I shall address each of those five questions, albeit not in the order that the appellant advanced them. For reasons that will soon become clear, it is necessary first to address the appellant’s allegation that the primary judgment was a product of bias.

Issue (v): bias

47    The appellant alleges that the primary judge was actuated by bias. That, he says, is reflected in the following combination of circumstances, namely:

(1)    the primary judge’s failure to address some of the submissions that the appellant advanced;

(2)    the primary judge’s failure to determine the matter more expeditiously than he did, particularly after having indicated (in the context of an abandoned stay application) that he could;

(3)    exchanges with the first respondent, during which the primary judge noted, in answer to an inquiry raised by the Mother, that the Tribunal Decision was in place and binding until such time as it might be set aside;

(4)    exchanges that transpired at the hearing between his Honour and the appellant; and

(5)    the primary judge’s failure to decide the substantive matter as the appellant urged.

48    Allegations of bias are serious. A litigant who makes such an allegation is obliged to seek relief reflecting that severity and an intermediate appeal court dealing with it and other discrete grounds is obliged to deal with allegations of bias first. In Concrete Pty Ltd v Paramatta Design & Developments Pty Ltd (2006) 229 CLR 577, 611 [117], Kirby and Crennan JJ observed as follows:

It must [deal first with an allegation of bias] because, logically, it comes first. Actual or apprehended bias strike at the validity and acceptability of the trial and its outcome. It is for that reason that such questions should be dealt with before other, substantive, issues are decided. It should put the party making such an allegation to an election on the basis that if the allegation of apprehended bias is made out, a retrial will be ordered irrespective of possible findings on other issues.

49    In the present matter, no such election was required, as the appellant’s submissions regarding bias were always and obviously without merit. Although unclear from his written submissions, the appellant’s allegation was clarified during the appeal hearing as one of actual, rather than apprehended bias. Actual bias manifests in a judge possessing a state of mind that is “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented”: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, 532 [72] (Gleeson CJ and Gummow J). None of the circumstances to which the appellant here points—and no combination of any of them—comes even close to satisfying that test. The appellant ought not to have made the allegations that he made.

Issue (i): failure of the court to make factual findings

50    In the matter below, the appellant invited the primary judge to make five findings of fact pursuant to s 44(7) of the AAT Act. His Honour did not make any of them. No explanation for his not doing so was offered; but, for the reasons that follow, none was required. The appellant now invites this court to make the findings that the primary judge refused to make; and to do so on the basis that his Honour was wrong so to refuse.

51    In Comcare v Etheridge (2006) 149 FCR 522, 527 [17] (Branson J), this court described the fact-finding power that s 44(7) of the AAT Act confers as:

…a power available to be exercised after the Court has given consideration to the questions of law which constitute the subject matter of the appeal. If the answers to those questions, or any of them, lead to relief being granted to the applicant, the limited power to find facts which is vested in the Court by s 44(7) may be exercised, where it is convenient to do so having regard to the factors identified in the subsection, to avoid the need for the matter to be remitted to the Tribunal for further consideration.

52    Similarly, in Kolya v Tax Practitioners Board (2012) ATR 474, 487 [55], Flick J observed:

It is constantly to be recalled that the jurisdiction of this Court when entertaining an “appeal” pursuant to s 44 of the Administrative Appeals Tribunal Act is confined to the resolution of the questions of law which have been identified. The Court has no general jurisdiction to thereafter proceed to make additional findings of fact which it or another Tribunal differently constituted may have made.

53    In Yildiz v Migration Agents Registration Authority [2021] FCA 1550, [26], Wheelahan J made similar observations:

The court’s power to admit further evidence is therefore fettered by the limited and discretionary circumstances in which the court on an appeal on a question of law might make findings of fact by way of disposition of the matter. The limitations on fact-finding by the court in s 44(7) of the Administrative Appeals Tribunal Act show that the powers to receive evidence and to make findings of fact are not in aid of permitting this court to determine for itself whether the applicant’s registration as a migration agent should be cancelled, as if on a re-hearing of the application that was before the Tribunal. Moreover, the power to make findings of fact does not alter the nature of the appeal as one that is a form of statutory judicial review on a question of law, and not an appeal on the merits.

54    In the present matter, it is to be recalled that the primary judge did not accept that the Tribunal had erred in law in any of the ways that the appellant asserted. The court’s power to make any finding of fact was thereby limited. It could not be said that the limited discretion conferred upon the primary judge by s 44(7) of the AAT Act miscarried in any way sufficient to warrant appellate intervention by this court. Accordingly, this ground of appeal must fail.

Issue (ii): findings under s 117(2)(b)(ii)

55    The appellant maintains that it was not open to the Tribunal to find that the facts before it sufficed to meet the circumstance referred to in s 117(2)(b)(ii) of the Assessment Act. That, he says, is the consequence of the agreement that he struck with the Mother. The mutual expectation, he maintains, was that the children would go to TGS and that she would pay for it.

56    That submission is without foundation for precisely the reasons that both the Tribunal and the primary judge accepted. The circumstance described by s 117(2)(b)(ii) of the Assessment Act exists whenever parents possess a mutual expectation as to the manner of their children’s schooling. Here, there was no doubt—and, in any event, it was plainly open to the Tribunal to find—that both parents expected that the children would go to TGS. The fact that the Father attached a condition to that is irrelevant to whether or not there was a basis for departure under s 117(2)(b)(ii). That condition concerned how the children’s schooling would be paid for; not the more fundamental issue of where they would go. That is consistent with what the Tribunal found and its doing so involved no error of law. The primary judge was, with respect, correct so to conclude.

Issues (iii) and (iv): the significance of the Father’s earning capacity

57    It is convenient to address the third and fourth of the five issues identified by the appellant together.

58    The appellant maintains that the Tribunal’s determination was a “capacity decision” that was wrongly decided on grounds upon which the Mother had not relied (namely, those referred to in s 117(2)(c)(ia) and/or (ib)). He says that there is no call for any consideration of a parent’s earning capacity under s 117(4)(da) of the Assessment Act where the ground upon which a departure determination is sought is that for which s 117(2)(b)(ii) provides.

59    There is no doubt that the Tribunal made assessments of the Mother and Father’s relative capacities. It was required to do so by the combined operation of ss 98C(1)(b)(ii)(A), 98C(3) and 117(4) of the Assessment Act (and subject to the limitations established by s 117(7B)). Notwithstanding the terms of those provisions, the Father maintains that s 117(4) (and, in particular, s 117(4)(da)) of the Assessment Act have no application to determinations that are made (as the present one was) on the ground mentioned in s 117(2)(b)(ii).

60    To that end, the Father relies upon Forbes v Bream (2008) 222 FLR 96 (hereafter, “Forbes”; Bryant CJ, Boland and Stevenson JJ). There, the Full Court of the Family Court of Australia considered whether it should grant leave to allow an appeal from a decision concerning a departure application made under s 102A of the Assessment Act. The appellant asserted that the primary judge had erred in applying s 117(7B) of the Assessment Act to his application. The court disagreed and dismissed the application for leave. In doing so, it turned its mind to the relevance of “earning capacity”. Referring to ss 117(2)(c)(ib) and 117(4)(da), the court said (at 99 [13]) that:

A parent’s earning capacity is therefore relevant both to the establishment of a ground for departure, and also to the consideration of whether a departure would be just and proper.

(emphasis added)

61    Forbes does not stand as authority for the proposition that the appellant advances. The legislative framework is clear. If any ground for departing from the formulaic assessment of child support—including the one for which s 117(2)(b)(ii) provides—is established, then the circumstances identified in s 98C(1)(b)(ii) must be considered. Section 98C(1)(b)(ii)(A) requires that the departure be “just and equitable as regards the child, the liable parent, and the carer entitled to child support”. In considering that question, the Tribunal (and before it, the Registrar) must observe the requirements of s 117(4)(da) and (7B): Assessment Act, s 98C(3).

62    That is precisely what happened in this case and, respectfully, the primary judge was correct so to conclude.

63    That leaves for consideration two outstanding questions. The first concerns the basis upon which the Tribunal (like the Registrar before it) accepted that a departure determination should be made. The appellant suggests that it was made on one or other of the grounds recorded in s 117(2)(c)(ia) or (ib). That suggestion is plainly wrong. It is clear from the reasons for the Tribunal Decision that the Tribunal was satisfied that the circumstances established the ground referred to in s 117(2)(b)(ii) of the Assessment Act (see above, [23]-[24]).

64    The second concerns the Father’s related complaint that he was “ambushed” by the exploration of his earning capacity and/or financial circumstances. That submission (to the extent that it was maintained in this court) is without merit. As has been established, the Father’s financial circumstances were a live issue regardless of which ground the Mother relied upon. Furthermore, the disclosure of the Father’s financial circumstances was the subject of procedural directions prior to the hearing before the Tribunal (evidence of which was admitted in the court below). The Father’s suggestion that he was ambushed in any way is plainly wrong and the learned primary judge was, with respect, correct so to conclude.

Conclusions

65    The primary judgment is not attended by any alleged appealable error. That being so, the appeal must be dismissed. The appellant should pay the respondents’ costs.

Associate:

Dated:    19 September 2022