Federal Court of Australia
EOI20 v Child Support Registrar [2023] FCA 145
ORDERS
Appellant | ||
AND: | First Respondent EOJ20 Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The appeal is dismissed.
2. The appellant is to pay the first respondent’s costs as assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
MCELWAINE J:
1 The principal object of the Child Support (Assessment) Act 1989 (Cth) (the Act) is to “ensure that children receive a proper level of financial support from their parents”: s 4(1). The central grievance of the appellant, who at all times has been self-represented, is that by virtue of certain administrative determinations, her former partner and the father of their two children, the second respondent EOJ20, has not contributed to the extent to which he is obliged pursuant to the Act. Although EOJ20 is named as a respondent to this appeal, he has played no active role in it. The history of applications, decisions by a delegate of the Child Support Registrar (Registrar), review by the Administrative Appeals Tribunal (Tribunal) and an earlier appeal to this Court is tortuous. To assist in understanding these reasons, it is desirable to record some of the history.
2 In March 2002, child support became payable for two children of the appellant and the father by operation of the administrative assessment provisions at Part 4 of the Act. In December 2019, the eldest child ceased to be eligible for child support and the appellant made an application to the Registrar under Part 6A of the Act to depart from the administrative assessment of child support for a period of seven years commencing 7 January 2012. In February 2020, a delegate of the Registrar refused that application. The appellant applied to review that decision, following a decision by an objections officer on 29 May 2020, to the Tribunal which, on 10 September 2020, affirmed the decision under review. From that decision, on 20 October 2020, the appellant appealed to the Federal Circuit Court of Australia (as it then was). I will refer to this as the departure decision.
3 Separately, on 10 October 2019, the Registrar determined that with effect from 1 November 2019, the father’s adjustable taxable income of $88,285 would be taken to be his assessable income for the purposes of the administrative assessment. The appellant objected to that decision and on 16 December 2019, her objection was disallowed. On 12 January 2020, the appellant applied to the Tribunal to review the objection decision. On 6 April 2020, the Tribunal dismissed the application for review. On 12 August 2020, this Court quashed by consent that decision of the Tribunal and remitted the application for determination according to law on the ground that there had been a denial of procedural fairness. On 13 November 2020, the Tribunal again dismissed the review and affirmed the objection decision. I refer to this as the assessment decision.
4 From each decision on 23 December 2020, the appellant appealed to the Federal Circuit Court of Australia. Each appeal was heard by her Honour Deputy Chief Judge Mercuri on 3 May 2021. Her Honour for reasons published on 4 March 2022, dismissed each appeal with costs: EOI20 v EOJ20 [2022] FedCFamC2G 136 (PJ). On 1 April 2022, the appellant lodged a notice of appeal from the orders made by the primary judge. The notice of appeal is prolix. It combines various contentions about error (which appear to be submissions) with 17 “grounds of appeal”. Attention was drawn to the unsatisfactory nature of that document when the appeal was case managed. Leave was granted to the appellant to file an amended notice of appeal together with an outline of submissions and a chronology of relevant events by 5 August 2022. A further document in the form of an amended notice of appeal was filed on 10 August 2022. It too combines submissions with 14 “grounds of appeal”. The difficulty with the amended notice of appeal is that it expresses the fundamental misunderstanding of the appellant that this appeal is an opportunity to re-agitate arguments that were put to the Tribunal which concern the merits. The notice commences with a preamble of 38 paragraphs commencing with “facts relied on…..which establish an error or principle or a substantial injustice”. Then follows the 14 appeal grounds, some of which are drafted by adopting grounds of review from the Administrative Decisions (Judicial Review) Act 1977 (Cth) and no attempt is made to identify error by the primary judge. The Registrar, who was the second respondent in the proceeding below and is the first respondent to this appeal, raised no objection to the drafting of that document and was content that the appeal be determined by reference to it. Accordingly, at the commencement of the hearing of the appeal, I granted leave to rely on it and the grounds stated therein.
5 In oral argument before me, I invited the appellant to, in her own words, explain her complaints that are central to her appeal grounds. I explained to the appellant that the grounds serve to obscure rather than to illuminate the complaints. Very sensibly, counsel for the Registrar, Ms Whittemore, was content to address the arguments as they were developed. It should also be understood that many of the arguments put to me by the appellant invited merits review of all of the material that was before the original decision-makers or the Tribunal. As I repeatedly explained to the appellant it is not open to me upon this appeal to examine the merits of the various contentions that she relies upon and that for her arguments to succeed she must identify factual or legal error in the reasoning of the primary judge that founds the orders as made.
6 I have given careful consideration to each of the appellant’s arguments as set out in her written submissions (which with respect do not assist in the articulation of her appeal grounds) and as more particularly refined in answer to questions that were put by me during the hearing of the appeal. I have concluded that there is no error in the careful reasons of the primary judge and that the appeal must be dismissed.
Background
7 The primary judge carefully summarised the relevant background at PJ [4]-[35], which is not in issue and which for convenience I reproduce (with some deletions which do not affect the context or meaning):
4. The applicant and the first respondent are the separated parents of two children. A child support assessment has been in place for the children since 15 March 2002. While the older child ceased to be an eligible child for child support in December 2019, orders have been made for the first respondent to make adult child maintenance payments in respect of that older child.
5. As stated, LNG69/2020 is an appeal from a decision made by the Tribunal on 10 September 2020 and LNG82/2020 is an appeal from a decision of the Tribunal made on 13 November 2020.
6. On 6 August 2018, the applicant made an application for a departure determination in relation to the child support assessment on the basis that:
• the costs of maintaining the child were significantly affected by the child’s special needs; and
• the child support assessment was unfair because of the first respondent’s income, property and financial resources.
7. The special needs relied upon related to various orthodontic and other medical expenses incurred in relation to the older child. In relation to orthodontic treatment, the applicant stated that she had already paid $1,900 for stage one of that treatment some years ago and that the older child now requires additional orthodontic treatment at a cost of $7,000. The applicant also relied upon costs that she had incurred for the children’s speech therapy, chiropractic treatment, tonsillectomy, adenoid removal and grommets. Some of these expenses incurred by the applicant dated back to 2008.
8. Insofar as the first respondent’s income, property and financial resources are concerned, it has consistently been put by the applicant that the first respondent has understated his income and has failed to fully disclose financial resources available to him. At various times, the applicant has also raised concerns about the manner in which the second respondent has assessed the first respondent’s adjusted taxable income.
9. On 15 November 2018, a delegate of the Child Support Registrar refused the applicant’s application. On 29 November 2018, the applicant objected to the November 2018 decision.
10. By decision made on 21 January 2019, the objection was allowed in part. The objection decision noted ‘the costs attributable to (the older child’s) special needs (orthodontic and speech therapy treatment) do significantly affect the costs of maintaining him overall.’ The decision-maker went on to find that the costs of the orthodontic and speech therapy treatment was over $7,000, and that the parents should each contribute half of these costs.
11. On 29 January 2019, the applicant sought a review of the Child Support Registrar’s January 2019 decision in the Social Services & Child Support Division of the Tribunal.
12. On 16 July 2019, the Tribunal varied the January 2019 decision and increased the first respondent’s child support to reflect the conclusion reached that the father ought to be responsible for 75% of the orthodontic and speech therapy costs.
13. Relevantly, in its July 2019 decision, the Tribunal noted:
[12] A substantial part of the material provided by [the applicant] to the Department referred to expenses incurred prior to 6 February 2017, the 18 month period from the date of the application for which the Registrar (or the Tribunal standing in place of the Registrar) may make a departure determination, in accordance with section 98S of the Act.
[13] ... I do not have jurisdiction to make a determination for a period of more than 18 months before [the applicant’s] application for a change of assessment on 6 August 2018. My review is therefore limited to the matters contemplated by the objections officer in their decision of 21 January 2019.
14. The Tribunal further concluded that the applicant had incurred total expenses of $2,330 in 2018 for orthodontic costs and speech therapy and that she would need to pay the balance of $5,200 in orthodontic costs over the following two years.
15. After considering all of the arguments put to it, the Tribunal concluded that the total costs of the orthodontic treatment and speech therapy were $7,530 and that the first respondent ought to contribute 75% to these costs, to be paid over two years. The Tribunal therefore concluded that:
The decision under review is varied so that the rate of child support payable by [the first respondent] is increased by $2,824 per annum from 1 November 2018 to 31 October 2020.
16. On 28 January 2020, in separate proceedings brought by the applicant against the first respondent, Judge McGuire also ordered that the first respondent contribute $184 per week by way of adult child maintenance for the older child, who had turned 18 by that stage, and that such payments continue until 1 December 2022.
17. It is against this background that the two matters currently before the court arise.
18. As noted, the Tribunal’s July 2019 decision only related to those costs incurred by the applicant in the 18 months prior to her application for a departure determination on 6 August 2018.
19. On 7 January 2019, the applicant filed an application in this court for an order under the Assessment Act granting leave to the Child Support Registrar to change an assessment more than 18 months old. On 8 May 2019, Judge McGuire (as he then was) made an order pursuant to section 112 of the Assessment Act permitting an application for a departure order out of time to be made and referring the matter to the Child Support Registrar for determination.
20. On 9 December 2019, the applicant then applied for a departure from the administrative assessment of child support for the two children for the period from 7 January 2012.
21. The grounds on which a departure order may be made are set out in section 117(2) of the Assessment Act. In her application, the applicant relied upon two of the statutory grounds, namely that the children have special needs and that the assessment did not correctly reflect the first respondent’s income, property and/or financial resources.
22. On 26 February 2020, a delegate of the Registrar found that the reasons identified by the applicant as the basis for a departure order were not satisfied.
23. On 4 March 2020, the applicant lodged an objection to the delegate’s decision. On 13 April 2020, the first respondent responded to the applicant’s objection and made a cross-application for a departure order.
24. On or about 6 May 2020, the applicant provided a reply to the first respondent’s response and cross-application.
25. On 29 May 2020, an objections officer disallowed the objection and affirmed the decision made by the delegate of the Registrar on 26 February 2020 (‘objection decision’).
26. The applicant applied to the Social Services & Child Support Division of the Tribunal for a review of the objection decision on 2 June 2020. The applicant provided a written submission to the Tribunal. On 10 September 2020, the Tribunal handed down its decision in relation to the applicant’s application for review filed 2 June 2020.
27. In that decision, the Tribunal affirmed a decision of an objections officer of the Child Support Registrar disallowing the applicant’s objection to a decision not to make a determination departing from the administrative assessment in force in relation to the children under section 98C of the Assessment Act.
28. At paragraphs [1] to [9] of its decision record, the Tribunal sets out the history to this matter.
29. At paragraph [13] of the decision record, the Tribunal notes that in light of the 16 July 2019 Tribunal decision, which relates to the period of 1 November 2018 to 31 October 2020, for the purposes of the current review, the relevant period under review was 7 January 2012 to 31 October 2018.
30. The Tribunal then set out its consideration of the following factors:
(a) the first respondent’s income and financial resources;
(b) the first respondent’s salary and employment benefits;
(c) the first respondent’s rental property; and
(d) other financial resources available to the first respondent.
31. The Tribunal then concluded at paragraphs [32] to [33]:
[32] There was no evidence that [the first respondent] had any significant assets that would render the assessment of child support as unjust or inequitable.
[33] The Tribunal decided that there are no special circumstances in this case that make the administrative assessment unjust and inequitable due to the income or financial resources of [the first respondent].
32. The Tribunal went on to consider whether in the circumstances of the case, the administrative assessment was unjust or inequitable by reference to the special needs of the children at paragraph [34] and following of the decision record.
33. Relevantly, at paragraphs [36] and [37], the Tribunal set out the applicant’s evidence about the costs she had incurred in relation to medical and related expenses for each of the children. The Tribunal noted that the most significant costs related to stage one orthodontic expenses of $1,900, which the applicant incurred prior to 2012. The Tribunal noted that the applicant financed those costs through loans that were paid off over time, however, it further noted that ‘the financed costs incurred after 7 January 2012 are not medical costs incurred after 7 January 2012.’ The Tribunal went on to say that the additional medical costs were relatively minor when considered in the context of the child support paid over the relevant period.
34. At paragraph [40] of the decision record, the Tribunal concluded that there were ‘no special circumstances in this case that make the administrative assessment unjust and inequitable due to the special needs of the children.’
35. Consequently, the Tribunal affirmed the decision under review.
(Original emphasis. Footnotes omitted.)
The decision of the primary judge
8 The primary judge correctly understood that the appellant could only succeed on a question of law: s 44AAA(1) of the Administrative Appeals Tribunal Act 1975 (Cth). Her Honour struggled to identify questions of law in the many grounds of appeal that the appellant pressed before her. Adopting a beneficial construction of the grounds in each appeal, her Honour identified the following arguable questions of law concerning the departure decision at PJ [52] (with my ellipsis):
…
(a) Did the Tribunal misconstrue section 117(7A)(b)(ii) of the Assessment Act or fail to consider evidence? (Grounds 1 to 3)
(b) Was the Tribunal’s decision vitiated by fraud? (Grounds 4 and 5)
(c) Was it open to the Tribunal to consider the [father’s] tax returns in the manner in which it did? (Grounds 6 to 10 and 12 to 13)
(d) Did the Tribunal misconstrue or misapply section 117(2)(b)(ia) of the Act? (Ground 11).
9 Relevantly Part 7 of the Act provides for review of certain decisions including by Division 4, s 116: that a liable parent may in respect of an administrative assessment of child support apply to a relevant court for an order that varies certain components of child support pursuant to s 118. Within that scheme, s 117 provides:
Matters as to which court must be satisfied before making order
Court may make departure order
(1) Where:
(a) application is made to a court having jurisdiction under this Act for an order under this Division in relation to a child in the special circumstances of the case; and
(b) the court is satisfied:
(i) that one or more of the grounds for departure mentioned in subsection (2) exists or exist; and
(ii) that it would be:
(A) just and equitable as regards the child, the carer entitled to child support and the liable parent; and
(B) otherwise proper;
to make a particular order under this Division;
the court may make the order.
Grounds for departure order
(2) For the purposes of subparagraph (1)(b)(i), the grounds for departure are as follows:
(a) that, in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of:
(i) the duty of the parent to maintain any other child or another person; or
(ii) special needs of any other child or another person that the parent has a duty to maintain; or
(iii) commitments of the parent necessary to enable the parent to support:
(A) himself or herself; or
(B) any other child or another person that the parent has a duty to maintain; or
(iv) high costs involved in enabling a parent to spend time with, or communicate with, any other child or another person that the parent has a duty to maintain;
(aa) that, in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of the responsibility of the parent to maintain a resident child of the parent (see subsection (10));
(b) that, in the special circumstances of the case, the costs of maintaining the child are significantly affected:
(i) because of high costs involved in enabling a parent to spend time with, or communicate with, the child; or
(ia) because of special needs of the child; or
(ib) because of high child care costs in relation to the child; or
(ii) because the child is being cared for, educated or trained in the manner that was expected by his or her parents;
(c) that, in the special circumstances of the case, application in relation to the child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child:
(i) because of the income, earning capacity, property and financial resources of the child; or
(ia) because of the income, property and financial resources of either parent; or
(ib) because of the earning capacity of either parent; or
(ii) because of any payments, and any transfer or settlement of property, made or to be made (whether under this Act, the Family Law Act 1975 or otherwise) by the liable parent to the child, to the carer entitled to child support or to any other person for the benefit of the child.
High costs involved in enabling parent to care for a child
(2B) A parent’s costs involved in enabling the parent to care for a child can only be high for the purposes of subparagraph (2)(a)(iv) or (2)(b)(i) if the costs that have been or will be incurred, during a child support period, total more than 5% of the amount worked out by:
(a) dividing the parent’s adjusted taxable income for the period by 365; and
(b) multiplying the quotient by the number of days in the period.
(2C) If a parent has at least regular care of a child, then the only costs that can be taken into account for the purposes of subsection (2B) are costs related to travel to enable the parent to spend time with, or communicate with, the child.
High child care costs
(3A) The ground for departure mentioned in subparagraph (2)(b)(ib) is taken not to exist unless:
(a) the costs are incurred by a parent or a non‑parent carer; and
(b) the child is younger than 12 at the start of the child support period.
(3B) Child care costs for a parent can only be high for the purposes of subparagraph (2)(b)(ib) if, during a child support period, they total more than 5% of the amount worked out by:
(a) dividing the parent’s adjusted taxable income for the period by 365; and
(b) multiplying the quotient by the number of days in the period.
(3C) Child care costs for a non‑parent carer can only be high for the purposes of subparagraph (2)(b)(ib) if, during a child support period, they total at least 25% of the costs of the child for that period.
Matters to consider for purposes of subparagraph (1)(b)(ii)
(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 court must have regard to:
(a) the nature of the duty of a parent to maintain a child (as stated in section 3); and
(b) the proper needs of the child; and
(c) the income, earning capacity, property and financial resources of the child; and
(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
(f) the direct and indirect costs incurred by the carer entitled to child support in providing care for the child; and
(g) any hardship that would be caused:
(i) to:
(A) the child; or
(B) the carer entitled to child support;
by the making of, or the refusal to make, the order; and
(ii) to:
(A) the liable parent; or
(B) any other child or another person that the liable parent has a duty to support;
by the making of, or the refusal to make, the order; and
(iii) to any resident child of the parent (see subsection (10)) by the making of, or the refusal to make, the order.
(5) In determining whether it would be otherwise proper to make a particular order under this Division, the court 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.
Proper needs of the child
(6) In having regard to the proper needs of the child, the court 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.
Income, earning capacity, property and financial resources
(7) In having regard to the income, earning capacity, property and financial resources of the child, the court must:
(a) have regard to the capacity of the child to earn or derive income, including any assets of, under the control of, or held for the benefit of, the child 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 court 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.
(7A) In having regard to the income, property and financial resources of a parent of the child, the court 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 court 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 court 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 court 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.
Direct and indirect costs in providing care
(8) In having regard to the direct and indirect costs incurred by the carer entitled to child support in providing care for the child, the court must have regard to the income and earning capacity foregone by the carer entitled to child support in providing that care.
Subsections not to limit consideration of other matters
(9) Subsections (4) to (8) (inclusive) do not limit other matters to which the court may have regard.
Definition of resident child
(10) For the purposes of this section, a child is a resident child of a person only if:
(a) the child normally lives with the person, but is not a child of the person; and
(b) the person is, or was, for 2 continuous years, a member of a couple; and
(c) the other member of the couple is, or was, a parent of the child; and
(d) the child is aged under 18; and
(e) the child is not a member of a couple; and
(f) one or more of the following applies in respect of each parent of the child:
(i) the parent has died;
(ii) the parent is unable to support the child due to the ill‑health of the parent;
(iii) the parent is unable to support the child due to the caring responsibilities of the parent; and
(g) the court is satisfied that the resident child requires financial assistance.
10 On the first question of law, her Honour reasoned that upon a fair reading of the entirety of the reasons of the Tribunal, it correctly understood the appellant’s contention that the father had provided misleading or incomplete information about his income or financial resources, including an overstatement of his expenses. The Tribunal did not misunderstand that the question raised by s 117(7A)(b)(ii) concerns the income and financial resources of the father, and not of the appellant. Her Honour rejected the attempt by the appellant to engage in merits review in order to reach factual conclusions that aligned with the appellant’s arguments. Overall, her Honour concluded that each finding of fact relevant to this question was reasonably open to the Tribunal on the material before it.
11 On the second question, her Honour rejected the argument that the decision of the Tribunal was vitiated by fraud, being a failure by the father to fully disclose his income or financial resources. Her Honour noted that these contentions had also been made before the Tribunal. Ultimately, however, the Tribunal rejected the claims of the appellant. On the appeal, her Honour noted the failure by the appellant to particularise the alleged fraud or to identify the evidence in support. On that ground alone, her Honour concluded that the appellant simply failed to identify a reviewable error of law as having been committed by the Tribunal.
12 Turning to the third question, her Honour divided it into two parts: a complaint that the Tribunal failed to have regard to evidence before it relating to financial benefits received by the father by reason of his employment, and the other that it incorrectly considered itself bound to accept evidence about assessable income as contained in an income tax return.
13 Her Honour rejected each of these complaints. She considered that the first was not made out upon a fair reading of the entirety of the reasons of the Tribunal, which concluded that all employment-related benefits were accurately recorded in the income tax return. To the extent that de minimis benefits were not so recorded, the Tribunal concluded that the amounts would not have impacted the quantum of child support that was payable. Her Honour noted that the Tribunal specifically rejected the appellant’s claims to the effect that the father had concealed or lied about his assessable income, concluding that it was satisfied that the amounts recorded in the income tax returns were correct. Her Honour further observed that the Tribunal did not only have regard to the income tax returns, rather it considered the totality of the material before it. There was in her Honour’s conclusion: “an evident and intelligible justification for the conclusions reached” by the Tribunal: PJ [67].
14 Finally, and in dealing with the fourth question, her Honour reasoned that upon an objective and fair reading of the whole of the reasons of the Tribunal, it “was aware that in determining whether there were grounds for a departure order, one of the considerations was whether the administrative assessment would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent because the costs of maintaining the children was significantly affected by their special needs”: PJ [71]. Her Honour continued by finding that it was open to the Tribunal to conclude that the most significant cost of maintaining the children was incurred outside of this seven year period of review and that in consequence it was open to the Tribunal to reason that the quantum of additional costs within that period were not significant in the context of the overall costs: PJ [72]. In all, her Honour was of the view that this ground was an attempt to engage in merits review.
15 Dealing next with the assessment decision, her Honour distilled the very many grounds of appeal, again by adopting a beneficial reading, to the following questions at PJ [91] (once more with my ellipsis):
…
(a) Did the Tribunal deny the applicant procedural fairness or otherwise fail to consider evidence? (Grounds 1 to 2)
(b) Did the Tribunal misconstrue or misapply provisions of the Assessment Act in determining the [father’s] ATI? (Grounds 3 to 5, 8 to 9 and 11)
16 On the first, her Honour noted that the appellant failed to specify how it was said that procedural fairness was not afforded to her, observing that the contention appeared to be framed by reference to the fact that the Tribunal preferred evidence contradictory to that of the appellant and that it conducted a hearing without first conducting or considering some form of pre-hearing conference or directions hearing in order to identify any further supporting material: PJ [93]-[94]. Her Honour reasoned that the Tribunal was not obliged to conduct a conference, did not act as an inquisitor and that it was a matter for the appellant to frame her case by reference to evidence that she chose to rely on. Further, her Honour observed that the appellant participated in a hearing before the Tribunal and was given an opportunity to provide further supplementary written submissions upon its conclusion. The Tribunal decision demonstrates that regard was had to the evidence of the appellant, though in certain respects it preferred contradictory evidence. Overall, the procedural fairness complaint was not made out.
17 On the second question, her Honour understood that “at the heart” of the appellant’s contentions is the assertion that the Tribunal failed to consider evidence of other income and benefits available to the father, which were not recorded in his taxation returns: PJ [102]. Once again, her Honour approached this issue by considering the entirety of the reasons of the Tribunal which, objectively, disclosed that it did not simply consider itself bound by the amounts recorded in the taxation returns, but assessed all of the evidence that was before it and ultimately accepted evidence contrary to that relied upon by the appellant. It was open to it to do so.
18 Finally, her Honour considered a number of residual claims which contended that the Tribunal had failed to consider relevant evidence or that the evidence was infected by the fraud of the father. These contentions were rejected as amounting to an attempt by the appellant to engage in impermissible merits review and as lacking sufficient evidence to support the serious allegations of fraud.
The appeal to this Court
19 Although my view is that replication of the 14 grounds of appeal as set out in the amended notice of appeal is unlikely to assist a reader in comprehending my reasons, nonetheless I set out those grounds in the sanguine hope that by doing so the appellant will understand why her appeal fails. The grounds read (without correction):
1. The decision involved an error of law, whether or not the error appears on the record of the decision. The decision maker made an error when considering the evidence available, they have incorrectly applied a law that they are not entitled to do so, I have an order and as such are to only apply Part 6A 98C(3) Subsection 117(4) to (9) (inclusive) apply to the Registrar/Tribunal/court in the exercise of his or her power under this Division as if: (b) any reference to an order were a reference to a determination, “effectively seeking merits review. That is not the role of this court on appeal”. An order was sought from the court which covers “significant” it is then not the registrar or Tribunal to the reapply these requirement that was done in court, the Tribunal paragraph 34 applied subsection 117(2)(b)(ia) to its decision/reason and is an error of law applied, hence only to apply Subsection 117(4) to (9) (inclusive) apply to the Registrar (or Tribunal) in the exercise of his or her power under this Division, The Tribunals applied in decision/reason paragraph 34 117(2)(b)(ia) of the assessment Act and continued to use in paragraph 35 is an error of law that cannot be applied in turn the court as well.
2. Factually incorrect, in working out of medical invoices fully paid by the mother, both parent income are taken into account, Section 117(7A)(b)(ii) provides relief from that financial liability of the mother, being the father pays those incurred invoice 100% and no other party is responsible in paying those invoice as pursed by the tribunal in transcript. This case did not turn on issues of the other parents (the payer) capacity to meet those needs, but rather on the inappropriate weight to matters of the Applicant expenses and capacity to pay.
3. Paragraph 58, Grounds 2 and 3, in formulating payment of medical invoice, are to be considered by the registrar and in turn the tribunal, before it arrives at the applicant expenses and capacity to pay being that income is disregarded in Section 117(7A)(b)(ii).
4. Paragraph 60, fraud, applicant is required to prove, I have provided documented proof of fraud, Superannuation documents, Payroll cheque Activity (provided to child support at their request, directly from his employer) his application Response to application to change your assessment, where he provided a bank overview, where he unsuccessfully redacted transaction and could still see the transaction underneath, which reviled his travel and purchase of petrol does not reconcile with what he is stating or the tribunal is stating and the fact that document signed on the 13 April 2020, seeking to have child support reduced, due to his expenses, including the property investment, contract signed on 01 Feb 2020 for sale, Mortgage was transferred on the 09 April 2020. Furthermore Morgan v Register [2010] full and frank disclosure.
5. That the decision was induced or affected by fraud. The paying parent had deliberately lied or told half-truths in evidence and documents either before the child support register or before tribunal on the matters as stated in ground 4.
6. This case did not turn on issues of the document evidence of the paying parent’s higher salary than that reported in his income tax, but rather on the inappropriate weight to matter of the requirement that of the tribunal not to investigate the paying parents’ employer. The Payroll cheque activity, was sitting before them.
7. That the decision was otherwise contrary to law. The tribunal decision finding tax returns correct contrary to any decision to the findings of Judge Kerr. Morgan v Registrar [2010] SSATACSA 20 outlines these matters at 41: The Tribunal noted that Mr Morgan is able to obtain some extra benefit by being self-employed, such as personal use of phones, fuel etc. The Tribunal decided to attribute an extra $3,000 per annum in relation to these fringe benefits.
8. This case did not turn on issues of the document evidence that the payer did not pay for petrol. This case did not turn on issues of the document evidence that the payer did not pay for Telephone
9. This case did not turn on issues of the evidence, the working out of a parent’s adjusted taxable income is not given to the tax commissioner, that’s for the registrar, his deduction for his income year attributed to property losses have been exaggerated, there’s nothing as a matter of law that makes what he put in his return dipositive and incapable of being controverted.
10. Paragraph 61 “The Tribunal did not accept those assertions” those assertions had factual document that were provided but were disregarded nor was the document evidence tested. It was regarded in the same manner as drawing the tribunal attention to documentation being misleading, Transcript “So what’s the relevance of it if he did have a preserved amount” ‘But what relevance”.
11. Paragraph 82 ATI in the first step is gathered from the ATO, and had been rule the end of the process, but its not the legislation as argued by judge Kerr, can be argued further and other components add back into the Adjusted Taxable Income, like in Morgan v Registrar [2010] adding back in petrol and the use of a phone.
12. Paragraph 83 The Tribunal did not set out my submission, it picked and choose and disregarded my submission, with no regarded to why Mr Bingham salary sacrificed package is exempt from any calculation, misleading of the Trust being continued to be paid by his employer into his supper.
13 Paragraph 84 “It is not the role of the Child Support Registrar to investigate the accuracy of information provided”. Judge Taglieri, 24 September 2021, “But it did strike me as odd that the tribunal member below Mr Taverniti when dealing with the issue of how the adjustable tax income had been arrived at, made an interesting remark about, “It’s not the tribunal’s role to investigate how that was done”. I found that a strikingly odd remark because as a former member of the Administrative Appeals Tribunal, I understand that what we conduct is a merits review’. And “But, you know, these matters do become complex and they do become matters of being absolutely pedantic and precise about chasing down evidence of various components of potential income and earnings for the purposes of that calculation. And sometimes it’s, you know, perhaps too readily acceptable that, “Well, if it has been looked at before and it has been dismissed, well, it should be dismissed again” and is also in Morgan v Registrar testing of evidence,
14. Paragraph 105 “The first respondent denied these claim” It is the transcript from case LNG69/2020 that he has had a company car for 20 years, and attached in affidavit, factually incorrect and not true.
20 I deal with the grounds seriatim. In doing so, I do not hold the appellant to the precise wording of each and I have attempted to discern any faint identification of error by the primary judge. In fairness to the appellant as a self-represented litigant, I deal with the arguments that she put to me in support of each ground orally during the hearing even where not embraced by the words of the appeal grounds.
21 The gravamen of the complaint that is made at ground 1 is that the primary judge failed to understand that the appellant had in her favour the benefit of an order made on 8 May 2019 by Judge McGuire (as his Honour then was) in the Federal Circuit Court of Australia, the effect of which was to limit the determination of the Registrar under s 98S of the Act (a determination to vary the annual rate of child support) to the matters set out at s 117(4)-(9). That submission is very difficult to follow. The Act provides that the Registrar may, by determination, vary the annual rate of child support payable by a parent, the cost percentage for a child, the child’s support income, the combined child support income of each parent and that the “costs of the children table” be varied by reference to a mathematical formula: s 98S. The Registrar may depart from an administrative assessment that is in force in relation to a child if, pursuant to s 98K, the Registrar “is of the view that, because of special circumstances that exist, the provisions of this Act relating to administrative assessment of child support should be departed from in relation to the child”. The effect of s 117 is that where the jurisdiction of a relevant court is engaged, an order may be made which varies components of child support if a ground of review is made out, including by s 117(2)(c) that “in the special circumstances of the case, application in relation to the child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child” because of the income, earning capacity, property and financial resources of the child, the parent or the earning capacity of either parent.
22 The order that is relied on by the appellant does not have the effect as contended by her. The order provides:
1. That the applicant [EOI20] have leave to bring an Application for Departure Orders out of time pursuant to section 112 of the Child Support Assessment Act (1989)(“the Act”) [sic].
2. That pursuant to section 98S of the Act the matter be referred to a Registrar for determination on the applicant’s Application.
23 Self-evidently, a grant of leave to bring an application to amend an administrative assessment that is more than 18 months old pursuant to s 112 does not amount to the making of a variation order by the court pursuant to s 118. Although this argument was not put to the primary judge, I permitted the appellant to articulate it before me and Ms Whittemore responded to it. The appellant asserts that it was not open to the Tribunal to consider for itself the special needs of a child under s 117(2) and was only permitted to consider the factors at s 117(4)-(9) because that is the effect of the orders made on 8 May 2019. There is no merit in the argument. Section 98C(2) and (3) sets out the grounds for a departure order as including s 117(4)-(9). And the orders relied on do not operate as a determination of the grounds for making a departure order. The appellant’s arguments fundamentally misunderstand the statutory scheme and the effect of the orders. Ground 1 fails.
24 Ground 2 as developed orally is a complaint that the Tribunal erred in not disregarding the appellant’s income in assessing her capacity to meet the medical costs of the children. The appellant relies upon s 117(7A)(b)(ii) of the Act, the effect (relevantly) of which is that in having regard to the income of a parent the court must disregard any entitlement of the child or the carer entitled to child support to an income tested pension, allowance or benefit. This ground fails to reveal any error by the primary judge. Her Honour reasoned at PJ [56]-[57]:
It is apparent from a fair reading of the Tribunal’s decision record that one of the key issues raised in the application was the assertion by the applicant that the first respondent had provided misleading information about his income and financial resources, including by overstating his expenses associated with his rental property and not disclosing the benefit he derived from personal use of his work phone and vehicle. Much of the Tribunal’s reasons at paragraphs [18] to [32] of the decision record go to that issue.
There is no basis on which to conclude that the Tribunal improperly considered the applicant’s entitlements to a pension, allowance or benefit contrary to the requirements of section 117(7A)(b)(ii) of the Assessment Act. The issue before the Tribunal was the first respondent’s income and financial resources, not that of the applicant.
25 There is no error in that analysis. The Tribunal at [18]-[32] did not proceed by having regard to the appellant’s receipt of or entitlement to any income tested pension, benefit or allowance. Those paragraphs concern various claims by the appellant that the father failed to declare fringe benefits as assessable income, salary sacrifice superannuation arrangements, rental property income and income from other sources. In each case the Tribunal resolved factual differences adversely to the evidence of the appellant. It was open to it to do so. And in no other paragraph which the primary judge failed to mention did it commit the error asserted by the appellant. Ground 2 fails.
26 Ground 3 amounts to this: a complaint by the appellant that the Tribunal “didn’t do any merits review” in rejecting her contention that the father should be liable for all, or significantly more, of the costs of medical treatment for the children. This ground fails to reveal any error by the primary judge. Paragraph [58] is a reference to the reasoning of the primary judge that:
By grounds 2 and 3, the applicant is seeking impermissible merits review in which she essentially takes issue with the Tribunal’s assessment of the evidence before it. The Tribunal properly, in my view, identified the issues before it as required by the Assessment Act at paragraph [12] and then proceeded to deal with those issues in turn. The findings made were reasonably open to the Tribunal on the basis of the material before it.
27 The Tribunal dealt with this component of the claim at [34]-[40] when considering the special needs of the children. The reasoning is entirely factual. On the evidence, it concluded that the most significant expenses were incurred prior to 2012. The other expenses were found to be “not significant in the context of the costs of the children” and as not supporting a finding of special circumstances “that make the administrative assessment unjust and inequitable due to the special needs of the children”. The primary judge was entirely correct to conclude that this finding was reasonably open to the Tribunal. Once again, the appellant attempts to undertake impermissible merits review. This ground fails.
28 Ground 4 is a generalised allegation of serious fraud by the father in failing to disclose his actual income. It fails to identify error by the primary judge and is a repetition of the same ground that was put to her Honour. In dismissing it as having no merit her Honour said at PJ [60]-[62]:
By grounds 4 and 5, the applicant alleges that the Tribunal’s decision is vitiated by fraud. It is trite to say that such a claim is a very serious one and one which the applicant is required to prove.
In this case, the applicant alleges that the first respondent has not fully disclosed his income or his financial resources. She has maintained these allegations throughout these proceedings and in previous proceedings, which have been referred to above. Indeed, she maintained those allegations in the hearing before the Tribunal, as evidenced in the transcript annexed to her affidavit of 29 March 2021. Ultimately, the Tribunal did not accept those assertions.
The applicant has not, in her Notice of Appeal, particularised the alleged fraud nor has she led any evidence to support those assertions. In those circumstances, the applicant has not discharged the burden of proof in relation to this allegation and grounds 4 and 5 have therefore not been made out.
(Footnotes omitted.)
29 The appellant has not identified why that reasoning is erroneous. Put at its highest, her submissions were to the effect that there was some material before the Tribunal to the effect that the father had failed to truthfully disclose his income and assets. I was taken to property searches relating to an investment property that was owned, or partly owned, by the father and which was sold on 13 April 2020. It was put to me that the father fraudulently failed to tell the Registrar of the sale of that property. However, as I attempted to point out to the appellant, there is a distinct difference between the date on which a contract of sale is entered into and the date on which a conveyance pursuant to a contract settles with a consequent transfer of title. The essential point that the appellant sought to make is that the father “is deceiving the child support [registrar] by making out he is still renting it when he’s actually signed the contract in February” was not accepted by the Tribunal. The fraud allegations also embrace various contentions to the effect that the father failed to truthfully disclose his taxable income and employment benefits and superannuation and salary sacrificing arrangements, including by way of descent into detailed particulars about the distances travelled by the father to a supermarket whilst in a company vehicle.
30 The primary judge was correct in observing that the appellant’s material did not establish fraud by the father. As I have noted, the Tribunal carefully assessed the evidence relating to the income of the father and concluded that it was reliable and it made findings accordingly. Further, the Tribunal did deal with the rental property sale issue at [25]-[26]. It found that the father, and in turn his partner, purchased the property in 2017, they separated and then rented it until it was sold in April 2020 at a loss. A finding was made that the father’s income tax returns correctly included the rental income. It rejected the appellant’s claim that what should be included was the gross rental, prior to property related deductions. It was correct to do so. Any difference between the contract date for the sale of that property, the discharge of the mortgage and settlement of the conveyance does not establish the serious fraud for which the appellant contends. Even though the primary judge did not specifically mention the rental property issue, her overall conclusion on the fraud allegations was manifestly correct. As Ms Whittemore succinctly answered these various contentions in her written case:
[T]he appellant does not explain how the Tribunal erred in finding that the benefits received by the second respondent in connection with his employment were recorded in his tax returns or otherwise made very little difference to the amount of child support payable. Nor can the appellant point to any error in the Tribunal’s conclusion that the second respondent worked for an arm’s length employer and that there was no evidence before it to suggest the second respondent’s income was higher than reported by his employer. As the primary judge correctly held, the Tribunal’s findings were open for the reasons it gave. This contention rises no higher than an invitation to the Court to impermissibly engage in a review of the merits of the Tribunal’s decision.
31 I agree. Ground 4 seeks to engage in impermissible merits review and in any event is of no merit.
32 Ground 5 does not differ in substance from ground 4 and fails for the same reasons.
33 Ground 6 is couched in the language of failure by the Tribunal to give appropriate weight to certain evidence and to investigate the father’s employer records. Neither is an error of law on which the appeal to the primary judge may have succeeded. Weight is a matter for the Tribunal and it is not an investigator as explained by the primary judge at PJ [84]. There is no error in that conclusion and this ground fails.
34 Ground 7 as drafted is impenetrable in meaning. In answer to my questions, the appellant revealed that it is another way of framing her argument that the Tribunal wrongly accepted the income tax returns as evidence of the father’s income. The primary judge dealt with a similar contention to the same effect at PJ [102]-[107]:
The substance of these grounds is that the Tribunal felt that it was bound to use the figures in the first respondent’s tax returns for the purposes of calculating his adjusted taxable income to work out his child support obligations. At the heart of these grounds is an assertion that the Tribunal, improperly, failed to consider other income and benefits available to the first respondent.
The second respondent concedes that whilst sections 56 and 57 of the Assessment Act deems a parent’s taxable income to be the amount as assessed by the ATO, it is for the decision maker to determine other components of the parent’s adjusted taxable income.
However, as submitted by the second respondent, this statutory framework does not preclude the decision maker from having regard to the figures arrived at by the ATO or to give such weight as they consider appropriate to such figures.
In this case, the applicant made numerous assertions about the first respondent obtaining additional benefits from his workplace not disclosed in his tax returns, including for example, the financial benefit of having access to a work phone and a work car. The first respondent denied these claims and maintained that he had purchased his own car because the work vehicle was not available to him for personal use.
When the Tribunal’s reasons are read fairly and as a whole, it is clear that the Tribunal did not consider itself bound by the ATO’s figures for the purpose of calculating the first respondent’s adjusted taxable income.
I accept the submissions for the second respondent that a fair reading of the Tribunal’s reasons make it clear that the Tribunal understood its statutory task, engaged with the submissions and evidence made and led by the applicant and ultimately made findings which were open on the evidence before it.
(Footnotes omitted.)
35 There is simply nothing in the appellant’s arguments which points to error in that reasoning of the primary judge. This ground fails.
36 Ground 8 is another contention that the Tribunal failed to take account of arguments of the appellant that the father’s adjusted taxable income should have taken account of a fuel fringe benefit and is a variation on the theme of ground 4. It fails for the same reasons.
37 Ground 9 asserts that the father’s deductible expenses for the rental property were exaggerated. I have dealt with this in considering ground 4. I do not repeat my reasons. This ground fails.
38 Ground 10 asserts error by the primary judge at PJ [61]. It takes one sentence out of context and distorts it as the basis to construct an argument of error. Paragraphs [60]-[62] are excerpted above.
39 Beyond orally asserting that the point of this ground is that the primary judge “overlooked material that was before the Tribunal”, the appellant failed to explain what error the primary judge committed. On its face that is an invitation to engage in merits review. No error by the primary judge is made out and this ground fails.
40 Ground 11 traverses old territory: the assertion that the Tribunal should not have accepted the father’s income tax returns as evidence of his taxable income and ought to have accepted the appellant’s material and submissions that certain employment benefits be added back to derive his true income for the purpose of determining the adjusted taxable income pursuant to the Act. The same argument was put to and rejected by the primary judge at PJ [82]-[85]:
At paragraphs [4] and [5] of the Tribunal’s decision record, the Tribunal sets out the relevant statutory provisions relevant to the meaning of the term ‘adjusted taxable income’ for the purposes of the Assessment Act. At paragraph [6], the Tribunal set out the basis on which it calculated the first respondent’s adjusted taxable income in accordance with those statutory provisions.
At paragraph [7], the Tribunal set out the submissions made by the applicant as to why the second respondent ought not to accept the adjusted taxable income so calculated. At paragraph [8], the decision record notes that the applicant was provided with additional time to make further written submissions. In that time, the first respondent also provided a copy of his 2018/2019 tax return which was also forwarded to the applicant. The Tribunal records that the applicant provided the Tribunal with a copy of a redacted transcript of the proceedings before Kerr J and argued that comments by Kerr J supported her submission.
At paragraphs [9] to [11], the Tribunal comments on the purpose and intent of the statutory scheme by which a person’s adjusted taxable income is calculated for the purposes of child support assessment and notes that it is not the role of the Child Support Registrar to investigate the accuracy of information provided by the first respondent’s employer to the ATO. Moreover, having calculated the first respondent’s adjusted taxable income in accordance with the statutory pathway, the Tribunal further noted that it could not be satisfied that there was any basis to set aside that decision.
At paragraph [12], the Tribunal concluded that the legislation has been correctly applied to determine the first respondent’s adjusted taxable income for the period from 1 November 2019 and therefore affirmed the objections officer’s decision.
41 There is nothing in this ground or the arguments in support of it that reveal error in that reasoning. As explained in more detail by Ms Whittemore in her written submissions:
By these grounds, the appellant appears to contend that the Tribunal impermissibly considered itself bound to accept the figures in the second respondent’s tax returns as assessed by the ATO for the purposes of calculating the second respondent’s ATI under the Assessment Act. The appellant contends that the Tribunal did not consider other evidence of the second respondent’s income and various other items reported in his tax return.
A parent’s ATI is to be calculated by reference to the matters in s 43(1) of the Assessment Act. Unlike ss 56-57 of that Act, which deem a parent’s taxable income to be the amount assessed by the ATO, the calculation of the other components of a parent’s ATI is to be undertaken by the decision-maker. That is, there is no equivalent deeming provision requiring a decision-maker to accept the figures calculated by the ATO regarding the other components of a parent’s ATI for the purposes of the Assessment Act. However, it does not follow that the decision-maker can never use the figure(s) arrived at by the ATO. Nor is the decision-maker precluded from giving the ATO’s assessment significant, if not determinative, weight in circumstances where it will often by the best evidence of a person’s ATI. Further, contrary to the apparent assertion of the appellant and as noted above, the decision-maker is under no general obligation to go behind the figures in a parent’s tax return as assessed by the ATO, and it will be open, in an appropriate case, for the Tribunal to have regard to all the evidence before it and find that the correct ATI for the purposes of s 43 of the Assessment Act is the figure assessed by the ATO.
The Tribunal’s reasons disclose that it understood its statutory task, namely that it was required to determine the second respondent’s ATI for itself by considering his taxable income “together with the other elements identified in subsection 43(1) of the [Assessment] Act”. The Tribunal discharged its statutory task by making findings that were open to it on the evidence and material before it.
It was incumbent upon the appellant to make good her assertions that the ATO figures were inaccurate by providing cogent supporting evidence. The Tribunal was not required to make the applicant’s case for her, nor was it required to investigate the accuracy of the ATO’s figures on the basis of her request alone that it do so. The Tribunal engaged with the appellant’s claims and evidence contradicting the ATO’s figures, gave due consideration to her request to investigate those figures, and made findings that were open to it. No error has been demonstrated in the primary judge so finding.
(Original emphasis. Footnotes omitted.)
42 Ms Whittemore is correct in her analysis, which I adopt. This ground fails.
43 Ground 12 is a subset of ground 11 and fails for the same reason.
44 Ground 13 appears to quarrel with the reasoning of the primary judge at PJ [84] that it is not the function of the Registrar, and I infer the Tribunal on review, to investigate the accuracy of information provided by the father’s employer. That observation is unremarkable: the Tribunal is not bound, save in exceptional circumstances, to make its own inquiries. In Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39 (SZIAI) the Court did not accept that the Refugee Review Tribunal was bound to make inquiries beyond the material placed before it. French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said at [24]-[25]:
Mason CJ and Deane J in Teoh also rejected the proposition that failure by a decision-maker to initiate inquiries could constitute a departure from common law standards of natural justice or procedural fairness. It is difficult to see any basis upon which a failure to inquire could constitute a breach of the requirements of procedural fairness at common law. The facts of this case, in any event, even considered without reference to s 422B of the Migration Act, do not show a basis for a complaint of want of procedural fairness.
Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case…
(Footnotes omitted.)
45 See also Aronson M, Groves M and Weeks G, Judicial Review of Administrative Action and Government Liability (7th ed, Thomson Reuters, 2022) at [6.170]-[6.190] for a comprehensive analysis as to why “[t]here is no freestanding and generic duty to inquire”.
46 To the extent that the appellant relies upon certain remarks of Judge Taglieri in argument on 24 September 2021, during the hearing of application LNG 41 of 2021 which involved the same parties to this appeal, I observe that her Honour dealt with an application to set aside an earlier decision of the Tribunal as infected by an error of law, was satisfied that there was vitiating error and made the orders by consent. When one reads the entirety of her Honour’s remarks in context it is clear that she was concerned with apparent acceptance by a Tribunal member that it was not for the Tribunal to investigate how the Registrar arrived at a figure for adjusted taxable income. What her Honour relevantly said was:
HER HONOUR: Well, that’s what I’m concerned about. But I don’t know whether it has been thoroughly looked at. But it did strike me as odd that the Tribunal member below Mr Taverniti when dealing with the issue of how the adjustable tax income had been arrived at, made an interesting remark about, “It’s not the Tribunal’s role to investigate how that was done”. I found that a strikingly odd remark because as a former member of the Administrative Appeals Tribunal, I understand that what we conduct is a merits review.
MR TAVERNITI: Yes.
HER HONOUR: So investigating how the Registrar arrived at a particular figure for the adjustable tax income, I would have thought is what the Tribunal does have to turn its mind to.
MR TAVERNITI: Sorry, I didn’t mean to interrupt, your Honour.
HER HONOUR: No. So I’m not sure – obviously, I wasn’t the member hearing that matter. I don’t know the detail of the evidence that was put before that member because I haven’t got that before me right now. I haven’t considered it yet. But, you know, these matters do become complex and they do become matters of being absolutely pedantic and precise about chasing down evidence of various components of potential income and earnings for the purposes of that calculation. And sometimes it’s, you know, perhaps too readily acceptable that, “Well, if it has been looked at before and it has been dismissed, well, it should be dismissed again”.
I’m just asking you to thoroughly explore what [EOI20’s] concern is so that when it does get heard by the AAT below, a proper merits review is undertaken and everything is looked at. So that we don’t have [EOI20] making an appeal to us saying, “Well, the member didn’t consider this and didn’t look at that” etcetera et cetera. Because if, on the face of the decision, the member certainly did because it’s referred to in submissions that the Registrar has put and made, then it should be apparent on the record whether it has been properly dealt with or not. And [EOI20] will then either know that everything has been considered and therefore, she has no grievance, even though she doesn’t like the outcome. Or alternatively, “Well, I have read the decision and I still think there’s a problem with it”. And she can articulate her appeal point very clearly to this court. I’m certainly not having – being critical of you whatsoever. I’m just hoping to avoid this – what frankly looks like a merry-go- round to me.
47 Considered as a whole, her Honour did not state some principle of general application inconsistently with SZIAI and nor did she say that the Tribunal must investigate for itself the accuracy of information provided by the father’s employer. These tasks were for the appellant to address in the framing of her case. Accordingly, there is no merit in this ground.
48 Ground 14 fails as once again, it is an invitation to engage in merits review of the material before the Tribunal and to form views about the facts inconsistently with its findings. The primary judge made this point clearly and unremarkably at PJ [105]-[107] as extracted above.
Conclusion
49 The appellant feels aggrieved. However, as I and the primary judge have demonstrated, there is no legal basis to any of her contentions of error which found her dissatisfaction with the outcome of each of her applications. The appeal must be dismissed and there is no reason why costs should not be awarded as sought by the first respondent. I order as follows:
1. The appeal is dismissed.
2. The appellant is to pay the first respondent’s costs as assessed.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McElwaine. |
Associate:
