AEL24 v Child Support Registrar [2025] FedCFamC2G 1174

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

Note: Section 110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in child support proceedings.

IT IS NOTED that publication of this judgment under a pseudonym is approved pursuant to s 110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).

1. On 16 January 2024, the Notice of Appeal dated 11 December 2023 was accepted for filing after having been lodged by the applicant in regard to a decision made by the Administrative Appeals Tribunal (AAT) on 30 October 2023.
2. Leave was given by this court on 30 April 2024 for the Notice of Appeal to be filed out of time.
3. In the Notice of Appeal, the applicant sought the following order:

The decision made by the respondent on 22 November 2023 be set aside and the matter be referred to the respondent for review with directions if appropriate

1. Although the Notice of Appeal contains the wrong date for the AAT decision, the court acknowledges that the applicant is referring to the tribunal decision of 30 October 2023
2. In the Notice of Appeal, the applicant set out the following questions of law:
   1. The respondent denied procedural fairness to the applicant.
   2. Under the Administrator's Decisions (judicial review) Act 1977 - section 5(1)(a) - that a breach of the rules of natural justice occurred in connection with the making of the decision.
   3. Under the Administrator's Decisions (judicial review) Act 1977 - section 5(3)(b) - the grounds specified in paragraph (1)(h) shall not be taken to be made out unless; (b) the person who made the decision on the existence of a particular fact, and that fact did not exist.
   4. Under the Administrator's Decisions (judicial review) Act 1977 - section 5(1)(h) - that there was no evidence or other material to justify the making of the decision.
   5. Under the Administrator's Decisions (judicial review) Act 1977 - section 5(1)(f) - that the decision involved in error of law, whether or not the error appears on the record of the decision.
3. In the Notice of Appeal, the applicant sets the following grounds of appeal:
   1. A fundamental misinterpretation of the tax law in respect to the decision made by the respondent "the beneficiary trust loan is found to be a financial resource in the trust available to [AEL24] for child support purposes, irrespective of whether withdrawn and distinct to accounting for taxation purposes". This is an important issue in the case ruling and has effectively doubled the trust income and triggered an incorrect variation to the outcome decision made.
   2. The respondent will not allow an explanation from the accountant and as such has misinterpreted the information's fundamental aspects of tax income used to determine child support and as such has erred in her ruling.
   3. The respondent ruled that the applicant paid for voluntarily out of school excursions contrary to CSA child support obligations required by both parties.
   4. Right to respond - natural justice - that the applicant was refused a right to respond to the evidence interpreted in making the decision.
   5. The financial information supplied was misinterpreted.
   6. The respondent made the decision based on a fact that does not exist.
4. The matter proceeded to a hearing of the appeal on 23 October 2024 whereby the applicant (the father) was self represented.
5. The first respondent (Child Support Registrar [CSR]) was legally represented
6. The second respondent (the mother) was self represented but did not file any material or make any submissions.
7. The third respondent (Administrative Appeals Tribunal [AAT]) did not attend.
8. Although not specifically requested, there is various material before the court provided by the applicant which required leave to be given, prior to this material being able to be relied upon at the appeal.
9. On an appeal on a question of law the court may receive further evidence for the purpose of making findings of fact, but the court cannot receive such evidence for the purpose of demonstrating an error of fact and in that regard, consideration must be had to the observations of Brennan J in Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54 at [28]:

The error of law which an [applicant] must rely on to succeed must arise on the facts as the AAT has found them to be or it must vitiate the findings made or it must have made the AAT to omit to make a finding it was legally required to make. There is no error of law simply in making a wrong finding of fact. Therefore an [applicant] cannot supplement the record by producing fresh evidence merely in order to demonstrate an error of fact

1. Whilst the applicant submits in his written submissions that the applicant's accountants (C Firm) affidavit filed on 8 July does not constitute fresh evidence but rather clarifies tax law errors, I disagree.
2. I find that this affidavit is clearly fresh evidence designed to supplement the record in order to demonstrate an alleged error of fact and as such I find that leave not be granted for the affidavit to be relied upon for the purposes of the appeal.
3. I make the same finding as to the "Whom it may concern" letter from D Firm dated 11 December 2023 marked Annexure "B" in the applicant's affidavit and therefore leave has not been granted to the applicant to rely on this document.
4. As to the financial statements marked Annexure "C" the evidence supports that these documents more than likely would have been in existence and were either before the AAT or could have been placed before the AAT to enable them to make their decision.
5. Leave has not been granted to the applicant to rely on this document.
6. Leave has therefore not been given for any additional material to be relied upon by the applicant.
7. Consideration has been given to the written submissions of the applicant and the second respondent.
8. Before considering the appeal, it is necessary to consider a party's right to appeal.

1. This is an appeal from the decision of the AAT dated 30 October 2023 in review number ... pursuant to section 44AAA Administrative Appeals Tribunal Act 1975.
2. Section 44AAA(1) allows a party to appeal to the Federal Circuit and Family Court of Australia (Division 2) on a question of law from any decision of the AAT.
3. As stated in BVG17 v BVH17 [2019] FCAFC 17; (2019) 268 FCR 448 and HGMZ v Secretary, Department of Social Services [2012] FCA 280, the court in determining such an appeal is exercising original jurisdiction limited to issues on a question of law only as an appeal does not constitute a rehearing of the matter on its merits.
4. The Full Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 stated that the nature of the task of the court is clear; namely to leave to the tribunal fact decisions as to facts and to only interfere where the identified error is one of law.
5. In order for the appeal to be considered on a question of law, the question of law must, according to Haritos v Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315, be stated with sufficient precision.
6. The Full Court in Child Support Registrar & Crowley and Anor [2015] FamCAFC 76 at [24] notes that:

A consequence of the confined nature of appeals from the Tribunal to the FCCA is a requirement that the grounds of appeal to that court be drawn with particular precision and with a precision which bears that restriction firmly in mind.

1. Before determining the appeal it is useful to capture a brief history of this matter and in particular the history surrounding the making of the AAT decision.

1. The parties' written submissions comprehensively set out the history of this matter and rather than repeating this history I find that the salient points are as follows:

(a) The applicant and the second respondent separated in 2016.

(b) After separation one child (X) lived with the applicant (father) and one child (Y) lived with the second respondent (mother).

(c) A child support assessment was made against the applicant in relation to Y in 2017.

(d) After two reviews were undertaken as to the applicant's adjustable taxable income, (ATI) the applicant objected and, the objection was heard by the Administrative Appeals Tribunal (AAT) with a written decision issuing from the responsible member on 30 October 2023.

(e) The findings of the AAT are as follows:

(i) For the child support period 15 August 2022 until a terminating event Y occurs, AEL24's adjusted taxable income is varied to $115,000 per annum, to be increased on 1 January 2024 and each year thereafter by the national weighted average Consumer Price Index figure for the preceding September quarter; and

(ii) For the period 1 July 2023 to 30 June 2024 AEL24's annual child support liability is increased by $2429.

(f) The decision of the AAT is lengthy, consisting of 13 pages.

(g) For the purposes of the hearing:

(i) The applicant and the second respondent appeared by conference telephone.

(ii) The applicant and the second respondent gave evidence on affirmation.

(iii) The AAT adjourned to allow the applicant and the second respondent to provide further information; the nature of which had been raised at the hearing.

(iv) The additional information was received by the AAT which was subsequently distributed to the applicant and the second respondent.

(v) The AAT considered the applicant and the second respondent's submissions as well as documentary material and the additional documents provided by the applicant and the second respondent.

(vi) The AAT had access to and considered three exhibits; Exhibit 1 (comprising of folios 1 to 656), Exhibit A (comprising of pages A1 to A 185) and Exhibit B (comprising of pages B1 to B 16). The exhibits are not before this court and therefore the contents are unknown.

(vii) The written decision comprehensively sets out the law and the authorities relied upon by the member in reaching the decision.

(viii) In [22] to [41] of the decision the applicant's income, property and financial resources are set out in detail.

(ix) At [28] there is a table which provides a summary of the applicant's financial information disclosed in evidence which makes reference to trust distributions for the years from 2019 until 2023.

(x) A finding was at [37] that although there has been a change in the trustee company structure in June 2022, the effective control of the trust continued to rest with the applicant and based on this finding further findings were made that the applicant's ATI for the relevant period under review was at least $115,000 which was significantly more than the applicant's individual ATI.

(xi) Subsequently it was concluded by the tribunal that there were special circumstances in this case and grounds to depart from the administrative formula.

(xii) Consideration was then given as to whether it was just and equitable to the applicant and the second respondent for there to be a departure from the administrative assessment as set out in [42] to [51] of the decision.

(xiii) Consideration was then given to the proper needs of the child as set out in [52] to [56] and the date of effect of any departure as set out in [57] to [63].

(xiv) It was concluded that a departure was appropriate, and the decision was made in October 2023 by the AAT to adjust the applicant's ATI and to increase the annual child support liability for Y over one year.

(xv) On 27 November 2023 the applicant emailed the AAT although a copy of that email has not been provided to this court.

(xvi) On 27 November 2023 an email was sent from AAT to the applicant which reads:

Your request of 27 November 2023 that the decision requires correction was referred to the Presiding Member for consideration. Your request has not been granted. Member [E] provided the following:

In response to [AEL24]'s email dated 27 November 2023, the beneficiary trust loan is found to be a financial resource in the trust available to [AEL24] for child support purposes, irrespective of whether withdrawn and distinct to accounting for taxation purposes. [AEL24]'s email refers to beneficiary loans in 2021 and 2022. [AEL24]'s ATI in the change of assessment determination relates to beneficiary loan in 2023. No correction to my decision or written reasons

1. Consideration will now be given as to the merits of the appeal.

1. In the Notice of Appeal, the applicant sets out five questions of law.
2. I adopt and agree with the CSR's written submission at [26] that the Notice of Appeal does not state any proper question of law sufficient to enliven the court's jurisdiction and that the questions are nothing more than generic statements of potential errors that bear no connection to the facts and circumstances of the case.
3. However, in fairness to the applicant who is a self represented litigant, consideration will be given to the grounds of appeal in determining whether any error of law by the AAT has been established.
4. Consideration will now be given as to whether the grounds of appeal are sufficient to establish that an error of law has been made by the AAT with each ground considered separately.

A fundamental misinterpretation of the tax law in respect to the decision made by the respondent "the beneficiary trust loan is found to be a financial resource in the trust available to AEL24 for child support purposes, irrespective of whether withdrawn and distinct to accounting for taxation purposes". This is an important issue in the case ruling and has effectively doubled the trust income and triggered an incorrect variation to the outcome decision made

1. I find that Ground One is without merit and must fail as it refers to the contents of correspondence by the AAT provided post the tribunal's delivery of their decision.
2. Therefore, as a statement was not part of the decision, then it is incapable of being appealed.

The respondent will not allow an explanation from the accountant and as such has misinterpreted the information's fundamental aspects of tax income used to determine child support and as such has erred in her ruling

1. I find that Ground Two is without merit and must fail for the following reasons:

(a) There was significant information available to the AAT and the applicant was given ample opportunity (which was taken up by the applicant) to provide additional information to the AAT for the purposes of the hearing.

(b) This information was comprehensively considered in making the decision.

(c) There is no evidence to support that the AAT did not allow the information or that the information was mis-interpreted in their making the decision.

(d) The decision clearly sets out how the beneficiary loans were treated where it is not the task of the tribunal to undertake a detailed accounting exercise (citing Shearer & Benson (SSAT Appeal) [2011] FMCA Afam 623 at [28]) but to consider the parents' income and financial resources for child support purposes in light of the objectives of the child support legislation.

(e) I agree with CSR's written submission at [29] that the applicant has failed to meet the high threshold of demonstrating that any asserted errors affecting the AAT's treatment of the beneficiary loans infected the tribunal's final decision.

(f) Therefore, this ground of appeal must fail.

The respondent ruled that the applicant paid for voluntary out of school excursions contrary to CSA child support obligations required by both parties

1. I find that Ground Three is without merit and must fail for the following reasons:

(a) The applicant's child support liability for the period of 1 July 2023 to 30 June 2024 was increased by $2,429 to reflect a contribution to be made by the applicant towards the child's UK school excursion.

(b) During the course of the hearing, it was noted by the AAT that both parents wished for Y to attend the excursion ([56]).

(c) I find that no error in law has been established as it is open to the AAT to make such a finding where the parents have an expectation that the child would attend the excursion as part of her education ( section 117(4)(b) and 117 (6) (a) Child Support (Assessment) Act 1989).

(d) Therefore, this ground of appeal must fail.

Right to respond - natural justice - that the applicant was refused a right to respond to the evidence interpreted in making the decision.

1. I find that Ground Four is without merit and must fail as this is not a valid ground of appeal.

The financial information supplied was misinterpreted

1. I find that Ground 5 has been addressed and forms part of Ground Two and therefore is without merit and must fail based on the findings made in respect to Ground Two.

The respondent made the decision based on a fact that does not exist.

1. I find that Ground 5 is without merit and must fail as there is no evidence before the court of any fact that the decision has been based upon where that fact does not exist.

1. As the grounds for appeal has failed to establish an error in law by the AAT, then I have no choice but to dismiss the applicant's appeal.

1. Costs have been incurred by the first respondent (CSR) and the third respondent (AAT) and accordingly directions have been made for the filing of cost submissions by the applicant and the second respondent and third respondents.
2. Directions have not included the first respondent as the mother was a self-represented litigant
3. Otherwise, judgment as to costs is hereby reserved.

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Turner.