P v Child Support Registrar

REASONS FOR JUDGMENT 1 In this matter, the applicant, who I will refer to in this judgment as Mr P, appeals from a decision of the Administrative Appeals Tribunal (Tribunal) given on 25 June 2013 at Sydney. The proceedings in the Tribunal that are the subject of this appeal concerned a review of a decision of the Social Security Appeals Tribunal. That decision was itself a review of a decision of the first respondent, the Child Support Registrar, under the Child Support (Assessment) Act 1989 (Cth) (the Act). 2 It is unnecessary, for the purposes of this application, to go into the factual background or the precise nature of the decision that was the subject of review by the Tribunal. There is, however, one aspect of the procedural history that is relevant to this application. The decision of the Tribunal that is the subject matter of this appeal followed the remittal of the matter to the Tribunal as a result of an earlier successful appeal to this Court by Mr P. That earlier appeal was heard by Buchanan J who handed down his judgment on 29 November 2012: P v Child Support Registrar [2012] FCA 1398. The ratio of the decision by Buchanan J was that the Tribunal had erred in law by failing to comply with section 54A(3) of the Act because it had found, in effect, that the child of Mr P and the second respondent, Ms M, was in the care of both Mr P and Ms M during a period whilst the child was at boarding school. 3 The application before me today is an interlocutory application filed by Mr P on 9 October 2013. That interlocutory application is supported by an affidavit of Mr P sworn on 9 October, though dated on the front page 30 June 2013. 4 The essence of the application is that this appeal should be listed for hearing before the Full Court and the current hearing date which is 28 October 2013 should be vacated. For the reasons that follow, I decline to make that order and I dismiss the interlocutory application. 5 These proceedings are an appeal pursuant to section 44 of the Administrative Appeals Tribunal Act 1975(Cth) (the AAT Act). Whilst these proceedings are referred to as an appeal, they are not an appeal in the strict sense. Rather, the proceedings lie in the original jurisdiction of this Court under subsection 19(2) of the Federal Court of Australia Act 1976 (Cth) (FCA Act). Subsection 20(1) of the FCA Act provides as follows: 20(1) Except as otherwise provided by this Act or any other Act, the original jurisdiction of the Court shall be exercised by a single judge. 6 In relation to appeals pursuant to section 44, subsection 44(3) of the AAT Act provides as follows: 44(3) The Federal Court of Australia has jurisdiction to hear and determine appeals instituted in that Court in accordance with subsections (1) and (2) and that jurisdiction: (a) may be exercised by that Court constituted as a Full Court; (b) shall be so exercised if: (i) the Tribunal's decision was given by the Tribunal constituted by a member who was, or by members at least one of whom was, a presidential member; and (ii) after consulting the President, the Chief Justice of that Court considers that it is appropriate for the appeal from the decision to be heard and determined by that Court constituted as a Full Court; and (c) shall be so exercised if the Tribunal's decision was given by the Tribunal constituted by a member who was, or by members at least one of whom was, a Judge. 7 It is readily apparent that neither paragraph 44(3)(b) or (c) is applicable in this case. The Tribunal in this matter was not constituted by a presidential member or a Judge. In relation to paragraph 44(3)(a), whilst that paragraph provides that an appeal under section 44 "may" be exercised by the Court constituted as a Full Court, that provision must be considered in light of subsection 20(1A) of the FCA Act which provides as follows: 20(1A) If the Chief Justice considers that a matter coming before the Court in the original jurisdiction of the Court is of sufficient importance to justify the giving of a direction under this subsection, the Chief Justice may direct that the jurisdiction of the Court in that matter, or a specified part of that matter, shall be exercised by a Full Court. 8 I should also note in this context that subsection 20(2) of the FCA Act provides that: 20(2) The jurisdiction of the Court in a matter coming before the court from a tribunal or authority (other than a court) while constituted by, or by members who include, a person who is a Judge of the Court or of another court created by the Parliament shall be exercised by a Full Court. 9 Again, it is readily apparent that subsection 20(2) does not apply to the circumstances of this case. It follows that if this matter is to be heard by a Full Court, it must be as a result of the application of paragraph 44(3)(a) of the AAT Act and subsection 20(1A) of the FCA Act. 10 In light of these provisions, it is doubtful that I have the power to make the order sought in the interlocutory application that the matter be listed for hearing before the Full Court. As I have said, that would be a matter for a direction by the Chief Justice under subsection 20(1A) if the Chief Justice considered it appropriate. 11 In any event, in my opinion, this is not a matter that is of sufficient importance to justify the giving of a direction under section 20(1A) of the FCA Act that the matter be heard by the Full Court. 12 The basis for the application by Mr P is set out in Mr P's affidavit sworn on 9 October 2013. Mr P asserts in that affidavit, in effect, that at the directions hearing of the matter before Robertson J on 17 July 2013, his Honour raised whether any party would be submitting that the judgment Buchanan J was wrong, or intended to question the correctness of any aspect of Buchanan J's decision. Mr Gouliaditis, who appeared for the first respondent before Robertson J, is said by Mr P to have agreed that the first respondent would not question the judgment of Buchanan J. Mr P says that at the directions hearing he agreed with Mr Gouliaditis. 13 Mr P asserts in his affidavit that when he read the written submissions of the first respondent, which were filed on 8 October 2013, it was apparent to him that the first respondent or his lawyers had resiled from the concession or agreement before Robertson J. What I take that to mean is that Mr P asserts that the first respondent will, in its submissions on this appeal, be they written or oral, question the judgment of Buchanan J in some relevant way. For this reason it is said that it is not appropriate for a single judge to hear the appeal. 14 I will come back in due course to outline the oral arguments that were articulated before me today by Mr P. Suffice it to say at this stage that they differ somewhat from what is, or what appears to be, advanced in Mr P's affidavit in support of the interlocutory application. 15 I have read the transcript of the directions hearing that occurred before Robertson J, that transcript having been annexed to the affidavit of Mr Gouliaditis sworn on 11 October 2013 and relied on by the first respondent in relation to this interlocutory application. I have also read the amended notice of appeal filed by Mr P, the first respondent's written submissions and Mr P's written submissions, including his written submissions in reply recently filed. I have also read the decision of the Tribunal that is the subject matter of this appeal and the judgment of Buchanan J to which I have referred. 16 Based on my reading of those documents, including the written submissions filed thus far, in my opinion, there is no basis for Mr P's contention that the first respondent proposes to question Buchanan J's judgment. At the hearing of the interlocutory application, Mr Gouliaditis confirmed that the first respondent would not be submitting that any aspect of Buchanan J's judgment was wrong. 17 In his oral submissions before me today, the argument that was advanced by Mr P differed somewhat from what appears to have been put forward in his affidavit. The essence of Mr P's oral submissions was that, having read the first respondent's submissions, he felt that it was necessary for him to "quarrel" with some of the observations made by Buchanan J in order to properly advance his appeal. 18 Mr P identified, at my request, the paragraphs of Buchanan J's judgment that he felt that he may need to, or would, "quarrel" with at the hearing of this appeal. Mr P identified, essentially, three paragraphs of Buchanan J's judgment, those being paragraphs 11, 29 and 35. I have read those paragraphs of Buchanan J's judgment. 19 In paragraph 11, Buchanan J makes some observations concerning his understanding of the facts (including agreed facts) and the respective position of the parties in relation to the issues that needed to be decided when the matter was first heard by the Tribunal. One of the matters that Buchanan J observed was that both parties assumed, both before the Tribunal and apparently before his Honour, that it was either necessary or appropriate, for the purposes of determining the percentage of care, to attribute specific periods that the child spent at boarding school to either parent. 20 It does not seem to me any issue or question of law on this appeal will turn on the correctness or otherwise of the observations made by Buchanan J in paragraph 11 of his Honour's judgment. Nothing said by Buchanan J in relation to his understanding of the facts at that earlier stage in the proceedings could bear on any question of law properly arising on this appeal. In relation his Honour's reference to the assumption that it was necessary to attribute the child's time at boarding school to either parent, it is true that Buchanan J expresses a view that this assumption appeared to him to be "less than sound." Later in the judgment (at [31]), his Honour states that it was "not clear" whether this was required by the relevant provisions of the Act. As I understand it, Mr P will argue on this appeal that, contrary to Buchanan J's observation, the assumed position when this matter was first before the Tribunal was in fact sound because the effect of section 54A(3) is that it is necessary to apply section 54A to work out the percentage of care for the purposes of section 50 of the Act. That would require the attribution of time spent by a child, for example at boarding school, to either parent. 21 Importantly, however, the question whether it is mandatory to apply section 54A in working out the percentage of care was neither argued before Buchanan J nor decided by his Honour. That is clear not only from what his Honour said at [11], but also from the fact that the Tribunal, when the matter was remitted to it, considered that it was necessary for it to decide whether it was necessary or desirable to apply section 54A in deciding this matter. I can accordingly see no difficulty with the Court constituted by a single judge entertaining or considering Mr P's submissions concerning the correctness or otherwise of the observations made by Buchanan J in relation to this issue, given they are clearly obiter and the issue was not fully argued before his Honour. 22 The second paragraph that Mr P took me to was paragraph 29 of Buchanan J's judgment. In brief terms, what Mr P submitted today was that he took issue with, or to use his word, would like to "quarrel" with, the use of the word "wellbeing" in this paragraph. The argument that Mr P would wish to advance in relation to that is that the word "wellbeing" is not used in the Act or indeed is not used in the Family Law Act 1975 (Cth). Mr P's submission is that the word "wellbeing" has nothing to do with the issues that were before the Tribunal. 23 In my opinion, no question of law is likely to arise on this appeal in relation to the use of the word "wellbeing" in paragraph 29 of Buchanan J's judgment. Buchanan J uses the word "wellbeing" in paragraph 29 when summarising the findings of the Tribunal in its first decision. Neither that finding, nor Buchanan J's summary of it, is likely to arise in any question of law relevant to this appeal. Even if this issue does arise, which I consider highly unlikely, I do not consider that a single judge hearing the matter will have any difficulty entertaining any argument or submission Mr P wants to make in relation to it. 24 The final paragraph that Mr P took me to was paragraph 35 of Buchanan J's judgment. My reading of paragraph 35 is that all that his Honour is saying is that, having at that stage decided that the Tribunal had erred in law by, to use his Honour's words, failing "to observe the strictures in s 54A(3) of the Act", the matter would need to be remitted to the Tribunal for further consideration. Both Mr P and the first respondent had asked Buchanan J to deal finally with the matter. His Honour found, however, that the matter could not be resolved until the Tribunal, as fact finder, had made a finding about whether there should be an attempt to make a specific assignment to a particular parent in relation to the period at the boarding school. 25 I am unable to see how any argument could arise on this appeal in relation to paragraph 35 of Buchanan J's judgment, or how Mr P could be precluded from raising any such argument in relation to it before a single judge. I do not consider anything said by Buchanan J in paragraph 35 to amount to a finding in relation to whether or not it was mandatory to apply section 54A in working out the percentage of care. 26 In the course of Mr P's submissions before me today, a more general argument that he seemed to advance was that in a number of respects the Tribunal, when it came to reconsider the matter upon remittal, used observations that were made by Buchanan J about the facts effectively as evidence or findings of fact. If that is the case, on one view it could (depending on the approach taken by the parties before the Tribunal) amount to an error of law, given that the Tribunal is obliged to decide the matter on the basis of the evidence and materials before it, not on the basis of obiter observations about the facts by the Court remitting the matter. 27 In any event, this is not an argument that Mr P is precluded in any way from putting forward, on the hearing of this appeal, subject to him being able to articulate any relevant question of law that is raised by it. That is so even if Mr P wants to submit that some of the obiter observations about the facts were wrong. 28 The final matter that Mr P took me to in the course of his oral submissions was paragraph 32 of the first respondent's written submissions. Mr P submitted that in this paragraph the first respondent has resiled from the position he had taken before Robertson J. 29 Paragraph 32 of the first respondent's written submissions does no more than refer to a part of the Tribunal's decision where the Tribunal cites parts of Buchanan J's judgment where his Honour makes some observations about the effect of the Family Court consent orders and the responsibilities of the parents whilst the child was at boarding school. I am unable to see how it can be argued that anything said in this paragraph of the first respondent's written submissions is contrary to anything said on the first respondent's behalf during the directions hearing before Robertson J. The first respondent is certainly not questioning anything decided by Buchanan J in this paragraph of the submissions. I am also unable to see how anything said in this paragraph is relevant to Mr P's argument that he wishes to "quarrel with" aspects of Buchanan J's judgment. If the argument that Mr P wants to raise is that the Tribunal did not decide the matter on the basis of the evidence before it, but decided the matter on the basis of obiter observations made by Buchanan J, Mr P can put that argument, subject again to it relating to a relevant question of law. I am unable to see how paragraph 32 of the first respondent's written submissions seeks to convert any observation that was made by Buchanan J in his Honour's judgment into part of a ratio of the decision that Mr P would not be able to question on the hearing of this appeal. Nothing said in Mr P's written submissions in reply sheds any light on his complaint concerning paragraph 32 of the first respondent's submissions. 30 It follows that, in my opinion, there is no genuine prospect that the correctness of any relevant finding made by Buchanan J is likely to arise on the hearing of this appeal. There is nothing to stop Mr P from taking issue, in these proceedings, with any obiter observations made by Buchanan J, particularly where those observations were not relevant or material to his Honour's decision. 31 I appreciate that Mr P is not represented. He expressed, on a number of occasions in the course of his submissions before me today, that he did not feel that he was in a comfortable position and did not want to, but felt he had to, quarrel with aspects of Buchanan J's judgment. As I have already said, however, I am unable to see how any of the matters raised by Mr P in relation to Buchanan J's judgment are likely to properly arise on this appeal, or are likely to require this matter to be heard by the Full Court. 32 It follows, in my opinion, that there is no basis for this matter to be referred to the Full Court. Even if it was a matter for me, and it is clear from the terms of subsection 20(1A) of the FCA Act that it is a matter for the Chief Justice, in my opinion this is not a matter of sufficient importance to warrant a direction under subsection 20(1A) of the FCA Act. Accordingly, I dismiss the interlocutory application filed by Mr P and confirm the hearing date of 28 October 2013. 33 In his submissions before me today, Mr Gouliaditis submitted that if the interlocutory application is dismissed, the first respondent seeks an order for costs. 34 Mr P opposed the making of an order for costs. He submitted that when he read the first respondent's written submissions, consistently with what he put in his affidavit, he perceived that the first respondent had resiled from the agreed position that had been reached before Robertson J. In these circumstances he considered it necessary to file this application. 35 I note in this respect that the argument that was advanced by Mr P today differed somewhat to the argument or the position that was taken in his affidavit in support of the interlocutory application. In the affidavit, Mr P seemed to suggest that it was the first respondent who sought to question aspects of Buchanan J's judgment. In his oral submissions today, the argument that was advanced essentially was that it was Mr P who wanted to quarrel with parts of Buchanan J's judgment. 36 In any event, based on my reading of what was said before Robertson J, the amended notice of appeal, Mr P's written submissions and the first respondent's written submissions, I am unable to see that Mr P had a proper basis to make this application in the first place. In particular, I am unable to see how Mr P could have formed the view that in his written submissions the first respondent in any way resiled from the position that had been taken before Robertson J. 37 Mr P also submits that he is impecunious. Whilst there is no evidence before me in relation to Mr P's financial position, I accept, for the purposes of this application, that he may be impecunious. That fact alone, however, in all the circumstances is no reason for costs not to follow the event. Mr P says, and I accept, that at all times he acted in good faith and that he believed as a result of what was said on the last occasion before Robertson J that if he had any issues in relation to Buchanan J's judgment, he was required to make this application. He also points out, of course, that he is unrepresented. Whilst Mr P may be unrepresented, he is clearly an intelligent and articulate person, as demonstrated by the competency of his written and oral submissions. The fact that Mr P is unrepresented, at all times acted in good faith and may have misunderstood the situation, whilst no doubt relevant, does not persuade me that a costs order should not be made. 38 As has been observed on many occasions in this Court and others, ordinarily costs follow the event. I see no reason to depart from this course in the circumstances of this case. Accordingly, I order that Mr P pay the first respondent's costs in relation to the interlocutory application. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney.