Reasonable prospects of success
39 I have set out the applicant's contentions about the alleged acts of discrimination, as they are reflected in his complaint to the Commission. As I have noted, his affidavit material reflects reasonably consistently, these allegations. During the hearing, and at my invitation, the applicant took the Court through the annexures to his affidavit sworn 26 March 2018, which contain decisions made by the Child Support Agency forming, as I understand it, the substantive parts of his complaint of unlawful discrimination. There are five sets of key documents, and I consider them in chronological order.
40 The first is a decision made on 30 July 2014. This was Dr Stepien's application for review of the child support payments he had been ordered to make. The decision was made under Pt 6A of the Child Support (Assessment) Act 1989 (Cth) and in particular s 98C(1)(b). Section 98C provides:
(1) Subject to this Part, if:
(a) an application is made to the Registrar under section 98B; and
(b) the Registrar is satisfied:
(i) that one, or more than one, of the grounds for departure referred to in subsection (2) exists; and
(ii) that it would be:
(A) just and equitable as regards the child, the liable parent, and the carer entitled to child support; and
(B) otherwise proper;
to make a particular determination under this Part;
the Registrar may make the determination.
(2) For the purposes of subparagraph (1)(b)(i):
(a) the grounds for departure from the provisions of this Act relating to administrative assessment of child support in relation to the child are the same as the grounds for departure set out in subsection 117(2); and
(b) subparagraph 117(2)(b)(ib) has effect subject to subsections 117(3A) to (3C).
(3) Subsections 117(4) to (9) (inclusive) apply to the Registrar in the exercise of his or her powers under this Division as if:
(a) any reference in those subsections to the court were a reference to the Registrar; and
(b) any reference to an order were a reference to a determination.
41 This decision was also a decision on a cross-application made by Ms Stepien, essentially contending that Dr Stepien should pay more in child support. As the scheme discloses, the task for the decision-maker is to determine whether the child support assessment under review is unfair and whether one or more of the "grounds" (as set out in s 117 of the CSA Act) for departure from the assessment under review have been made out.
42 Dr Stepien had, in accordance with the legislation and with policy set out in the Australian Government's "Child Support Guide", relied on three reasons identified in the scheme.
43 The decision made by the delegate set out that Dr Stepien had been assessed as required to pay annual rates of child support ranging between $4,392 and $19,754, for periods between 24 January 2014 and 23 April 2015. The differences in the setting of the annual rates appear to be related to the increased time that the children spent in Dr Stepien's care from the start of that period to the end in April 2015. It appears from the decision that Ms Stepien, in her cross-application, sought to have Dr Stepien's assessment of his capacity to pay child support based on an annual taxable income of at least $130,000, whereas at April 2015 his annual taxable income had been assessed at $60,000.
44 The delegate's decision sets out the reasons advanced by Dr Stepien, which were:
(a) that the child support assessment was unfair because the paying parent (Dr Stepien) had paid or transferred money, goods or property to the child, the receiving parent or a third party for the benefit of the child; and
(b) the child support assessment was unfair because of a parent's income, property and financial resources or earning capacity.
45 The delegate's decision then sets out, in considerable detail the arguments made by Dr Stepien about the levels of payments he had made, the current orders in effect from the Federal Circuit Court, and Ms Stepien's responses.
46 The delegate notes that the amounts that Dr Stepien had been ordered (by orders that appear to have been by consent) to pay in relation to spousal maintenance, responsibility for car loans, one-off financial payments and educational costs, were all payments that were to be in addition to any child support assessment. The delegate correctly, it appears, found that those payments cannot in and of themselves make the child support assessment unfair. At the hearing of the extension of time application, Dr Stepien criticised this approach, but it is clearly one required by the legislative scheme and by the orders of the Federal Circuit Court in relation to maintenance and support for the children. The delegate then sets out the evidence and arguments made by Dr Stepien about Ms Stepien's income, property, financial resources and earning capacity. The delegate also sets out Ms Stepien's responses. The approach taken by the delegate was to accept Ms Stepien's claims about her receipt of social security payments, and her ongoing notification of Centrelink of any income she earns and to accept Centrelink's records as an accurate record of her income. Dr Stepien again was critical of this approach, but objectively it is difficult to see, in the absence of evidence that the delegate found acceptable to the contrary, why this approach demonstrates even at an inferential level, that the delegate was making determinations adverse to Dr Stepien because he was a man. Dr Stepien was particularly critical of the following two passages in the delegate's reasons:
I understand the children are currently in child care although neither parent provided any documentation as to which days the children attend. Nevertheless, I accept the care arrangements would make it difficult for Mrs Stepien to secure and maintain any meaningful employment.
I accept Mrs Stepien's care arrangements have justified the decisions she has made about her work. Accordingly, the second criterion is not satisfied and I cannot find her earning capacity makes the child support assessment unfair.
47 The criticism made of these paragraphs by Dr Stepien is that the delegate appears to have been prepared to accept it was reasonable for Ms Stepien not to be working more because of her childcare responsibilities, whereas Dr Stepien was expected to continue to work and discharge his childcare responsibilities. As I understand these passages, read in the context of the rest of the decision, the delegate rejects both Dr Stepien and Ms Stepien's claims that the other parent's earning capacity makes the child support assessment unfair for the same reason: namely that, applying the criteria required to be considered, although each parent has changed their working pattern, neither parent has demonstrated that the other parent's changes were not justified. I accept that Dr Stepien may not agree with this analysis, but it is difficult on the face of the delegate's decision to construe the delegate's reasons as ones which are motivated by the fact that Dr Stepien is a male and Ms Stepien is a female, rather than any objective characterisation of their circumstances in light of the criteria applied.
48 The rest of the decision goes on to consider Ms Stepien's cross-application and in that part of the decision there is detailed consideration of Dr Stepien's financial circumstances. The delegate concludes as follows:
In view of the above, I am satisfied the estimates of income provided by Mr Stepien do not reflect the income and financial resources available to him. The difficulty is to determine the income and financial resources that are presently available to him and that should be considered in determining his ATI for child support purposes.
The parents have ongoing conciliation hearings and are endeavouring to reach agreement concerning a range of matters including the ongoing care arrangements. While I am mindful of the primary duty the parents have to financially support their children, I am reluctant to increase Mr Stepien's child support liability at this time.
In conclusion, I am satisfied Mr Stepien has income and financial resources available to him that are not reflected in his current estimate of income. However, I am not convinced the discrepancy causes the current assessment to be unfair.
49 In other words, in addition to the findings made about Ms Stepien's capacity to be employed, the delegate had also been persuaded that Dr Stepien had not completely disclosed all his sources of income and financial resources. Again Dr Stepien may disagree with the delegate's views. Nevertheless in my opinion it is clear that these factors had some bearing on the outcome of the delegate's decision. None of those factors constitute prohibited reasons under the Sex Discrimination Act.
50 The next act of discrimination relied on by the applicant related to a decision made on 16 January 2015. That was also a review decision of an objection lodged by Dr Stepien about his child support payment assessment. That objection was allowed in part. The reasons for the decision are detailed and set out all of the material provided by Dr Stepien, noting that although Ms Stepien participated in a conversation about the objection, she did not provide any response or any evidence and so the delegate based the decision entirely on the evidence provided by Dr Stepien. In other words, the decision was made on the basis of the material that could be most favourable to the arguments Dr Stepien was making. In the decision the delegate works through the number of nights that the children have spent with each parent in the relevant period and reaches the conclusion that the largest proportion of nights were nights spent in the shared care of both parents, rather than with one parent or the other. There is nothing in this decision which suggests, in my opinion, that the approach taken by the decision-maker was affected in any way by the fact that Dr Stepien was a man and Ms Stepien was a woman. I do not detect in this decision any "preference" for the mother's position over the father's position. Rather, the decision sets out an objective basis for the conclusion reached on the material before the decision-maker.
51 The next act of discrimination relates to a decision communicated to Dr Stepien on 22 December 2015 again concerning an application by Dr Stepien to change his child support assessment. The conclusion of the decision-maker in that case was that Dr Stepien had not established the current child support assessment was unfair and again the decision-maker set out detailed reasons for that conclusion, including detailed references to the material provided by Dr Stepien. Again the decision-making relied on Centrelink records to establish the level of Ms Stepien's income, and again Dr Stepien criticised this in the extension of time hearing before me. As I have already explained, I see no error or unlawful approach in the decision-maker looking at records kept by another federal agency for the purpose of ascertaining a parent's income. It is true, as Dr Stepien pointed out, that he had provided some evidence of the level of expenditure of Ms Stepien which seemed inconsistent with her income - such as taking out a car loan for a car valued at $28,000. However, the delegate concluded that he "cannot find that Ms Stepien is currently earning income or has financial resources or assets that result in an unfair assessment", even though he accepted it was "questionable" that Ms Stepien should take out a loan of this kind. Dr Stepien criticised this finding as again one which did not accept the position he had put in terms of what the material disclosed. But these were matters for the decision-maker and I see nothing on the face of the reasons which suggests that the conclusions reached by the decision-maker were reached because of Dr Stepien's gender, rather than because the decision-maker was simply not persuaded that the material was probative enough for him to make the finding that Dr Stepien invited him to make.
52 Dr Stepien also points to a decision made on 17 March 2016, which relates to an application by Dr Stepien for an extension of time in which to lodge an objection to the decision I had just discussed. The extension of time was refused and detailed reasons were given for that refusal. Again, I see nothing in these reasons which suggests in any way that the decision-maker was motivated to the conclusion reached because of Dr Stepien's gender, rather than the delegate's assessment of the weight and persuasiveness to be given to the material before him or her. I note in this decision the delegate also refers to an appeal by Dr Stepien to the Social Security Appeals Tribunal (which has now merged with the Administrative Appeals Tribunal). This appears to have been an appeal from the decision I have discussed above: namely, the one made on 30 July 2014. Dr Stepien is recorded as having lodged an objection to this and an objection decision was made on 19 November 2014, from which Dr Stepien appealed to the Social Security Appeals Tribunal. On both the internal review and the Social Security Appeals Tribunal appeal, Dr Stepien was unsuccessful.
53 It is telling that none of these records disclose any argument by Dr Stepien at internal review level, or at Social Security Appeals Tribunal level, that these decisions were being made against him because of a prohibited reason, namely that he was a man. One might have imagined that if Dr Stepien felt that these decisions were motivated by a prohibited reason that is a matter he would have raised both on internal review and before the Social Security Appeals Tribunal. Dr Stepien is a capable and forthright person, and it is difficult to understand why he did not raise his concerns with the decision-makers themselves. However, none of these decisions record any such argument by Dr Stepien, including this application to extend time for a further objection by him to the child support assessment dated 22 December 2015. I note that at the end of this decision Dr Stepien was advised of his right of appeal from the refusal of an extension of time to the Administrative Appeals Tribunal. He does not appear to have taken advantage of that right of appeal.
54 In summary, there is no basis in any of this material to find that Dr Stepien's arguments of unlawful sex discrimination have any reasonable prospects of success.
55 It was apparent from the submissions made by Dr Stepien at the hearing that one of the key comparisons he seeks to draw is between what he perceives to have been the attitude of a Federal Circuit Court judge in September 2017 (Judge Stewart) towards his circumstances, and the attitudes taken by each of the delegates in the decisions to which I have referred. Dr Stepien's contention is that Judge Stewart accepted the evidence he put forward about Ms Stepien's financial circumstances and about her earning capacity, as well as about the unfairness to him of the previous regime of child support, set aside the previous regime and put in place a regime that was, in Dr Stepien's opinion, a fairer reflection of the respective earning capacities and financial resources of himself and Ms Stepien. Judge Stewart was also the judge who had made the final orders in relation to residence and access in February 2015. It is clear from Dr Stepien's submission that he perceives Judge Stewart as possessing the correct understanding of the respective circumstances of himself and Ms Stepien.
56 There is no doubt that the orders made by Judge Stewart in September 2017 required Ms Stepien to assume more financial responsibility for a number of matters concerning their children.
57 The September orders by Judge Stewart also transfer the proceeding between Dr Stepien and Ms Stepien to the Family Court of Australia. It is worthwhile setting out the notes to the Court's orders that relate to the decision to transfer the proceeding in full:
A. The reasons for the transfer of the proceedings to the Family Court of Australia are as follows:-
(i) the parties are in chronic conflict and require considerable judicial attention, which cannot be accommodated in this Court;
(ii) Judge Stewart has determined that the matter ought to be allocated to another Judicial Officer and the size of the file dictates that a transfer to another Federal Circuit Court Judge would be unduly onerous;
(iii) it appears that the major issue in dispute is the question of overseas travel for the children with each or either of the parties, however the history of the matter is such that those issues are likely to expand;
(iv) One 22 April 2016, the Mother attempted to reopen the substantive parenting arrangements and the Court dismissed that application (largely) on the basis that there was no change of circumstances sufficient to warrant revisiting those applications; and
(v) The parties are involved in proceedings in other State courts and the Husband has advised the Court this day that he is seeking to have the Wife and/or any proceedings issued by her declared as vexatious.
B. The cumulative effect of these issues is such that it renders the case inappropriate to remain in the Federal Circuit Court of Australia.
58 Dr Stepien informed the Court that although the matter had been transferred to the Family Court, there had been no substantive hearings as at the time of the extension of time application hearing.
59 While it is true that Judge Stewart's orders reflect some readjustment of the parties' financial responsibilities for the care and support of their children, again there is nothing in the orders or in the Court's notes to suggest that the reason the Court embarked on a readjustment was that it had a view that Dr Stepien had in the past been the subject of unlawful discrimination. Rather, it appears the judge took a different view, at least on the material before her Honour, about what the appropriate adjustment was as between the two parents. It is not difficult to understand how a person in Dr Stepien's position looks at different decisions made on material that he considers to be substantially the same, where different outcomes are reached, and finds those different outcomes challenging to come to terms with. The fact that the minds of administrative decision-makers and judges may reasonably differ when faced with even substantially similar material is a feature of both administrative decision-making in Australia, and judicial decision-making. The fact that there are such differences does not of itself suggest any impermissible consideration, or any unlawful consideration. It simply reflects the fact that the minds of different decision-makers can be differently persuaded by material. Judge Stewart also had the opportunity of hearing directly from both Dr Stepien and Ms Stepien, whereas the decision-makers at the Child Support Agency were making decisions on the papers.
60 Dr Stepien also identified as unlawful discrimination statements in some correspondence he had received from the Child Support Agency in February and March 2015. He contends that through a series of communications the amounts the Agency told him he needed to pay went up, then down and then it was acknowledged he was entitled to a refund. When he queried all these changes, he contends he was told during a telephone conversation with Agency officers that the correspondence was automatically generated and had reversed the proportion of time the children spent with each parent (72% with him, and 28% with his ex-wife) because it was so uncommon to have children living with their father rather than with a female parent. Dr Stepien alleges that payments were incorrectly deducted from him as a result of this computer error, and that it took more than one phone call to resolve this issue.
61 Finally, in terms of the matters to be identified as acts of discrimination for the purposes of his complaint, Dr Stepien pointed to a conversation which he alleged occurred in around May 2016 where Dr Stepien contends he was told by an officer of the Child Support Agency that Ms Stepien did not have to provide updated details to the Agency, although he did. This is a conversation to which Dr Stepien referred in his complaint to the Commission, in the extracts I have set out above.
62 Neither of the allegations in [60] and [61] above would be sufficient to give any contention of unlawful sex discrimination reasonable prospects of success. The reason for the treatment may be mistakes, or lack of attention to detail, or inadequate understanding of what information participants in the child support system were required to provide. Nothing in what Dr Stepien has produced gives rise to an inference that the reason for the communications having the content they did was because he was a man.
63 I explored with Dr Stepien at the hearing what kind of relief he considered would flow from a finding in his favour that such conversations occurred and that it was treatment which was in contravention of the Sex Discrimination Act because it treated him differently because he was a man in contrast to the treatment of Ms Stepien. Dr Stepien maintained that this was the kind of situation that he would expect to be remedied by the relief he sought in his originating application. It is appropriate to set out that relief:
The Applicant also claims other relief.
1. An order is made to have court appointed auditor and investigation be made to the departments two branches, child support agency and centrelink in respect to sex discrimination breaches with the department implementing recommendation of such a review.
2. Employees of the department that have breached Sex Discrimination Act 1984 be removed from their positions and be directly financially liable for their actions.
3. The department to made a formal apology, admitting to discrimination of male parents in a form of a official letter addressed to applicant and provided to the applicant, made available on both branches of the department website homepage and in three major Australian newspapers.
4. The department be financially liable for their discrimination and immeasurable grief it caused and damages be exemplary in amount as seen fit by this Court and be donated to a foundation of applicants choice.
5. The department repays what it has wrongfully removed from applicant with penalties.
6. If this Court feels there was more than just discrimination on behalf of the department it is referred for judicial review.
64 It is apparent on its face that much of the relief sought by the applicant is not the kind of relief the Court is able to grant, nor the kind of relief that it is likely to grant in an exercise of discretion. Even if Dr Stepien were to prove conversations with Child Support Agency staff to the effect of those he alleges, I consider it is unlikely to result in any relief being granted in his favour and it does not substantially add to the prospects of success in his claim.