VXQB v Child Support Registrar

VXQB v Child Support Registrar - [2021] FCA 48 - FCA 2021 case summary — Zoe

[8]

The circumstances in the present case 4 In the present case, a care percentage determination was made by the Registrar with effect from 18 November 2011. The determination was that the mother had 100% care of the child. For a number of years thereafter the applicant in the present proceedings, the father of the child, paid child support based on that determination. 5 It appears that, in 2018, the applicant became aware that the child of his relationship with the child's mother was living with her maternal grandparents and he notified the Registrar of that fact. I say appears because these matters were not the subject of direct evidence on the present application. However, the history is recounted in documents in evidence and both parties presented submissions based upon a version of the sequence of events that accords with that history. 6 The evidence that is before the Court indicates that after the notification, on 10 July 2018, the Registrar (by a delegate) determined that notwithstanding that the child was living with her grandparents there should be no change to the determination that the mother had 100% care of the child. I will refer to this decision not to change the care percentage determination as the original decision. The precise terms of, and reasons for, the original decision are not known on the present application because they are not in evidence. However, given the nature of the legislative structure it appears to have been a decision not to revoke the existing determination of the care percentage which was to the effect that the mother had 100% care of the child. 7 Under s 80A of the Child Support (Registration and Collection) Act 1988 (Cth) (CSRC Act) a parent liable to pay child support may lodge with the Registrar an objection to a care percentage decision (terminology that includes a decision such as the original decision). The power of the Registrar where an objection is lodged is to disallow the objection or to allow the objection in whole or in part: s 87(1)(b). 8 The applicant has placed before the Court a letter provided to the applicant by the National Manager, Multicultural and Tailored Services in the Department of Human Services (Letter). The Letter is dated 6 December 2019 and was prepared well after the relevant events and in response to complaints about the process raised by the applicant. It describes some of the relevant history. It refers to an objection being lodged to the original care percentage decision (which appears to be a reference to the original decision). It says that the objection decision maker made a decision to change the percentage of care of the mother to 8% with the applicant's percentage continuing to be assessed at zero. 9 It appears that the objection decision was made on 13 September 2018. Again, the terms of the actual decision are not in evidence. However, in order for the decision to specify a percentage the objection decision maker must have decided to revoke the existing care percentage and to exercise the power to determine a new care percentage. 10 In order to be an eligible carer for the purposes of the CSA Act a person must at least have shared care of the child: s 7B. Therefore, the decision by the objection decision maker (described elsewhere as the objections officer) terminated the obligation of the applicant to provide child support under the CSA Act. 11 It appears that the objections officer also expressed views as to when the termination would take effect. 12 The Registrar implemented the determination by the objections officer with effect from 18 July 2017 (that is to say, it was backdated by more than a year). 13 The materials before the Court on the present application indicate that there was then a considerable dispute as to whether the backdating was appropriate. In the Letter (sent, as I have indicated, well after the relevant events) it is said that the objections officer incorrectly stated that the consequence of allowing the objection was that the changed care percentage took effect from when the care change occurred (when the child starting living with the grandparents) rather than from when the change was notified by the applicant. 14 After the decision by the objections officer, the mother applied to the Administrative Appeals Tribunal to review the decision made by the objections officer. Provision for such an application by way of review was made by s 89 of the CSRC Act. It was described in that Act as an AAT first review. 15 The AAT first review by the mother was successful. The Tribunal set aside the decision by the objections officer. Again, the decision is not before the Court. It is described in the history that is before the Court as finding that there was no change in the care of the child and thus no terminating event. In effect, so it would appear, the Tribunal determined that the objection by the applicant should be dismissed because there was no reason to revoke the determination of the care percentage (which was that the mother had 100% care of the child). 16 The CSRC Act provides for an AAT second review 'of a care percentage decision': s 96A. An issue arose as to whether the right to such a second review could be pursued where the Tribunal had not made a new care percentage determination, but rather had decided that there should not be such a determination (because the power to revoke the determination that was already in place should not be exercised) (Jurisdiction Issue). 17 The Tribunal was asked to order a stay of the effect of the Tribunal decision (on the AAT first review). The stay order was made. The AAT second review proceedings were also adjourned pending the determination of the Jurisdiction Issue which was pending in this Court in other proceedings. In Child Support Registrar v MQMV [2019] FCA 1171 it was determined that the Tribunal had jurisdiction to conduct a second review in such cases. The Tribunal then proceeded to undertake the AAT second review. 18 The nature of the AAT second review required the Tribunal to undertake a de novo review as to the exercise of the power conferred on the Tribunal in the AAT first review. The power of the Tribunal on the AAT first review was to decide de novo how to exercise the power that resided in the objections officer. The power of the objections officer was a power to allow or disallow the objection. 19 On the AAT second review, the Senior Member presiding determined that the reviewable decision (being the AAT first review) was affirmed. The effect of that decision was that the objection by the applicant was disallowed.

[9]

The proceedings in this Court 20 The applicant now brings an application in this Court seeking to invoke the statutory right conferred by s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) which provides that a party to proceedings before the Tribunal may appeal to this Court on a question of law. Any such appeal must be instituted not later than the twenty-eighth day after the day on which the document setting out the terms of the decision was given to the person seeking to appeal or within such further time as the Court allows: s 44(2A). 21 No appeal was brought within time and the applicant seeks an extension of time in which to appeal. The Registrar, named as the first respondent, opposes the extension of time and also objects to the competency of the appeal on the basis that the draft notice of appeal does not state a precise question of law to be raised on the appeal. The mother has filed a submitting appearance. 22 The applicant, acting on his own behalf, has filed a draft notice of appeal in which he has expressed the questions of law that he seeks to raise in the following terms: 1. The CSA and AAT failed to comply with Legislation, namely CSRC Act section 95b and section 97c. CSA varied the Objection Decision by changing the effective date, clearly a variation. They made this change soon after a stay order was granted on 10/5/2019. They failed to notify AAT of the change in writing as per the requirement in th Findings of fact that the Court is asked to make 1. The Court is asked to confirm that the AAT2 process was conducted illegally with respect to the abovementioned legislation 2. The Tribunal did not follow the precedence of Polec & Staker & Anor(SSAT appeal 2011) (incomplete sentences and formatting reproduced as in original) 23 Where there is a right to appeal on a question of law, the existence of a question of law is both the qualifying condition for the application and its sole subject matter: Brown v Repatriation Commission (1985) 7 FCR 302 at 304; and Federal Commissioner of Taxation v Brixius (1986) 16 FCR 359 at 363-364. Where an appeal on the basis of an error of law is provided for in respect of an administrative determination then the court is required to exercise original, not appellate, jurisdiction and to do so in proceedings which are in the nature of judicial review: Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; (2001) 207 CLR 72 at [15]. By allowing for an appeal only on a question of law the determination of the merits of the case remain solely with the Tribunal: Attorney-General (NSW) v Quin (1990) 170 CLR 1. 24 A claim that there has been an error of a kind that would not be characterised as jurisdictional error may raise a question of law: Allan v Transurban City Link Ltd [2001] HCA 58; (2001) 208 CLR 167 at [11]. Further, the right to appeal on a question of law extends to questions of mixed fact and law, but does not include mere questions of fact. The fact-finding function remains entrusted to the Tribunal and any question which invites the Court to positively determine a question of fact that was adjudicated by the Tribunal is not an appeal on a question of law: Haritos v Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315 at [192]. 25 Therefore, it might be said that questions of law are those matters which form any part of the law which must be observed by the Tribunal in making its decision and, if not properly understood and implemented by the Tribunal, are the kind of matters that could misdirect the Tribunal in the lawful performance of its fact-finding task. They may concern the fairness of the Tribunal procedure and the manner in which its decision-making task is to be undertaken including by following both the requirements of the law and the content of legal principle to be given effect in making the decision. For example, in undertaking its fact-finding task the Tribunal is required by law to undertake its task in a logical way and to ensure that there is some material before the Tribunal to enable it to make the factual findings that support its decision. However, provided such boundaries are not breached, it is for the Tribunal and not the Court to determine the facts. 26 All of the above is subject to the express terms of s 44(7) which confer a limited discretion upon the Court to undertake the fact-finding task when hearing an appeal on a question of law. If the particular conditions there expressed are satisfied then the Court may make factual findings that are not inconsistent with those made by the Tribunal (save to the extent those findings are found to be the result of an error of law). Matters such as efficiency and the expense and delay that would be incurred if the matter were remitted to the Tribunal are to be considered by the Court in deciding whether to exercise that limited fact-finding power.

[11]

Principles to be applied on application for an extension of time in which to appeal 28 Where the Court is entrusted with a discretion to grant an extension of time within which to bring an appeal certain principles are generally recognised as providing guidance as to how such a discretion should be exercised: Norbis v Norbis (1986) 161 CLR 513 at 519 (Mason and Deane JJ), 537 (Brennan J). 29 Subject to any specific provision in the statute conferring the right to appeal, provisions that confer power on the Court to extend the time for an appeal require an evaluation to be made as to where the interests of justice lie in the circumstances of the particular case. Recognising that the nature of that power is not to be confined by judicial elaboration or refinement in particular cases, reference is often made to the relevance of the principles set out in Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 at 348-349 which were summarised by Perry J in Jamal v Secretary, Department of Social Services [2017] FCA 916 at [11] in the following terms: (1) An extension of time will not be granted unless the Court is positively satisfied that it is proper to do so. (2) The applicant must show an acceptable explanation of the delay and that it is fair and equitable in the circumstances to extend time. (3) Any prejudice to the respondent is a material factor militating against the grant of an extension, although the absence of prejudice does not, without more, suffice to justify the grant of an extension of time. (4) The merits of the substantive appeal, if leave were granted, are properly to be taken into account. 30 In evaluating whether there is sufficient merit in a point for the purpose of considering whether to allow an application for an extension of time, the merits are to be assessed in a fairly rough and ready way and in most cases will be based upon the statement of the applicant's case: Jackamarra v Krakouer (1998) 195 CLR 516 at [9]. It is not an occasion where the parties are expected to present elaborate arguments. Therefore, both parties should approach the application accordingly. It follows that an applicant who has quite properly confined its submissions on the extension of time application to stating the nature of the case that it wishes to present should not be deprived of an opportunity to present more detailed argument by a refusal of an extension for the reason that the case lacks merit based on a more elaborate assessment. 31 For that reason it has been said that the task of the Court on such applications is to determine where the best interests of justice lie and in doing so proposed grounds should be evaluated at a reasonably impressionistic level: MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62] (upheld on appeal MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110); and as applied in Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 at [21]; and Guo v Minister for Immigration and Border Protection [2018] FCAFC 34 at [27]. 32 It is unlikely to be in the interests of justice to grant an extension of time where an appeal would have little or no prospects of success, given the additional resources that would impose upon the parties and Court, and the impact on other Court users: see at first instance in MZABP at [62] (approved on appeal at [38]).

[13]

Contention (1): s 110V 35 Section 110V provides that where the Tribunal makes a decision 'the Registrar must immediately take such action as is necessary to give effect to the decision'. The effect of the stay order made by the Tribunal was that the decision by the Tribunal on the AAT first review was not to be carried into effect pending the making of a determination on the AAT second review (the hearing of which was adjourned pending the decision to be made by this Court in MQMV). The consequence was the decision by the objections officer to allow the objection continued to have effect. 36 The applicant claimed that instead of giving effect to the decision by the objections officer the Registrar administered the legislation in a manner that had the effect that the applicant was required to make the applicant pay child support. It appears that the Registrar may have taken the view that the Registrar had an express statutory power to vary or substitute the decision made by the objections officer and that it exercised that power. There is no evidence as to precisely what occurred. 37 For the Registrar, it was indicated that the factual premise for the contention was not accepted, but the submission advanced was that, even if it was taken to be correct, it was not a matter that would affect the jurisdiction of the Tribunal to make the decision that it ultimately made after conducting the AAT second review (being the decision the subject of the application of an extension of time in which to appeal). For the Registrar, it was submitted that the Tribunal's authority in undertaking the AAT second review did not depend upon the observance by the Registrar of the requirements in s 110V of the CSRC Act. The mother was entitled to pursue her right to the review irrespective of the conduct of the Registrar. I accept those submissions. Therefore, the complaint about what occurred pending the making of that decision provides no basis for an appeal on a question of law and the contention by the applicant is without merit. 38 Even if there was merit in the point, a complaint that was to the effect that the Tribunal lacked authority to make a decision because of events that had occurred before it made its decision (being events that were not part of the Tribunal's decision-making process in reaching the decision he subject of the review) did not raise a question of law in respect of the decision. For that reason, given the nature of the complaint, some other application would be required to raise such a point if it had merit: as to the significance of the distinction see Yao v Secretary, Department of Education, Employment and Workplace Relations [2010] FCA 18. For that reason, the notice of objection to competency should be upheld as to the first contention.

[14]

Contention (2): s 97C 39 Section 97C deals with an instance where, after an application is made for an AAT second review, the Registrar varies or substitutes a decision. It is a provision that recognises the existence of such a power and specifies what should occur if it is exercised. It states that in such a case, the Tribunal on the AAT first review is taken to have varied or substituted the decision in the way the Registrar has done and the application for the AAT second review is taken to relate to the decision as varied or substituted. There is also a requirement that the Registrar must give notice of the variation or substitution to the Registrar of the Tribunal: s 97C(2). 40 On the assumption that there was such a variation or substitution (which is the position contended for by the applicant) and on the further assumption that the Registrar of the Tribunal was not given notice (which is also contended for by the applicant), those events would not mean that the Tribunal's jurisdiction to undertake the AAT second review was affected. The jurisdiction of the Tribunal is to consider the matter afresh and to exercise the power of the Tribunal on the AAT first review. The fact that the Registrar has made a variation or substitution would not alter the nature of that task. 41 The significance of the requirements expressed in s 97C is that they both allow the applicant to decide whether to proceed with the AAT second review given the change in the decision and also ensure that the Registrar cannot claim, after an AAT second review, that the Tribunal's decision does not relate to the variation or substitution thereby requiring the applicant to commence a further review. Irrespective of any such change in decision, the Tribunal on the AAT second review must make its own decision irrespective of the decision on the AAT first review and any change in decision made by the Registrar in the meantime. The Tribunal does not decide whether the reasoning on the AAT first review or any change made by the Registrar is correct. It makes its own decision by reference to the relevant materials before the Tribunal on the AAT second review. 42 Therefore, the contention is without merit. 43 In addition, the same reasoning applies in respect of the notice of objection to competency as was applied to contention (1). Therefore, the objection should also be upheld as to contention (2).

[16]

Contention (4): Family Court orders 47 The applicant's final contention was raised for the first time orally. It was to the effect that the Tribunal relied upon the terms of the Family Court order as to parental responsibility for the child in circumstances where the applicant was not provided with advance notice that the Family Court order would be used. He said that had he known he would have pointed out that the order had not been complied with by the mother. 48 The submission proceeded on the false premise that the Tribunal relied upon the terms of the order as part of its basis for reaching its conclusion that the mother provided 100% of the care to the child during the relevant care period. 49 The reference to the Family Court order occurred in a section of the Tribunal's reasons headed: 'A note about the evidence'. The section began by identifying the difficulty faced by the applicant as a parent who did not have care of the child during the relevant care period to present evidence to substantiate that parent's contentions as to what was occurring in relation to care for the child. The reasons then stated (para 54) that if a parent has sole parental responsibility they are more readily able to attest to the emotional support they provide the child as well as demonstrate decisions they have made concerning the welfare of the child. The Tribunal then noted (para 55) that there was no logically probative evidence to support the applicant's contention that the mother did not use the child support he paid for the maintenance and support of the child. 50 In that context, the Tribunal then said (para 57): The Family Court order confirms that the Mother had sole parental responsibility for the child during the care period. The evidence submitted by the Mother suggests that, on the balance of probabilities, she paid for all of the financial costs of the child. 51 In those circumstances, the order was referred to only to confirm that the mother had sole parental responsibility for the child. This was a matter not in dispute, as was confirmed by the applicant. The provisions of the order were not relied upon as to any other aspect. In particular, no aspect of the order was relied upon to reach conclusions as to whether the mother provided 100% of the care. Instead, reliance was placed upon the evidence submitted by the mother (being financial evidence addressed earlier by the Tribunal) to the effect that the mother paid for the costs and upon evidence of the grandparents and the conclusion of the Tribunal that there was no evidence before the Tribunal to doubt the credibility of either the mother or the grandparents (para 57). 52 The complaint raised by the applicant in the course of argument on the present application was that the mother was in breach of other parts of the order and had he known that the Tribunal was relying upon the order he would have referred to those other matters. 53 However, as to the order, the Tribunal was doing no more than reciting what was common ground, a step that did not involve the Tribunal considering the terms of the order (or compliance with those terms) in any way. There is nothing before the Court to indicate that it did so. In other words, there is nothing to support the assertion that the order was received and taken into account by the Tribunal. Even if it was received and acted upon for the very limited purpose of identifying a fact that was common ground, that conduct by the Tribunal could not be said to be an error of law. 54 Finally, even if (contrary to the above reasoning) it might be said that the reference to the family court order gave rise to procedural unfairness it was an 'unfairness' that, on the contentions advanced by the applicant, was of no consequence. For that further reason it would not provide an arguable basis for an appeal confined to an error of law, which I take to be an operative error of law. As has been noted, the review provided for by s 44 of the Administrative Appeals Tribunal Act is confined to review on the basis of an error of law. The relief that may be granted if an error of law is demonstrated is determined by the terms of the statute that confer the right of appeal, an appeal always being a creature of statute. Errors of law which are 'harmless' or 'trivial' do not normally warrant the setting aside of an administrative decision in the exercise of a statutory power of the kind conferred in respect of an appeal under s 44(1): Tankey v Adams [2000] FCA 1089; (2000) 104 FCR 152 at [119] (Ryan, O'Connor and Weinberg JJ). An immaterial error of law will not vitiate a Tribunal's decision where review is sought under s 44(1): 3D Scaffolding Pty Limited v Commissioner of Taxation [2009] FCAFC 75 at [35] (Emmett, Kenny and McKerracher JJ) applying BTR plc v Westinghouse Brake & Signal Co (Aust) Ltd (1992) 34 FCR 246 at 253-254 (Lockhart and Hill JJ). 55 By reason that the application seeks only to invoke the statutory right to appeal on a question of law and does not contend separately that there was jurisdictional error it is not necessary to consider the content of the requirement as to materiality that applies in such cases. 56 As to the objection to competency, contention (4) is not reflected in the draft notice of appeal. A complaint as to procedural fairness would not be incompetent. If the claim had merit then, in my view, it would have been necessary to explain the availability of the procedure to amend the draft notice of appeal for the purposes of the application to extend time. However, no purpose would be served in following that course because, for reasons I have given, there is no merit in contention (4). Therefore, it is not a matter that provides an answer to the objection to competency.

[17]

The circumstances and extent of delay 57 It is common ground that the appeal was commenced 134 days out of time. 58 On the evidence, the position in relation to the delay is as follows: (1) the decision of the Tribunal was communicated to the applicant by email on 2 April 2020; (2) at the time that the decision was communicated, the applicant was told that he might be able to appeal to the Federal Court and there was a time limit in which to appeal that commenced from the date of the email communicating the decision, but the length of time was not specified; (3) the applicant was not told of the time limit until mid-May; (4) there is no suggestion that the applicant made any inquiry as to the time limit before then; (5) when the applicant inquired at the Registry of this Court, he was told that the matter would be heard by the Federal Circuit Court; (6) the applicant applied in the Federal Circuit Court on 19 May 2020; (7) on 24 June 2020, the solicitors for the Registrar informed the applicant that jurisdiction to determine an appeal from the Tribunal's decision lies with this Court and he was pointed to the relevant statutory provisions and the fact that he could seek to have his application transferred to this Court; (8) on 13 July 2020, the application in the Federal Circuit Court was dismissed for want of jurisdiction; (9) on 19 August 2020, the applicant filed an application in this Court and was advised that he needed to seek as extension of time; (10) on 11 September 2020, the applicant sought an extension of time; and (11) the applicant does not have legal representation. 59 In the above circumstances, I consider there is some explanation for the delay. However, there is no explanation as to why the matters raised as part of contention (4) were raised for the first time at the hearing of the application for an extension of time. This is significant given the nature of the contention which is to the effect that the applicant would have taken some other action at the hearing being a claim of a kind that would be expected to have been raised from the outset even by someone acting on their own behalf, if indeed it was a matter considered by the applicant to be significant. 60 It is submitted that there is prejudice to the mother and to the Registrar by the delay. Any prejudice to the Registrar has not been shown to be significant. As to the mother, there is likely to be prejudice if a matter which would otherwise have been brought to an end upon expiry of the statutory period for an appeal is now able to be pursued many months later. It is possible that decisions have been made by the mother on that basis. There is no evidence as to such matters and therefore I do not bring them to account. 61 In all the circumstances, I would have been inclined to extend time as to contentions (1) to (3) if they had merit and were competent. I would not have extended time as to contention (4). There must be weight given to the need for finality. There is really no explanation for the delay in raising that contention.

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Judgment (18 paragraphs)

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Legislation Cited (3)

Cases Cited (25)

Cited By (5)