BARONE & BIANCO (SSAT APPEAL)
[2010] FMCAfam 836
•9 August 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BARONE & BIANCO (SSAT APPEAL) | [2010] FMCAfam 836 |
| CHILD SUPPORT – Appeal from decision of SSAT – whether there was error in law by SSAT in refusing to consider retrospective application to depart from administrative assessment. |
| Child Support (Assessment) Act 1989 Child Support (Registration and Collection) Act 1988 |
| Hides & Hatton (1997) FLC 92-759 |
| Applicant: | MR BARONE |
| Respondent: | MS BIANCO |
| File Number: | CSC837 of 2007 |
| Judgment of: | Slack FM |
| Hearing date: | 29 July 2010 |
| Date of Last Submission: | 29 July 2010 |
| Delivered at: | Brisbane |
| Delivered on: | 9 August 2010 |
REPRESENTATION
The Applicant appeared by telephone link on his own behalf.
The Respondent appeared by telephone link on her own behalf.
ORDERS
That the Appeal from the Decision of the Social Security Appeals Tribunal filed on 3 March 2010 be allowed.
That the matter be remitted to the Social Security Appeals Tribunal for the rehearing of the application by the applicant to depart from the child support assessment for the child support periods commencing
18 months prior to April 2009.
IT IS NOTED that publication of this judgment under the pseudonym Barone & Bianco (SSAT Appeal) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT brisbane |
CSC837 of 2007
| MR BARONE |
Applicant
And
| MS BIANCO |
Respondent
REASONS FOR JUDGMENT
This is an appeal from the decision of the Social Security Appeals Tribunal (hereafter “the SSAT”) dated 3 February 2010.
The applicant (representing himself) has not particularised the error in law he claims was made by the SSAT.
As I gathered from his submissions though, in essence, he claims that the SSAT failed or refused to determine his application for change of assessment for the 18 months prior to the filing of his application (April 2009) according to law.
The respondent (representing herself) seeks that the Appeal be dismissed.
The decision of the SSAT
The SSAT set aside the decision under review and substituted a new decision that:
1. For the period 1 January 2009 to 31 December 2010 Mr Barone’s adjusted taxable income be set at $61,000.
2. For the period 1 January 2009 to 30 June 2009 Ms Bianco’s adjusted taxable income be set at $86,000.
3. For the period 1 July 2009 to 31 December 2010
Ms Bianco’s adjusted taxable income be set at $78,000.
4. For the period 1 January 2009 to 31 December 2010 the annual rate of child support payable by Mr Barone be increased by $771.
The Applicant does not seem to challenge those determinations in this Appeal. He challenges the determination not to change the child support assessment for previous child support periods for the year ended 30 June 2008 and for the period up to 1 January 2009.
In relation to the complaint made by the applicant in these proceedings, the relevant considerations in the reasons of the SSAT are as follows:
49. The Tribunal must then consider the commencement date and extent of its decision. The Tribunal does not agree with
Mr Barone’s submission that the decision should be backdated for the maximum period of 18 months. The general view as outlined in the legal authorities is that a decision made to vary an assessment will apply no earlier than the date of the application. Retrospective changes to child support assessments can have significant consequences to the parties and are only addressed if there is good reason for doing so.
50. Mr Barone maintained that the reason he did not apply earlier than 15 April 2009, despite acknowledging that he was well aware that Ms Bianco’s income had increased, was because he was told no less than 15 times by CSA officer that there “was nothing” he could do. The Tribunal can accept that he may have assumed that he could only take action once Ms Bianco submitted her tax return, which she notes, she did within the time allowed to her. However the Tribunal finds this is more likely to be a misunderstanding on his part than as a result of a concerted pattern of misinformation by CSA over an 18 month period. Therefore, the Tribunal finds it would not be just and equitable to backdate any change for 18 months.
Relevant child support review applications
In his Application form: changing your child support assessment in special circumstances (P291 of the s.110K documents), the applicant made it clear that he was seeking a change of assessment for the
18 months prior to the filing of his application on 9 April 2009.
On 20 June 2009 a senior case officer in the Child Support Agency made a decision varying the particulars of the child support assessment for the period 16 October 2007 to 30 June 2008 and 1 July 2008 to
31 December 2008.
The applicant objected to that decision and on 1 September 2009 the objection on the face of the decision was allowed.
The objection officer decided relevantly:
SCO C determined that it was appropriate to make changes to the child support assessment for a period of 18 months prior to the application made by Mr Barone. Therefore, as a result of the SCO’s determination, the assessment was varied from 16 October 2007, in setting both of the parents’ incomes.
Retrospective changes to child support assessment are usually only made in exceptional circumstances. It is normally the case that decisions made to vary the assessment apply no earlier than the customer’s date of application. I am not satisfied that exceptional circumstances are warranted for such a determination to be made in this case. Whilst I acknowledge that Ms Bianco’s taxable income increased from around $42,000 in 2006/2007 to approximately $72,000 in 2007/2008 that in itself does not constitute a requirement to retrospectively change the assessment through this process.
The applicant appealed in part from that determination and the SSAT seemed to affirm the decision of the objections officer in relation to that particular issue.
Relevant background facts
The applicant and respondent are the parents of two children – D born 2001 and I born 2003.
It would appear, as best I can determine, that the respondent’s income from employment for the relevant child support years was over $70,000 per annum and the actual child support assessments issued on the basis she had a child support income amount of $42,815.
Decision – Discussion and conclusions
In Hides & Hatton (1997) FLCA92-759, the Full Court of the Family Court said (@ 84 354) that under Child Support (Assessment) Act 1989 (hereafter “the Assessment Act”):
There would seem to be no time limitation in the making of an assessment (or at least an amended assessment) by the agency for a past year; nor an application for a review by Child Support Review Officer of an assessment (be it original or amended) for a past year; nor an application to, and determination by, a Court for an order departing from an administrative assessment for a past year. Furthermore, s.141(1)(h) would seem expressly to empower the making of a departure order which has retrospective effect and this power has been recognised by the Full Court in Bassingthwaite & Leane (1993) FLC92-410.
Relevantly though s.98S (3B) of the Assessment Act now provides that the Registrar has no power to make a determination under Part 6A for a day that is more than 18 months earlier than the day on which the application for the determination is made (unless leave has been granted by a Court pursuant to s.111 of the Assessment Act).
It seems that when the applicant made his application, he was entitled, without leave of a Court under the Assessment Act, to seek a departure from the child support assessment for the 18 months prior to the filing of his application and that the Registrar had the power to deal with his application pursuant to Part 6A of the Assessment Act.
The applicant was clearly seeking a departure for the relevant child support years ended 30 June 2007 and 30 June 2008 (albeit that there was no power in the Registrar or the SSAT without leave of the Court to determine the application 18 months prior to the filing of his application in April 2009).
As was made clear in Hides & Hatton (supra):
The jurisdiction to make an order under s.117 departing from an administrative assessment of child support is a discretionary jurisdiction. But as was made clear by the Full Court in Gyselman & Gyselman (1992) FLC92-279, it is a highly structured discretion with the Court being required to adhere to the following strict three step process…..
It is clear, having regard to Hides & Hatton (supra), that in the exercise of the discretion according to the statutory imperatives, that the SSAT under s.117(4) and s.117(5) can have regard to the impact on the payer or the payee of the making of a departure order setting liability for a past period and thus immediately creating the burden of arrears for the payer or a credit for the payee [the Court being able under s.117(9)] to have regard to matters beyond those specified in s.117(4) and s.117(5). These may also be matters which could be addressed under s.117(2)(c) when considering whether a ground for departure exists in a particular case.
As far as I can determine though, there is nothing in the Assessment Act that imposes on the applicant any requirement in seeking a retrospective change to a child support assessment to establish there is good reason for doing so.
The SSAT, in my consideration, should have determined his departure application for the relevant child support period (that was in the time limit of the Registrar to do so) in accordance with the statutory imperatives in Part 6A of the Assessment Act.
In this matter, upon my reading of the reasons, not only did they not determine the application in that way, but seemed to come to the conclusion that there was some additional onus upon the applicant to establish good reasons for them to do so.
I am not satisfied in the circumstances that there was a proper application of the law with respect to the applicant’s change of assessment application for the relevant child support years.
I am not satisfied from the reasons that the SSAT exercised their discretion in accordance with the statutory imperative that was required of them.
I consider that the Appeal should be upheld and that the matter should be remitted to the SSAT for a determination of the relevant departure application for the child support periods commencing 18 months prior to April 2009 (when the application was filed) or more particularly for the period from ) October 2007 until December 2008.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Slack FM
Associate:
Date: 9 August 2010
0
2