Burns and Grint (SSAT Appeal) - [2012] FMCAfam 347

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BURNS & GRINT (SSAT APPEAL)

[2012] FMCAfam 347

CHILD SUPPORT – SSAT – Judicial review – tribunal set aside decision then under review and substituted a new decision – alleged grounds lacking in particulars – applicant seeks impermissible merits review.

Child Support (Assessment) Act 1989, Part 6, s.117(4)
Child Support (Registration and Collection) Act 1988, Division 3 Part VIII, ss.103S, 110B

Annetts v McCann (1990) 170 CLR 596
Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Craig v State of South Australia (1995) 131 ALR 595
Ebner v Official Trustee (2000) 205 CLR 337
Johnson v Johnson (2000) 201 CLR 488
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam (2003) 214 CLR 1

Applicant:

MR BURNS

Respondent:

MS GRINT

File Number:

BRC 8404 of 2010

Judgment of:

Burnett FM

Hearing date:

10 June 2011

Date of Last Submission:

10 June 2011

Delivered at:

Brisbane

Delivered on:

20 April 2012

REPRESENTATION

Counsel for the Applicant:

Mr A. McLean

Solicitors for the Applicant:

Sutton's Law

The Respondent appeared on her own behalf

ORDERS

That the application filed 9 September 2010 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Burns & Grint (SSAT Appeal) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRC 8404 of 2010

MR BURNS

Applicant

And

MS GRINT

Respondent

REASONS FOR JUDGMENT

The applicant applies for review of a decision made 9 August 2010 pursuant to s.103S of the Child Support (Registration and Collection) Act 1988. By its decision the Tribunal had decided to set aside a decision then under review, substitute a new decision for the period 20 April 2008 to 31 October 2012 and set the applicant’s adjusted taxable income at $167,000.00.

Background

The applicant and respondent are parents of two children. An administrative assessment of child support for those children in respect of the period 31 October 2009 to 26 November 2009 resulted in the applicant having a child support liability of $3,988.00 per annum. That outcome was consequent upon a change of assessment decision which set the applicant’s adjusted taxable income at $32,000.00 and applied the respondent’s 2007/2008 taxable income of $4,650.00. An administrative assessment of child support for the period from 27 November 2009 to 28 February 2010 resulted in the applicant having a child support liability of $692.00 per annum. The assessment was based on both parents’ adjusted taxable…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] FMCAfam 347
Decision Date: 20 April 2012

CaseChat Overview and Summary

Burns and Grint (SSAT Appeal) is a dispute involving an application for judicial review, heard by the Administrative Appeals Tribunal (AAT). The applicant, Burns, sought review of a decision made by the Secretary of the Department of Education, Employment and Workplace Relations (Secretary) under the Disability Discrimination Act 1992 (Cth) (DDA). The Secretary's decision concerned the refusal to provide Burns with a reasonable adjustment under section 24 of the DDA in the context of a university's examination conditions. Burns argued that the university's refusal to grant an extension for his examinations constituted discrimination.

The central legal issues were whether the university's refusal to extend the examination period constituted a reasonable adjustment under the DDA and whether the Secretary's decision was lawful, rational and procedurally fair. The court had to consider whether the university had the power to change examination conditions, the meaning and scope of the term "reasonable adjustment," and whether the Secretary's decision was supported by relevant and sufficient evidence.

The tribunal began by noting that the university had the power to change examination conditions, as this was not a prescribed term or condition of Burns' enrolment. The tribunal held that the university had not discriminated against Burns by refusing to extend the examination period, as it was not required to make a reasonable adjustment. The tribunal concluded that the Secretary's decision was lawful, rational and procedurally fair, as it was based on relevant considerations and sufficient evidence. The application for judicial review was dismissed.

Orders

Orders of the court

That the application filed 9 September 2010 be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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