Carlson & Acuff & Anor (SSAT Appeal) - [2010] FMCAfam 677

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CARLSON & ACUFF & ANOR (SSAT APPEAL)

[2010] FMCAfam 677

CHILD SUPPORT – Appeal regarding child support – SSAT.

Child Support (Assessment) Act 1989, s.117
Child Support (Registration and Collection) Act, ss.101, 103H, 103N(2)

Acuff & Carlson [2006] FMCAfam 14

DJM & LNM [1998] FamCA 97; (1998) FLC ¶92-816; (1998) 23 Fam LR 396
Parrish & Torrey (SSAT Appeal) [2009] FMCAfam 274; (2009) 41 Fam LR 236

Tyagi & Meares [2008] FMCAfam 886; (2008) 39 Fam LR 604
Wright & Wright & Anor (SSAT Appeal) [2009] FMCAfam 979; (2009) 42 Fam LR 281

Appellant:

MR CARLSON

First Respondent:

MS ACUFF

Second Respondent:

CHILD SUPPORT REGISTRAR

File Number:

HBC 1208 of 2008

Judgment of:

Riethmuller FM

Hearing date:

25 January 2010

Date of Last Submission:

25 January 2010

Delivered at:

Melbourne

Delivered on:

30 June 2010

REPRESENTATION

Counsel for the Appellant:

The Appellant appearing in person

Solicitors for the First Respondent:

Mr Blissenden

Solicitors for the Second Respondent:

Blake Dawson

ORDERS

The appeal be allowed.
That the matter be remitted to the Social Security Appeals Tribunal to be heard and determined according to law.
The Second Respondent to provide written submissions on the issue of the costs of the SSAT transcript within 14 days.
The Appellant to provide a response within 14 days.
Liberty be reserved to the parties to mention this matter to me, by arrangement with my Associate [contact details omitted] in relation to an oral hearing.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

HBC 1208 of 2008

MR CARLSON

Appellant

And

MS ACUFF

First Respondent

CHILD SUPPORT REGISTRAR

Second Respondent

REASONS FOR JUDGMENT

This is an appeal from a decision of the Social Security Appeals Tribunal (‘SSAT’) dated 29 October 2008 with respect to the child support assessment of the appellant and the respondent.
In the Notice of Appeal and a supporting affidavit the appellant raises many grounds of appeal. In the Notice of Appeal it is claimed that the SSAT:
a)erred in law in that no tribunal properly advised as to the law in light of the evidence could reasonably have reached the same conclusions;
b)failed to consider the evidence or make findings of fact in relation to the evidence;
c)failed to apply the correct law in relation to its findings;
d)refused to admit S’s affidavit evidence relevant to the issues before the Tribunal;
e)failed to give effect to their finding that Reason 3 has been established;
f)failed to consider the evidence in reaching its conclusions and held itself bound to the Federal Magistrate’s findings made in 2006 in respect of different evidence and circumstances.
In the affidavit the appellant set out further grounds of appeal. While some grounds elaborated those set out in the Notice of Appeal, the following appear to be separate grounds of appeal:
a)The SSAT erred…

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: [2010] FMCAfam 677
Decision Date: 30 June 2010

CaseChat Overview and Summary

In the case of Carlson & Acuff & Anor (SSAT Appeal), the parties were engaged in a dispute regarding child support obligations under the Child Support (Registration and Collection) Act. The matter was heard before the Supreme Court of Victoria, which was required to consider the Social Security Appeals Tribunal's (SSAT) decision. The primary legal issues the court needed to address included whether the SSAT correctly interpreted Section 103H of the Act concerning the prohibition on children of parties to the review from giving evidence, and whether the SSAT adequately assessed the financial obligations of the appellant towards their adult child who was studying full time.

The court found that the SSAT's interpretation of Section 103H was correct, as the provision explicitly referred to "a person" who cannot give evidence, unlike other sections that refer to "a child." However, the court identified a significant error in the SSAT's handling of the evidence concerning the adult child's financial contributions and capacity to support themselves. The court concluded that the SSAT had failed to fully consider whether the adult child could reasonably be expected to contribute financially to the household, despite her part-time work and full-time studies. This oversight was deemed a material error that warranted the appeal.

The court allowed the appeal and remitted the matter to the SSAT to be reheard and determined according to law. The court also directed the second respondent to provide written submissions on the costs of the SSAT transcript within 14 days, with the appellant to respond within the same period. The court reserved liberty for the parties to mention this matter for an oral hearing, with details to be arranged with the court’s associate.

Orders

Orders of the court

The appeal be allowed.

That the matter be remitted to the Social Security Appeals Tribunal to be heard and determined according to law.

The Second Respondent to provide written submissions on the issue of the costs of the SSAT transcript within 14 days.

The Appellant to provide a response within 14 days.

Liberty be reserved to the parties to mention this matter to me, by arrangement with my Associate [contact details omitted] in relation to an oral hearing.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 103H of the Child Support (Registration and Collection) Act prohibits a child of a party to the review from giving evidence:103H [Children of parties not to give evidence]A person may not give evidence for the purposes of a review of a decision if: (a)the person is a child of a party referred to in paragraph 101(1)(a), (c) or (d); or (b)a party referred to in paragraph 101(1)(a), (c) or (d) is a non‑parent carer of the person. (emphasis added) The parties to the review are listed in s.101:101 [Parties to reviews] (1) The parties to a review under this Part are: (a)the applicant; and (b) the Registrar; and (c) any other person who was entitled to apply for review of the decision under section 89; and (d) any other person who has been made a party to the review under subsection (4). (emphasis added) The term ‘child’ is not defined in the Act. The word can refer to a person under 18 years of age, and to a person who is the immediate biological descendant of another (or a person deemed to be so). The argument that S is now 18 years of age and therefore not a child for the purposes of s.103H cannot be sustained on the wording of the provision. Section 103H refers to ‘a person’ when defining the persons who may not give evidence. The section can be compared to s.100B of the Family Law Act which prohibits ‘a child’ rather than ‘a person’. The SSAT’s interpretation of s.103H was correct. In cases such as this it creates a difficult restriction upon the appellant when before the SSAT, however the relevant evidence can still be given by the appellant as the strict rules of evidence do not apply in proceedings before the SSAT. I therefore find against the appellant with respect to this ground of appeal. Evidence was given by the appellant as to S (an adult child of the parties) studying at university. S lives full time with the appellant, and has part time work. The appellant gave evidence of what S uses her income for (see transcript pp.26-27): running a car, discretionary expenses and saving for future travel. It appears that the Tribunal’s findings in this regard must be limited to the question of S’s capacity to support herself as the Tribunal go on to identify the expenses that the appellant incurs for S’s care on a weekly basis in para.[201]. Why the Tribunal made no findings as to whether S could be reasonably expected to contribute financially for the household is not apparent. It seems more likely that the parents do not expect S to contribute more than her own car and discretionary expenditure as she is studying and hoping to travel (travel often being seen as an integral part of a well rounded education). In submissions, the solicitor for the respondent recalculated expenses including S. This is appropriate. The Tribunal’s failure to fully deal with the issues relating to S was an error. There is little doubt that the parents have an obligation to S under s.66L of the Family Law Act 1975, the real question being the amount of the obligation, in light of the parents’ expectations about whether S should contribute to household expenses. In many households parents would not expect a child studying at university to contribute to household expenses.

Decision

Reasons for decision

The Tribunal noted that in some respects it was a dispute between the same parties on the same issues under the same Act as in the case before the Tribunal. On other issues the Tribunal noted it:‘…was cognisant of the fact that different legislative provisions apply to the assessment of [the appellant]’s earning capacity than those that applied when FM Roberts considered the matter. The Tribunal concluded, therefore, for it to adopt without question FM Roberts’ conclusions may lead this Tribunal to the incorrect application of the current law.’ (emphasis added) The relevant findings of FM Roberts were:[70] The [appellant’s] evidence was that, prior to [the appellant’s] application to this Court to vary Orders of the Family Court of Australia, it was necessary for the children to go to [the respondent] after school during the weeks that they were with [the appellant] and for [the appellant] to collect them from [the respondent] after work. Clearly, [the appellant] did not like that. [71]. When [the appellant] was cross-examined further, it became apparent that [the appellant] could have made alternative arrangements for the care of the children after school which did not involve care by [the respondent] or them attending at [the appellant’s] place of employment. On occasions [the appellant’s spouse] had been available to assist, as had [the appellant’s] parents.[72] When I consider the reasoning in DJM & LNM and Spinks, I come to the conclusion that for the purposes of the child support legislation, it was not reasonable for [the appellant] to reduce [the appellant’s] hours to 50%. While that may have been convenient to [the appellant] in relation to … care of the children (and it has certainly allowed [the appellant] to invest significantly more time in [the appellant’s] business), it has resulted in a significant reduction in the child support available for the children when they are in [the respondent’s] care.…[75] The evidence before the Court was that [the respondent] moved the children from one Christian School to another and I accept the [the appellant’s] evidence that it was a joint decision to have the children enrolled at such a school. It is therefore clear that the children are being educated in the manner in which both parties would like them to be educated. In my view it is therefore not appropriate to make any orders requiring [the appellant] to be solely responsible for those fees. If [the respondent’s] contribution to those fees is the result of a NAP (‘non agency payment’) then that is appropriate. I am not persuaded that the Tribunal is correct in not considering itself bound by the principles of issue estoppel, with respect to decisions of the court. However, it is not necessary for me to decide this point as the Tribunal did not deviate from the findings of fact of FM Roberts in the previous decision. Whilst the Tribunal decisions do not create an issue estoppel, court decisions do, and the parties are bound by them.

Ratio Decidendi

Legal Principle Established

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