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Carrigan & Fredericks (SSAT Appeal)

Carrigan & Fredericks (SSAT Appeal)

Case [2011] FMCAfam 544 15 June 2011

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

CARRIGAN & FREDERICKS (SSAT APPEAL)

[2011] FMCAfam 544

CHILD SUPPORT – Appeal from decision of SSAT – error of law – terminating event for child support purposes – payer of child support resident in [Q] – whether error of law established in reasoning of SSAT – error established – appeal upheld.

Child Support (Assessment) Act 1989, ss.12(3), 12(4A)(b), 25, 29A, 74, 100, 117(7B)
Child Support (Registration and Collection) Act 1988, ss.17, 72D, 110B, 110E, 110F, 110G, 110G(2)
Family Law Act 1975 (Cth), s.117
Income Tax Assessment Act 1936, ss.6(a), 7A(2)

Taxation Ruling IT2650
Maider & Carrigan [2009] FamCA 483
SSAT Reasons for Decision dated 24 May 2010
Neal v Secretary, Department of Transport (1980) 3 ALD 97
Comcare v Etheridge [2006] FCAFC 27
Blackwood Hodge (Australia) Pty Ltd v Collector of Customs (No.2) (1980) 33 ALD 38
Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244
Apthorpe v Repatriation Commission (1987) 13 ALD 656
Minister for Immigration & Multicultural Affairs: Ex Parte Applicant S20/2002 (2003) 198ALR 59
Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprise Pty Ltd [1993] 43 FCR 280
LDME & JMA [2007] FMCAfam 712
Browne v Green (2002) 29 Fam LR 428

Applicant:

MR CARRIGAN

Respondent:

MS FREDERICKS

File Number:

ADC 2519 of 2010

Judgment of:

Brown FM

Hearing date:

29 March 2011

Date of Last Submission:

29 March 2011

Delivered at:

Adelaide

Delivered on:

15 June 2011

REPRESENTATION

Counsel for the Applicant:

Ms Ross

Solicitor for the Applicant:

Matthew Mitchell

Counsel for the Respondent:

Ms Fredericks in Person

ORDERS

The decision of the Social Securities Appeals Tribunal made on 24 May 2010 and despatched on 7 June 2010 be set aside.
It is declared that the appellant ceased to be a permanent resident of Australia on 17 January 2008 and this constituted a terminating event for the purposes of all pre-existing administrative assessments of child support pertaining to the parties in these proceedings.
The notice of appeal filed on 2 July 2010 is dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADC 2519 of 2010

MR CARRIGAN

Applicant

And

MS FREDERICKS

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings were commenced by Mr Carrigan (“the appellant”). The respondent in the proceedings is Ms Fredericks (formerly

Ms Maider) (“the respondent”). The proceedings are concerned with a decision of the Social Securities Appeal Tribunal “the SSAT” made on 24 May 2010.[1]
[1] The decision was despatched to the parties on 7 June 2010.
On 2 July 2010, the appellant filed a notice of appeal, in this court, in respect of the decision. He seeks an order that the decision of the SSAT be set aside. The decision concerns the appellant’s residency in Australia, for the purpose of calculating child support, particularly the exact date on which he…

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.

Continue reading Carrigan & Fredericks (SSAT Appeal)

Details

AGLC: Carrigan & Fredericks (SSAT Appeal) [2011] FMCAfam 544
Case: [2011] FMCAfam 544
Decision Date: 15 June 2011

CaseChat Overview and Summary

The appeal before the court involved Carrigan, the appellant, and Fredericks, the respondent. The dispute centred on the validity of the appellant’s permanent residency status and its effect on child support assessments. The matter was determined in the Federal Circuit Court of Australia. The appellant argued that the tribunal had erred in finding that his departure from Australia on 17 January 2008 did not result in the termination of his permanent residency and, consequently, the child support assessments. The respondent contended that the tribunal's decision was correct and that the appellant's departure did not constitute a terminating event for the purposes of the child support assessments.

The court was tasked with determining whether the appellant's departure from Australia on 17 January 2008 constituted a terminating event for the purposes of child support assessments. The court had to consider whether the appellant's departure resulted in a cessation of his permanent residency status and, if so, whether this cessation constituted a terminating event. The court also needed to examine the relevant legislative provisions and the applicable administrative practices to ascertain the correct interpretation and application of the law in this context.

In delivering the judgment, the court examined the statutory provisions and administrative guidelines governing the cessation of permanent residency and its impact on child support assessments. The court held that the appellant's departure from Australia on the specified date did indeed result in the termination of his permanent residency status. Consequently, this termination constituted a terminating event for the purposes of all pre-existing administrative assessments of child support. The court found that the tribunal had erred in its assessment of the appellant's residency status and its implications for the child support assessments. The appeal was dismissed, and the decision of the tribunal was set aside.

Orders

Orders of the court

The decision of the Social Securities Appeals Tribunal made on 24 May 2010 and despatched on 7 June 2010 be set aside.

It is declared that the appellant ceased to be a permanent resident of Australia on 17 January 2008 and this constituted a terminating event for the purposes of all pre-existing administrative assessments of child support pertaining to the parties in these proceedings.

The notice of appeal filed on 2 July 2010 is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Carrigan & Fredericks (SSAT Appeal) [2011] FMCAfam 544

Most Recent Citation

FREDERICKS & CARRIGAN [2012] FMCAfam 663

Cases citing this decision · 15 of 15 shown

Wilanski and Horacek (Child support)
[2025] ARTA 933 Para 7

…is a question of fact to be determined in the light of all the circumstances of each case: Carrigan & Fredericks (SSAT Appeal) [2011] FMCAfam 544 ( Carrington ).…
Eberhardt and Stubbs (Child support)
[2020] AATA 880 Para 10

…ide (the Guide). On appeal from a decision of the Tribunal, the Federal Magistrates Court considered residency in Carrigan & Fredericks (SSAT Appeal) [2011] FMCAfam 544 ( Carrigan ), although the issue in dispute was confined to the date from which the liable parent became a non-resident.…
Strong v Strong
[2017] FCCA 2954 Para 2

…I note the Applicant referred to the decision of Carrigan & Fredericks (SSAT Appeal) [2011] FMCAfam 544 at [105] where Brown FM (as he then was) described the nature of “ a question of law ”. “[105] An administrative tribunal exceeds its powers and thus commits a jurisdictional error, which is correctable on appeal i…
SCVG & KLD
[2017] FamCAFC 95 Para 1

…to amend the grounds of appeal, the respondent opposed the orders sought. Relying on the decision of Brown FM in Carrigan & Fredericks (SSAT) Appeal [2011] FMCAfam 544, the respondent submitted: 76.The thrust of the First Respondent’s submission is that the Appellant, being unhappy with the determination of the SSAT…
Baylden and Baylden and Anor (SSAT Appeal)
[2015] FCCA 2886 Para 9

…nded Grounds of Appeal. The First Respondent later filed a lengthy affidavit on 22 October 2013, sworn the day before. [6] As his Honour then was [7] [2011] FMCAfam 544…
Hallett and Hallett and Anor (SSAT Appeal)
[2015] FCCA 2462 Para 2

…d the question of whether the Applicant was a resident of a reciprocating jurisdiction is one of fact (see Carrigan & Fredricks (SSAT Appeal) [2011] FMCAfam 544 at paragraph [118] and paragraph [136]). I therefore accept this ground has no reasonable prospect of success and should therefore be dismissed.…
Penman and Child Support Registrar and Anor
[2015] FamCAFC 135 Para 3

…he introductory paragraphs of his submission, the Appellant referred to the decisions of this Court in Carrigan & Fredericks (SSAT Appeal) [[2011] FMCAfam 544]; Tasman & Tisdell (SSAT Appeal) [[2008] FMCAfam 126] and Jordan & Verne (SSAT Appeal) [[2012] FMCAfam 21; (2012) 46 Fam LR 629] . 45.The Appellant submits tha…
Victor & Duncan & Anor (SSAT Appeal)
[2015] FCCA 1073 Para 2

…uccinct summary at [103], [105], [107] – [108], of the principles to be followed in considering an appeal of this nature. [29] Now Judge Brown [30] [2011] FMCAfam 544 [31] [2012] FMCAfam 735…
Laracy and Laracy and Anor (SSAT Appeal)
[2014] FCCA 491 Para 2

…r should this court, other than in exceptional circumstances, challenge findings of fact made by the SSAT. [3] [1] As his Honour then was [2] [2011] FMCAfam 544; (2011) 45 Fam LR 657 [3] Footnotes omitted…
Penman & Child Support Registrar & Anor (SSAT Appeal)
[2013] FCCA 492 Para 1

…the decisions of this Court in Carrigan & Fredericks (SSAT Appeal)[9] ; Tasman & Tisdell (SSAT Appeal)[10] and Jordan & Verne (SSAT Appeal)[11]. [9] [2011] FMCAfam 544 [10] [2008] FMCAfam 126 [11] [2012] FMCAfam 21; (2012) 46 Fam LR 629…
Stark & Sherman & Anor (SSAT Appeal)
[2012] FMCAfam 1184 Para 10

…eal of this nature set out by Brown FM in Carrigan & Fredericks (SSAT Appeal)[7] at paragraphs [103], [107] and [108] of his Honour’s decision. [7] [2011] FMCAfam 544…
Malak & Mairie & Anor (SSAT Appeal)
[2012] FMCAfam 1138 Para 4

…the very jurisdiction which it purports to exercise rendering its decision perverse or unreasonable or otherwise offending logic… [23] [22] [2011] FMCAfam 544 [23] Footnote omitted…
Fawkner & Fawkner & Anor (SSAT Appeal)
[2012] FMCAfam 755 Para 1

…at [103], [105], [107] and [108], Brown FM provides a succinct summary of the principles to be followed in considering an appeal of this nature: [15] [2011] FMCAfam 544 103. It is the function of this court to determine whether the decision of the SAT was within its legal powers. That is what is meant by a question o…
Schmidt & Geller (SSAT Appeal)
[2012] FMCAfam 735 Para 3

…at [103], [105], [107] and [108], Brown FM provides a succinct summary of the principles to be followed in considering an appeal of this nature: [34] [2011] FMCAfam 544 103. It is the function of this court to determine whether the decision of the SSAT was within its legal powers. That is what is meant by a question…
FREDERICKS & CARRIGAN
[2012] FMCAfam 663 Para 11

…ceedings. It was the subject of the proceedings before me, which commenced as an appeal from a decision of the SSAT.[1] [1] See Carrigan & Fredericks [2011] FMCAfam 544…

View all 15 citing cases →

Cases cited in this decision · 8 of 8 shown

Comptroller-General of Customs v Pharm-A-Care Laboratories Pty Ltd
[2020] HCA 2 Para 9

…Accordingly, this court should not be concerned as to whether or not it would have come to the same conclusion as the SSAT did, but only whether the SSAT erred in law,[24] as it is only in “exceptional circumstances” that the decision of the Tribunal should not be the final decision.[25] [24] See Ne…
Maider & Carrigan
[2009] FamCA 483 Para 8

…rent partner, in Doha, the capital of [Q]. Burr J made a finding to this effect, in the applicable reasons for judgment.[3] [3] See Maider & Carrigan [2009] FamCA 483 at paragraph 27…
LDME & JMA (SSAT Appeal)
[2007] FMCAfam 712 Para 15

…or error, the court should not examine the decision in question with an eye “keenly attuned to the perception of error” . [30] See LDME & JMA [2007] FMCAfam 712 at paragraph 29…
Browne v Green
[2002] FamCA 791

…02 (2003) 198ALR 59 Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprise Pty Ltd [1993] 43 FCR 280 LDME & JMA [2007] FMCAfam 712 Browne v Green (2002) 29 Fam LR 428…
Htun v Minister for Immigration & Multicultural Affairs
[2001] FCA 1802 Para 11

…26]Rather I should take a commonsense approach to what the SSAT was saying in its decision and the reasons why it did said what it said. [26] See Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at 258…
Htun v Minister for Immigration and Multicultural Affairs
[2001] FCA 824 Para 11

…he SSAT was saying in its decision and the reasons why it did said what it said. [26] See Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at 258…
Collector of Customs v Pozzolanic Enterprises Pty Ltd
[1993] FCA 456 Para 14

…re only when the identified error is one of law.” [29] Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprise Pty Ltd [1993] 43 FCR 280…
Mr Jacobs relied are concerned with appeals under other statutes and may be distinguished. Comcare v Etheridge
[2006] FCAFC 27 Para 9

…uld not be the final decision.[25] [24] See Neal v Secretary, Department of Transport (1980) 3 ALD 97 at 100 per Franki J and Comcare v Etheridge [2006] FCAFC 27 at paragraph [14] per Branson J. [25] See Blackwood Hodge (Australia) Pty Ltd v Collector of Customs (No 2) (1980) 33 ALD 38 at 49 per Fisher J.…

Legislation cited in this decision · 6

Child Support (Assessment) Act 1989 (Cth)
100, 117(7B), 12(3), 12(4A)(b), 25, 29A,... 8 mentions (from Para 4)
Child Support (Registration and Collection) Act 1988 (Cth)
110B, 110E, 110F, 110G, 110G(2), 17, 72D 8 mentions (from Para 5)
Income Tax Assessment Act 1936 (Cth)
6(a), 7A(2) 3 mentions (from Para 18)
Family Law Act 1975 (Cth)
117 2 mentions (from Para 18)
Superannuation Act 1976 (Cth)
1 mention (from Para 4)
Superannuation Act 1990 (Cth)
1 mention (from Para 4)