Costa & Fairbank (SSAT Appeal)

FEDERAL MAGISTRATES COURT OF AUSTRALIA

COSTA & FAIRBANK (SSAT APPEAL) [2010] FMCAfam 39

CHILD SUPPORT – Appeal from decision of SSAT – whether the SSAT erred in finding special circumstances for departure – whether SSAT erred in its considerations of the income and expenses of the applicant.

Child Support (Assessment) Act 1989
Child Support (Registration and Collection) Act 1988
Family Law Act 1975

LDME & JMA (SSAT Appeal) [2007] FMCAfam 712
Tasman & Tisdall [2008] FMCAfam 126
Kennon v Spry (2008) FLC 93-388

Applicant: MR COSTA

Respondent: MS FAIRBANK

File Number: BRC 5095 of 2007

Judgment of: Slack FM

Hearing date: 17 December 2009

Date of Last Submission: 17 December 2009

Delivered at: Brisbane

Delivered on: 22 February 2010

REPRESENTATION

Solicitors for the Applicant: Madsen Law

Solicitors for the Respondent: Sica & Co Solicitors

ORDERS

1. That the Amended Notice of Appeal (Child Support) from the decision of the Social Security Appeals Tribunal filed on 16 October 2009 be dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRC 5095 of 2007

MR COSTA

Applicant

And

MS FAIRBANK

Respondent

REASONS FOR JUDGMENT

1. This is an appeal from a decision of the Social Security Appeals Tribunal (hereafter “the SSAT”) dated 17 July 2009.

2. There are essentially four grounds of appeal in the Amended Notice of Appeal:

   1.     As a question of law, did the Tribunal’s failure to satisfy   itself that special circumstances existed permitting the Tribunal to reduce the Applicant’s wife’s income by $7,023 and increase the Applicant’s income by that same amount, rendered the Tribunal’s decision unsafe or erroneous.

   2.     As a question of law, was the Social Security Appeals Tribunal correct in including or permitted to include the Appellant’s compulsory employer superannuation contributions as part of the Appellant’s taxable or Child Support income.

   3.     As a question of law, do the Social Security Appeals Tribunal erroneous findings that:

   a.      the Applicant and his wife have claimed their mortgage payments as a business expense (para.60) when in fact they have not; and

   b.      the Applicant’s wife has rental property (Victoria) expenses of $22,375 (para.59 - $15,600 for gross rent (sic) plus $6,775 for other rental income) when her tax return clearly does not state this; and

   c.      that ½ of this miscalculated sum of $22,373 (ie $11,187) should be added back to the  Applicant’s income as the Applicant’s mortgage payments (for his and his wife’s Queensland home) are the subject of a claimed business expense deduction, which it never was

   render the Social Securities Appeals Tribunal decision concerning the Applicant’s adjusted taxable income sufficiently unsound or erroneous so as to thereby warrant the granting of the Orders sought.

   4.     As a question of law, was it open to the Social Security Appeals Tribunal (as it did as para.46 of the Decision) to disregard entirely the travel costs of the  Appellant in spending time with his children…