Crowell and Bodrey (SSAT Appeal) - [2011] FMCAfam 275

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CROWELL & BODREY (SSAT APPEAL)

[2011] FMCAfam 275

CHILD SUPPORT – SSAT APPEAL – Appeal from SSAT decision – adequacy of reasons and requirement for procedural fairness – appeal upheld – matter remitted to SSAT for re-hearing.

Child Support (Registration and Collection) Act 1988, ss.103X, 110B, 110F
Child Support (Assessment) Act 1989, ss.58, 98, 107, 117

Repatriation Commission v O'Brien [1985] HCA 10; (1985) 155 CLR 422
Kioa v West [1985] HCA 81
Gyselman & Gyselman (1992) FLC 92-279
Merriman & Merriman (1993) FLC 92-422
DJM & JLM (1998) FamCA 97
Johnson & Johnson [1998] FamCA 1519
Spinks & Spinks [2001] FamCA 197
PJ & Child Support Registrar [2007] FLC 98-035
Godfrey & Godfrey [2009] FMCAfam 626
Agrippa & Horton (SSAT Appeal) [2010] FMCAfam 1144
Bedell & Kastens & Anor (SSAT Appeal) [2010] FMCAfam 1250

Applicant:

MS CROWELL

Respondent:

MR BODREY

File Number:

HBC 919 of 2010

Judgment of:

Bender FM

Hearing date:

25 March 2011

Date of Last Submission:

25 March 2011

Delivered at:

Hobart

Delivered on:

1 July 2011

REPRESENTATION

Counsel for the Applicant:

Self-represented

Solicitors for the Applicant:

Self-represented

Counsel for the Respondent:

Self-represented

Solicitors for the Respondent:

Self-represented

ORDERS

The appellant’s appeal against the decision of the Social Security Appeals Tribunal dated 8 October 2010 to add $3,648.00 to the costs of the child for the period 1 April 2009 until 30 October 2012 be allowed.
The matter be remitted to the Social Security Appeals Tribunal for

re-hearing.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT HOBART

HBC 919 of 2010

MS CROWELL

Applicant

And

MR BODREY

Respondent

REASONS FOR JUDGMENT

Introduction

This is an appeal from a decision of the Social Security Appeals Tribunal (“the SSAT”) dated 26 August 2010 relating to child support payable by the respondent father.
The parties are the parents of one child, who is the subject of the child support assessment [X] born [in] 1995 (“[X]”). The parties separated in May 1996. Save for a limited period between 2003 and 2006, [X] has had no contact with the respondent and has lived and lives at all times with the appellant.
Since 1996 there has been continuous disputes, review and appeals in relation to the child support the respondent pays for [X].
At the time the parties commenced cohabitation, the respondent was employed as a [omitted]. In 1996, he left the [omitted] profession to embark on full-time study. He was engaged in full-time study until November 2009 when he discontinued his doctoral studies without submission of his doctoral thesis.
The appellant is employed by [omitted] with an adjusted taxable income of approximately $63,000.00.
Both parties were self represented throughout the Review and Appeal processes.

Child Support History

Between 22 September 2006 and 31 March 2009, the annual rate of child support payable by the respondent was set…

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: [2011] FMCAfam 275
Decision Date: 1 July 2011

CaseChat Overview and Summary

The appeal before the Court involved Crowell, the appellant, challenging a decision by the Social Security Appeals Tribunal (SSAT). The SSAT had determined that an additional sum of $3,648.00 should be allocated towards the costs of the child for the specified period. The crux of the appeal lay in the appellant’s contention that the SSAT’s decision was flawed and should be overturned. The SSAT’s determination had added a significant amount to the child support costs, which the appellant contested on the basis that the tribunal had erred in its calculation or application of the relevant statutory provisions.

The primary legal issue before the Court was whether the SSAT had correctly applied the relevant legislative framework in determining the additional child support costs. The appellant argued that the tribunal had not adequately justified the increase in costs, and that the decision was not supported by the evidence or the applicable law. The Court was tasked with reviewing the SSAT’s decision to ensure it was legally sound, and to determine if there were any errors in the tribunal's interpretation or application of the law.

Upon reviewing the SSAT’s decision, the Court found that there were indeed errors in the tribunal’s reasoning. The Court determined that the SSAT had not provided a clear and adequate explanation for the increase in child support costs, nor had it properly considered all relevant factors. Consequently, the Court concluded that the SSAT’s decision was flawed and remitted the matter back for re-hearing. The Court’s decision to allow the appeal and remit the matter was grounded in the need for the tribunal to properly apply the relevant legal principles and ensure that its determination was both justified and transparent.

Orders

Orders of the court

The appellant’s appeal against the decision of the Social Security Appeals Tribunal dated 8 October 2010 to add $3,648.00 to the costs of the child for the period 1 April 2009 until 30 October 2012 be allowed.

The matter be remitted to the Social Security Appeals Tribunal for

re-hearing.

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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