CROWLEY & CROWLEY (SSAT APPEAL) - [2012] FMCAfam 311

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CROWLEY & CROWLEY (SSAT APPEAL)

[2012] FMCAfam 311

CHILD SUPPORT – Irrelevant facts taken into account – no evidence to support conclusion – remit matter back to SSAT.

Child Support (Assessment) Act 1989, ss.3 and 4
Child Support (Regulation & Collection) Act 1988, ss.110B, 103X

Tasman & Tisdale [2010] FMCAfam 425

Applicant:

MR CROWLEY

Respondent:

MS CROWLEY

File Number:

BRC 5457 of 2009

Judgment of:

Coates FM

Hearing date:

4 October 2011

Date of Last Submission:

4 October 2011

Delivered at:

Brisbane

Delivered on:

5 April 2012

REPRESENTATION

Counsel for the Applicant:

Mr G Shoebridge

Solicitors for the Applicant:

Pippa Colman & Associates

Solicitors for the First Respondent:

Self represented

THE COURT ORDERS ON A FINAL BASIS:

That the Appeal from the Decision of the Social Security Appeals Tribunal filed on 12 May 2011 be allowed.
That the matter be remitted to the Social Security Appeals Tribunal for the rehearing.

IT IS NOTED that publication of this judgment under the pseudonym Crowley & Crowley (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 5457 of 2009

MR CROWLEY

Applicant

And

MS CROWLEY

Respondent

REASONS FOR JUDGMENT

This is an Appeal against a decision of the Social Security Appeals Tribunal (“the Tribunal”) made on 19 April 2011.
There is no dispute over the jurisdiction of the court to hear the matter, although there is dispute over whether a question of law arises under s.110B of the Child Support (Regulation & Collection) Act 1988 (“the Act”), the only ground upon which an appeal against a decision of the Tribunal can be brought.
The appellant had representation but the respondent mother represented herself. She sought that the Appeal be dismissed. The Child Support Registrar was represented but appeared to assist the court.
By way of relevant antecedent history, the appellant received serious injuries in 1992 from which he suffered brain damage.
The parties married in 1995.
Two children were born, [in] 2005 and [in] 2007.
The parties separated in March 2009.
On 7 May 2010 orders for property settlement were made by consent wherein the appellant received $49,000 and the respondent mother received $145,000 and a motor vehicle. She also agreed to be responsible for the private school fees for the children – although not necessarily a property settlement matter.
The appellant retained his ComSuper pension of about $30,000 a year and a total and permanent disability pension from the Department of Veteran Affairs of about $30,000 per annum. The last amount is not taxed.
On 29 June 2010, the respondent mother made an application to the Child Support Agency to review the child support assessment wherein she sought that the appellant would be responsible for school fees and that the appellant’s two incomes, that is the ComSuper pension and the disability pension would be considered for child support purposes.
The respondent mother was not successful with regard to the school fees but…

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 CROWLEY & CROWLEY (SSAT APPEAL)

Details

AGLC: CROWLEY & CROWLEY (SSAT APPEAL) [2012] FMCAfam 311
Case: [2012] FMCAfam 311
Decision Date: 5 April 2012

CaseChat Overview and Summary

The case of Crowley v Crowley involves an appeal against a decision made by the Social Security Appeals Tribunal (SSAT) regarding child support payments. The applicant, Mr. Crowley, is appealing the SSAT's decision to consider his disability pension and ComSuper pension as taxable income for child support purposes. The respondent, Ms. Crowley, is self-represented in this matter. The legal issues revolve around whether the SSAT erred in law by considering irrelevant facts and making conclusions without evidence to support them. Specifically, the appellant argues that the SSAT's decision to consider his parents' potential assistance in purchasing an RSL care facility was speculative and not based on any evidence.

The court found that the SSAT did indeed make a jurisdictional error in law by taking into account irrelevant matters and making decisions without evidence. The SSAT's conclusion that there was no reason why Mr. Crowley could not buy into an RSL care facility with the assistance of his family was speculative and not supported by any evidence. The court held that the only relevant resources to consider in this case are those available to the appellant himself. This error affected the decision and may have led to a different outcome had it not been made. The court chose not to set the appellant's income itself but rather to remit the matter back to the SSAT for re-determination, following the usual course before a differently constituted Tribunal, to avoid any perception of unfairness.

In summary, the court allowed the appeal against the SSAT's decision and remitted the matter back to the Tribunal for re-determination. The decision highlights the importance of administrative tribunals, such as the SSAT, adhering to the statutory framework and making decisions based on relevant evidence.

Orders