FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HADLEY & HADLEY (SSAT APPEAL) | [2008] FMCAfam 1252 |
| CHILD SUPPORT – Appeal from decision of SSAT – earning capacity of the applicant – application of s.117(7B). |
| Child Support (Assessment) Act 1989 Child Support (Registration and Collection) Act 1988 Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006 |
| LDME & JMA (SSAT Appeal) [2007] FMCAfam 712 Tasman & Tisdall [2008] FMCAfam 126 |
| Applicant: | MR HADLEY |
| Respondent: | MS HADLEY |
| File Number: | BRC 3839 of 2008 |
| Judgment of: | Slack FM |
| Hearing date: | 13 November 2008 |
| Date of Last Submission: | 13 November 2008 |
| Delivered at: | Brisbane |
| Delivered on: | 24 December 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr McGregor |
| Solicitors for the Applicant: | Lember & Williams |
| Counsel for the Respondent: | Mr Burridge |
| Solicitors for the Respondent: | Biggs Fitzgerald Pike |
ORDERS
That the Appeal be allowed and the matter be remitted to the SSAT to be reheard by a differently constituted Tribunal.
IT IS NOTED that publication of this judgment under the pseudonym Hadley & Hadley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 3839 of 2008
| MR HADLEY |
Applicant
And
| MS HADLEY |
Respondent
REASONS FOR JUDGMENT
In this appeal from the decision of the Social Security Appeals Tribunal (hereafter “the SSAT”) dated 31 March 2008, the applicant relies on five grounds of appeal, namely:
1.The SSAT erred in determining as it did that the ground referred to in sections 117(2)(c)(ia) and 117(2)(c)(ib) were made out.
2.The determination that the ‘First Applicant’ would have an income of $36,000 was not supported by the evidence and was in error.
3.The determination by the Tribunal to prefer the assessment of Dr C referred to in paragraph 73 of the reasons for decision was misguided and against the evidence in that
Dr C’s assessment was outdated insofar as reliance on it is concerned to support a view that the applicant had an earning capacity that post dated the assessment by Dr C whereas the evidence of Dr R covered the relevant period (Dr C did not) and he was the applicant’s treating medical practitioner (whereas Dr C saw Mr Hadley on one occasion only).
4.The finding of the Tribunal in paragraph 74 of the determination that Mr Hadley’s cessation of work was not justified on medical grounds was against the evidence and in error.
5.The determination in paragraphs 75 and 76 of the decision to the effect that Mr Hadley has an earning capacity of $36,000 or $35,000 per annum is not supported by evidence and is in error.
Background
I have taken into account and accepted the following facts.
The relevant child support assessments relate to the children [X] born in 1991, [Y] born in 1992 and [Z] born in 1994.
For the period 29 March 2006 to 22 May 2006, the applicant was administratively assessed to pay an annual rate of child support of $1,874.
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- Case
- [2008] FMCAfam 1252
- Decision Date
CaseChat Overview and Summary
The court was required to interpret and apply the provisions of Item 77 of Schedule 3 of the Reform Act. The relevant subitems provided that decisions made by the Registrar under the Registration and Collection Act or the Assessment Act before the commencement of the Reform Act were subject to Part VII (internal review). However, decisions on objections completed before the commencement of the Reform Act were governed by the Acts as in force immediately before that commencement. The court needed to determine whether the objection decisions made during 2006 for the child support period ending 31 December 2006 were reviewable by the SSAT.
The court concluded that the objection decisions made during 2006 for the child support period ending 31 December 2006 were not reviewable by the SSAT. This was based on Item 77(3) of Schedule 3 of the Reform Act, which stipulated that the SSAT review provisions did not apply to those objection decisions as the relevant Acts continued to apply in relation to the original decision and the objection decision. Consequently, the appeal was allowed, and the matter was remitted to the SSAT to be reheard by a differently constituted Tribunal.
ORDERS:
1. That the Appeal be allowed and the matter be remitted to the SSAT to be reheard by a differently constituted Tribunal.
Orders
Orders of the court
1.
That the Appeal be allowed and the matter be remitted to the SSAT to be reheard by a differently constituted Tribunal.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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