Hadley and Hadley (SSAT Appeal)

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

1. 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

1. 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   Dr C’s assessment was outdated insofar as reliance on it is concerned to support a view that the applicant had an earning capacity that post dated the assessment by Dr C whereas the evidence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

1. I have taken into account and accepted the following facts.

2. The relevant child support assessments relate to the children [X] born in 1991, [Y] born in 1992 and [Z] born in 1994.

3. 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.