Hadley and Hadley (SSAT Appeal)
[2008] FMCAfam 1252
•24 December 2008
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Dr C’s assessment was outdated insofar as reliance on it is concerned to support a view that the applicant had an earning capacity that post dated the assessment by Dr C whereas the evidence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.
As a result of a change in assessment application brought by the respondent under Part 6A of the Child Support (Assessment Act) 1989 (as amended), for the period from 23 May 2006 to 31 December 2006, the assessment of child support was fixed by way of a departure decision at an annual rate of $8,840. An objection to that decision was disallowed on 1 September 2006.
There was a subsequent application for change in assessment lodged by the applicant on 24 July 2006. This application was refused.
An objection to that decision was disallowed on 20 November 2006.
For the period 1 January 2007 to 28 June 2007, the child support assessment that issued, based upon the applicant’s estimate of income of nil, was that the applicant was assessed to pay the minimum annual rate of $320.
An application for change of assessment was then lodged by the respondent on 18 December 2006 in which she sought a change in the assessment periods from 31/12/06 to continuous. An application for change of assessment was lodged by the applicant on 3 January 2007 and in his application he sought that the amount of child support be reduced to nil back dated to 29-3-06.
On 7 June 2007, a senior case officer found that, notwithstanding that the reasons to depart from the child support assessment were established, because the applicant had no income beyond a Centrelink benefit and no current earning capacity, he could not provide additional child support. Consequently the respondent’s application was refused. It is not immediately clear from the decision of the senior case officer that the applicant’s application was refused but there was no adjustment to the child support assessment for the period after
29 March 2006. It would seem from the reasons that the child support review officer did review the objections decision made on 21 June 2006 in that she stated:
I committed to reviewing the objection in the light of his information in case some of his information had not been considered in the objection.
Both parties objected to the decision and on 14 September 2007, an objections officer disallowed both parties’ objections. For some reason (and the reason is not immediately clear) the objections officer was referring to the assessment for the child support period from 1 January 2007 until 28 September 2008. It is not immediately clear from the reasons that he decided the assessment until 28 September 2008. The objections officer though refused to consider the husband’s objection for the period during 2006 (see the second last page of the reasons). He disallowed the objection of the applicant and respondent.
Mr Hadley appealed to the SSAT on 21 September 2007 and
Ms Hadley appealed to the Tribunal on 27 September 2007.
The appeals were heard and determined together. During the course of the hearing it emerged that the applicant’s appeal related to the period commencing 23 May 2006 onwards and the respondent’s appeal only to the period 1 January 2007 onwards. The Tribunal determined the appeals from 23 May 2006 onwards.
By the time that the matter was before the SSAT another administrative assessment had issued for the period 29 June 2007 until 28 September 2008 and the applicant was assessed on an income of nil.
It seems that the SSAT then proceeded to review the child support period from May 2006 until 30 June 2008.
Further background facts
The following background facts would appear not to be in dispute.
Prior to the separation of the applicant and the respondent they operated a family business, [H] Pty Ltd. As part of that business the applicant [occupation omitted]. The applicant continued to operate the business for a period after separation with the intention of selling the business and maximising the price that he would be able to obtain for the business. The applicant did not continue to operate the business after 23 December 2005 and the business was sold in 2006.
An application proceeded before Federal Magistrate Jarrett for parenting orders and property settlement. FM Jarrett delivered reasons after a contested hearing on 22 July 2007. The effect of the property orders was to divide the property of the parties between them with a 60% adjustment in favour of the respondent and a 40% adjustment to the applicant.
It does not appear to be in dispute that the applicant was not engaged in regular employment after the sale of the business in December 2005.
It would also not appear to be in dispute that the husband had been engaged throughout most of his working life and had obtained skills in [omitted].
The applicant had worked for a time with [R] but otherwise there was no evidence before the SSAT the he had worked in any other capacity.
The applicant asserted that he had been unable to engage in any paid employment during the relevant period because of his medical condition.
Decision of the Tribunal
The Tribunal decided to set aside the decision under review and substitute the following decision:
For the period from 1 January 2007 to 30 December 2007,
Mr Hadley be assessed to pay child support at an annual rate of $10,341.
For the period from 1 January 2008 to 30 June 2008, Mr Hadley be assessed to pay child support at an annual rate of $9,816.
The Tribunal did not, apparently, amend the child support assessment for the period from 23 May 2006 to 31 December 2006 although it would seem that the SSAT did regard that period as being part of the review that it was conducting (see pages 10 and 11 of the transcript).
It is curious though that both parties sought an adjournment of the proceedings until the issue of the 2006 period could be resolved and the SSAT decided that it had jurisdiction to deal with the 2006 period but considered that the most expedient and cost effective outcome for both of the parties today is to have the matter heard in respect of all of the issues.
After having determined that special circumstances were established for a ground of departure, the Tribunal then went on to determine whether a departure from the formula would be just and equitable.
Ultimately, the SSAT found the Mr Hadley’s cessation of work is not justified on medical grounds (para 74 of the reasons) and that therefore he had not rebutted the presumption raised by paragraph (c) (a reference to s.117(7B) ( c) of the Act).
The SSAT then found (para 75-76 of the reasons):
Although Mr Hadley says he has not worked, the Tribunal’s view is that it is appropriate in the circumstances to determine his earning capacity in terms of what he would be paid if he was to utilise the skills that he currently has. Mr D’s view was that he could earn up to $36,000 per year. Ms Hadley thinks he could be paid at a clerical rate between $35,000 and $38,000.
The Tribunal is of the view that both Mr and Ms Hadley have a similar earning capacity. Both suffer from depression and are on anti-depressant medication. For the 2007 year, the child support income used for Ms Hadley to determine the child support liability was $33,038. For the 2007 year, it was $35,158. The Tribunal is of the view that this is also reflective of Mr Hadley’s earning capacity.
It is against these findings that the applicant says that the Tribunal has erred.
Principles
The principles relating to “appeals” from decisions of the SSAT have been concisely stated in the decision of FM Halligan LDME & JMA (SSAT Appeal) [2007] FMCAfam 712, paras 17 to 33 of the Reasons. On the question of discerning an error of law in the Reasons of the SSAT, FM Halligan said (and I adopt):
It is well settled then that when reviewing an administrative decision for error, a Court should not be ‘concerned with looseness in language nor with unhappy phrasing’ and, the reasons for the decision under review are not to be construed minutely and finally with a eye keenly attuned to the perception of error” (Collector of Customs v Pozzolanic Enterprises Pty Ltd, above, at 287, cited with approval in Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ, and see the comments of Kirby J to similar effect at 291).
The SSAT is an administrative tribunal, not a Court of law, and is bound to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick (s.88, Registration Act, and compare s.141, Social Security (Administration) Act 1999). It is not afforded the luxury of lengthy deliberation on the reasons for its decisions, but must give the parties written notice of its decision on the review and written or oral reasons for that decision within 14 days of making the decision (s.103X, Registration Act). The function of the SSAT is not to deliver judgments of jurisprudential excellence when delivering its reasons. In my view, therefore, the above authorities apply to a s.110B appeal, and the court reviewing the reasons for decision of the SSAT in such an appeal to discern legal error should not adopt an overly pedantic approach.
Halligan FM went on to say in relation to the power of Courts concerning appeals of this type:
The Court “must” hear and determine an appeal from the SSAT, and “may” make such order as it thinks appropriate by reason of its decision (s.110F(1), Registration Act). The orders a Court may make on a s.110B appeal include an order affirming or setting aside the decision of the SSAT, or an order remitting the case to be heard and decided again by the SSAT, either with or without the hearing of further evidence, in accordance with the directions of the Court (s.110F(2)).
Three points may be made about the Court’s powers in a s.110B appeal.
First, the use of the word “may” clearly signifies that the power is discretionary. The fact an error of law by the SSAT is found does not inevitably lead to the decision being set aside. For example, if it is clear there would be no purpose served by having the case heard again, the Court may, in the exercise of its discretion, decline to remit the matter to be heard and determined again, and affirm the decision under appeal (see Clements v Independent Indigenous Advisory Committee, above, at [41]).
Second, the power to make such order as the Court thinks fit is qualified by the words “by reason of its decision”. The “decision” in this context is the decision on the hearing and determination of the appeal (s.110F(1)), the appeal being “on a question of law” (s.110B). Thus, the orders made must flow from a finding in favour of the Applicant on an identified question or questions of law.
Third, the particular power under s.110F(2) to make the orders specified in that subsection does not limit the general power under s.110F(1) to make such order as the Court thinks appropriate by reason of its decision on the appeal.
In Tasman & Tisdall [2008] FMCAfam126 FM Brown said (at paragraph 44):
An Administrative Tribunal exceeds its powers and thus commits jurisdictional error, which is correctable on appeal in respect to the question of law, if it:
(i)fails to construe properly the legislative provisions applicable;
(ii)identifies the wrong issues or asks itself the wrong questions;
(iii) ignores relevant material or relies on irrelevant material;
(iv) fails to accord procedural fairness to the party before it;
(v)makes an erroneous finding of such a magnitude that it goes to the very jurisdiction which it purports to exercise rendering its decision perverse or unreasonable or otherwise offending logic.
Decision – Discussion and conclusions
The change in assessment application for the child support period from 23 May 2006 until 31 December 2006
Applications for change of child support assessment were determined by two child support case officers during 2006. Objections to the change of assessment decisions were determined on 1 September 2006 and 20 November 2006.
The Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006 (the Reform Act) introduced amendments commencing from 1 January 2007 and those amendments included the repeal of Part 6B of the Assessment Act (Item 16, Schedule 3, New Formula Act). Included were new internal objection procedures covering specified decisions of the Registrar under both the Assessment Act and the Registration Act as Part VII of the Registration Act (Item 69, Schedule 3, New Formula Act). The same item in Schedule 3 of the New Formula Act also inserted the new Part VIIA in the Registration Act dealing with review applications to the SSAT from decisions of the Registrar under the new Part VII.
Part 2 of Schedule 3 of the Reform Act contains the provisions as to whether and, if so how, pending matters are caught by the new internal objection procedures and the SSAT merits review regime. Relevant to this case, Item 77(1) – (5) provide:
77 Application–review of decisions
Decisions of the Registrar–internal review pending or not yet started at commencement
(1) Subject to subitem (3), Part VII (internal review) of the Registration and Collection Act (as amended by this Schedule) applies in relation to a decision made by the Registrar under that Act or the Assessment Act before or after the commencement of this item.
Note: Part VII of the Registration and Collection Act (as amended by this Schedule) also applies if a proceeding for internal review was pending under that Part or Part 6B of the Assessment Act immediately before the commencement of this item (see subitem (4)).
(2) Part VIIA (SSAT review) of the Registration and Collection Act (as inserted by this Schedule) applies in relation to a decision made by the Registrar under subsection 83(1) or 87(1) of the Registration and Collection Act after the commencement of this item.
Decisions of the Registrar–internal review completed before commencement
(3) If, before the commencement of this item:
(a) a person objected under:
(i) Part 6B of the Assessment Act; or
(ii) Part VII of the Registration and Collection Act;
to a decision (however described) of the Registrar (the original decision); and
(b) the Registrar made a decision (the objection decision) on the objection under:
(i) subsection 98ZC(1) of the Assessment Act; or
(ii) subsection 87(1) or 98(1) of the Registration and Collection Act;
those Acts, as in force immediately before that commencement, continue to apply in relation to the original decision and the objection decision.
Pending proceedings–internal reviews
(4) A proceeding before the Registrar that, immediately before the commencement of this item, was pending under:
(a) Part 6B of the Assessment Act; or
(b) Part VII of the Registration and Collection Act;
is taken, at that commencement, to be pending under Part VII of the Registration and Collection Act as amended by this Schedule.
(5) The Assessment Act and the Registration and Collection Act, as in force immediately before the commencement of this item, continue to apply in relation to a decision made by the Registrar before that commencement under:
(a) subsection 98ZE(1) of the Assessment Act; or
(b) subsection 91(1) or 101(1) of the Registration and Collection Act.
Relevant to the facts of this matter, the objections with respect to the child support period up to 31 December 2006 under Part 6B of the Assessment Act had been decided during 2006.
Under Item 77(3) of Schedule 3 of the Reform Act, the SSAT review provisions did not apply to those objection decisions as those Acts as in force immediately before that commencement continue to apply in relation to the original decision and the objection decision.
Therefore, I consider that the objection decisions made during 2006 for the child support period ending 31 December 2006 were not reviewable by the SSAT.
At issue is whether the authority to review the child support period ending 31 December 2006 by the SSAT was enlivened by the decision of the child support case officer on 7 June 2007 when she accepted the applicant’s application to review the decisions made in 2006.
It is not clear from the decision that she ever determined that application. More relevantly, it is clear from the decision of the objections officer dated 14 September 2007 that he decided that he had no authority to review the relevant objection. He correctly decided, in my view, that the appropriate remedy for the applicant was an application to a Court, pursuant to the legislation as it stood prior to
1 January 2007.
For the reasons given, I am not satisfied that the SSAT had any authority to decide the application in relation to the objection for the child support period up to 31 December 2006 and the decision should be set aside. The effect of this decision will, of course, be that the existing child support assessment will remain in place.
Any remedy that the applicant may now have in relation to the child support period up to 31 December 2006 arises under the legislation as it then existed prior to 1 January 2007.
Application in relation to the 2007/2008 child support period
In the hearing before the SSAT (conducted on 24 January 2008) there did not appear to be any dispute that the applicant had not worked in paid employment during the period between March 2006 and the date of the hearing by the SSAT.
At the hearing before the SSAT the applicant contended that he was unable to work in paid employment and at the hearing he produced reports as to his state of health from two medical practitioners:
a)Dr R, a General Practitioner; and
b)Dr C, a treating Psychiatrist.
Neither doctor was cross-examined (although some attempt was made to hear further from Dr C for the purposes of the hearing).
In the documents relied upon by the applicant at the hearing, there were a number of reports of Dr R.
On 22 February 2007 Dr R prepared a report as follows:
This is to certify that I have today examined:
Mr Hadley
I have recently reviewed a letter by Dr C, Consultant Psychiatrist, about Mr Hadley’s health. He supports his claim for sickness benefits based on his symptoms and history. It should be noted that the problem has been present for some 17 months. From discussions with him and the recent review by a psychiatrist, it supports his inability to work safely and productively over that period of time. The future recovery time is unknown and could be many months to a year. This should be taken into account when assessing CSA payments.
There was a further report from Dr R dated 3 July 2007:
This is to certify that I have today examined:
Mr Hadley
Para-phrasing the psychiatrist’s report, Dr C has said that
Mr Hadley has a bitter disaffection, anxious over arousal and irritability coupled with social isolation and early deprivation.
I believe Mr Hadley still has significant mental illness made worse by his marital, legal and financial situation.
As his doctor, I believe he is incapable of work and earning a living and is quite restricted in his ability to be retrained due to the above psychiatric illness and possible altered intelligence affected by the above symptoms. His medication is also a contributing factor with drowsiness.
The report from Dr C, Psychiatrist dated 13 February 2007 (referred to by Dr R) was faxed to the SSAT during the hearing.
Under the heading Early Diagnostic Impression and Recommendation for Ongoing Management, Dr C reports:
I think Mr Hadley’s recent symptomatology of bitter disaffection and anxious over arousal is understandable as an adjustment reaction (to rejection by his wife) with exaggeration of maladaptive characterological tendencies that in turn have their root in early deprivation. His social isolation, volatility and limited vocational skills and the perils of the legal realm are likely to perpetuate his misery.
Mr Hadley is likely to find serotinergic anti-depressive medication of some benefit in reducing anxious over arousal and irritability but the mainstay of his treatment will need to be supported and focused on encouraging him to contain his anger towards his wife, reserve a foundation for ongoing relationship with his children and work constructively towards a fresh start for himself away from his ex.
I have endorsed Mr Hadley’s access to sickness benefits as a temporising aid and suggested he stick with Fluoxatine at a dose of 40 to 60ng for the next couple of months. If his depressive symptoms intensify, despite this, I would consider a trial of Notazappine as the next step medication- wise.
I would encourage Mr Hadley to begin scheduling regular activities (such as exercise and maintenance task about his parents’ home), to improve his general fitness and maintain a healthy diurnal rhythm of exertion and rest. I would also direct him to support groups like ‘Dads in Distress’ who might provide him with some strategies and social resources to address his problems with access to his children and financial assets.
The Tribunal accepted that the applicant has had issues with anxiety and depression on occasions (paragraph 72 of the reasons).
The SSAT was of the view that greater weight should be given to
Dr C’s assessment (given his expertise which would indicate that the sickness benefits were not endorsed due to Mr Hadley’s total incapacity for employment, but rather as a ‘temporising aid’). Mr Hadley indicated to him that he thought he could train towards a new occupation. There was no indication from Dr C that Mr Hadley could not remain in the occupation in which he has engaged for many years. In the circumstances the Tribunal prefers Dr C’s assessment.What emerges from Dr C’s report is that:
a)the applicant increasingly tired of hard manual work…made the decision when his marriage dissolved, to disband his business (as a plant/bobcat operator) and sold his machinery to settle some debts;
b)the doctor endorsed Mr Hadley’s access to sickness benefits as a temporising aid.
Just on a reading of the doctors’ reports (which was all that was available to the SSAT), if there was a difference between the doctors, it was about the length of time that the applicant was incapacitated for work due to his health.
The doctors seem to agree about the diagnosis and the treatment and that the applicant should receive sickness benefits. Dr C felt that the benefits were a temporising aid. Dr R at least, in his first report, considered that the applicant may be incapacitated for up to
12 months. It is not clear from Dr R’s second report what his view about recovery was but it does seem that his prognosis was more pessimistic.
The SSAT found that the applicant’s cessation of work was not justified on medical grounds. Given the reasons given to Dr C by the applicant for his cessation of the business (referred to in the report of Dr C) that finding was open on the evidence in relation to the cessation of the family business in 2005.
The SSAT found, after accepting Dr C’s report, that the report does not indicate the Mr Hadley is incapacitated for employment. Whilst I agree the report does not indicate that the applicant does not have total incapacity for employment, nevertheless, the report indicates that he was not capable of employment for an undetermined time.
It is important to remember that the review was for the child support period commencing 1 January 2007 until 31 December 2007 and then the assessment of the period from 1 January 2008 until 30 June 2008.
Although the respondent was seeking a continuous assessment the SSAT did not determine the level of child support beyond 30 June 2008.
It seems to be accepted that the SSAT needed to address the provisions of s.117(7B) for the relevant child support period.
Having regard to the provisions of s.117(7B) of the Assessment Act the Court (and in this case the SSAT) relevantly may determine that the parent’s earning capacity is greater than is reflected in his or her income for the purposes of this Act only if the Court is satisfied that:
a. …
i.The parent does not work despite ample opportunity to do so.
b.The parent decision not to work……is not justified on the basis of:
….
ii.The parent’s state of health; and
c.The parent has not demonstrated that it was not a major purpose of that decision to effect the administrative assessment of child support in relation to the child.
In my consideration, the relevant decision that needed to be considered was the decision made by the applicant not to work during the relevant child support assessment period.
Relevantly, in this matter, based on the evidence before the SSAT, I consider that the SSAT were entitled to be satisfied that:
a)the applicant did not work and that he:
i)did not have any constraints on his time that prevented him from employment;
ii)had the skills necessary to undertake employment;
iii)had worked for many years up until December 2005 and had, in the past, shown a capacity and propensity for work;
and would therefore have had ample opportunity to work;
b)it is difficult to see, though, how the applicant’s decision not to work at least for part of the relevant child support period was not justified on the basis of his state of health. In order to be satisfied that his decision not to work in 2007 and 2008 was not justified on the basis of his state of health, the SSAT had to reject entirely the evidence of both Drs C and R. The SSAT, though, accepted the evidence of Dr C and the effect of his evidence that as a temporising aid the applicant should be placed on sickness benefits. The only question unanswered in the report of Dr C was how long the applicant should be on sickness benefits.
I do consider that the SSAT fell into error in this matter and that the error amounts to an error of law for the following reasons:
a)The SSAT preferred Dr C’s assessment but the unchallenged evidence of Dr C was that for at least part of the relevant child support period in 2007, the health of the applicant did not allow him to work.
b)The SSAT seemed to place weight on the fact that the sickness benefits were not endorsed due to Mr Hadley’s total incapacity of employment, but rather as a temporising aid (paragraph 73 of the reasons) but it was never the question before the SSAT as to whether the applicant had total incapacity of employment. The essential question before the SSAT was whether the applicant’s decision not to work during the relevant child support period under review was justified on his state of health. It was never clarified with Dr C as to how long the applicant may need to be on sickness benefits.
c)Whilst the SSAT was entitled to consider and give some weight to the reason behind the decision of the applicant to cease his business and to the findings made by FM Jarrett, the decision to cease the business and the findings of FM Jarrett were made before the relevant child support period under review and were not directly relevant to the state of the applicant’s health in 2007 and 2008.
d)Given the acceptance by the SSAT of the evidence of Dr C which at least in part support the case of the applicant that he could not work due to his state of health during the relevant child support period, I consider that the SSAT has misdirected themselves as to the relevant considerations in this matter.
I consider that the decision made by the SSAT for the 2007 child support year should be set aside.
The only evidence before the SSAT about the state of the applicant’s health in 2008 was that of Dr R. Dr R had considered in his first report that it may be many months or up to a year before the applicant could return to employment. Dr C had not given any opinion as to how long the applicant may need to be on sickness benefits.
Ultimately I am persuaded to set aside the decision of the child support period from 1 January 2008 until 30 June 2008 for the following reasons:
a)I do consider that the SSAT erred in the manner that it dealt with the 2007 child support period in that it misdirected itself as to the relevant considerations.
b)As a consequence, I cannot be satisfied that the SSAT did not do the same in relation to its considerations for the 2008 child support period.
c)Although onus was upon the applicant to provide the necessary evidence about his lack of capacity to work due to his state of health in 2008 and the lack of evidence about his state of health in 2008 may have resulted in the same outcome, he did produce a report from Dr R that, prima facie, indicated health problems in 2008. There was no evidence from Dr C as to how long the applicant may have been incapacitated.
For the reasons I have given, I consider that Grounds 3 and 4 of the Notice of Appeal are made out. I do not consider it necessary to consider the other grounds of Appeal.
This is a matter where I consider the applications should be remitted to the SSAT to be decided again by a differently constituted Tribunal.
There is insufficient evidence about the state of health of the husband (in particular the length of his incapacity) for me to re-exercise the discretion.
It is appropriate in my view for the matter to be reheard in the SSAT because the matter is likely to be less costly and to have a quicker determination than might be available in this Court.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Slack FM
Associate: Karen Smith
Date: 24 December 2008
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