Hellier & Josey & Anor (SSAT Appeal)
[2015] FCCA 2107
•6 August 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HELLIER & JOSEY & ANOR (SSAT APPEAL) | [2015] FCCA 2107 |
| Catchwords: CHILD SUPPORT – SSAT Appeal – first respondent seeking leave to appeal from a decision of Social Security Appeals Tribunal – whether the first respondent should be granted leave to appeal out of time – consideration of factors relevant to determining whether an extension of time for filing an appeal from the Social Security Appeals Tribunal shall be granted – LEAVE REFUSED. |
| Legislation: Child Support (Registration and Collection) Act 1988, ss.103N, 103T(1), 110C(1) Child Support (Assessment) Act 1989, s.98H(1) Federal Circuit Court Rules 2001, rr.3.05, 25A.06(2) |
| Gallo v Dawson (1990) 64 ALJR 458 Clivery & Conway [2007] FamCA 1435 Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 Bagley & Bagley (SSAT Appeal) [2010] FMCAfam 215 Trejo & Walker & Anor (SSAT Appeal) [2010] FMCAfam 1393 Rafter & Rafter [2011] FamCAFC 46 Tan & Tan (SSAT Appeal) and Tan & Child Support Registrar & Anor [2013] FCCA 123 Victor & Duncan & Anor (SSAT Appeal) [2015] FCCA 1073 |
| Appellant: | MR HELLIER |
| First Respondent: | MS JOSEY |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | MLC 9586 of 2014 |
| Judgment of: | Judge Bender |
| Hearing date: | 22 May 2015 |
| Date of Last Submission: | 22 May 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 6 August 2015 |
REPRESENTATION
| Counsel for the Appellant: | In Person |
| Solicitors for the Appellant: | In Person |
| Counsel for the First Respondent: | In Person |
| Solicitors for the First Respondent: | In Person |
| Counsel for the Second Respondent: | Ms Scarlett |
| Solicitors for the Second Respondent: | Australian Government Solicitor |
ORDERS
The Appeal of the Appellant of 15 October 2014 is dismissed.
The Application of the First Respondent for leave to appeal the decision of the Social Security Appeals Tribunal of 29 August 2014 out of time is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Hellier & Josey & Anor (SSAT Appeal) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 9586 of 2014
| MR HELLIER |
Appellant
And
| MS JOSEY |
First Respondent
| CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This matter relates to appeals by both the Appellant and First Respondent from a decision of the Social Security Appeals Tribunal (“SSAT”) made 29 August 2014 relating to the child support payable by the First Respondent.
The Appellant and First Respondent are the parents of
Xborn (omitted) 2009 (“X”).
The Appellant and First Respondent were in a brief relationship from February 2009 to July 2009 at which time they separated acrimoniously.
When X was born he remained in the primary care of the First Respondent.
In July 2013, X was placed in the primary care of the Appellant and has remained in his primary care since that date.
The Appellant and First Respondent’s post separation relationship has been highly acrimonious. They have been engaged in almost continuous litigation in this Court and the State Courts.
The question of child support has also been an area of dispute between the parties with there having been a previous appeal to this Court from an SSAT decision.
The Appeal of the Appellant
In the Notice of Appeal filed by the Appellant on 15 October 2014 he seeks the following orders:
1. The decision of the Social Security Appeals Tribunal dated
29 August 2014, posted 11 September 2014 and received by the Appellant 17 September 2014 be dismissed
2. The First Respondent provide copies of Tax Returns for the financial years ending 2010, 2011, 2012, 2013 and 2014
3. The First Respondent provide copies of all bank statements of all accounts held individually or jointly, in the name of the First Respondent or other names used by the First Respondent for the financial years ending 2010, 2011, 2012, 2013, 2014 and from 1 July 2014 until now.
4. The adjusted taxable income of the First Respondent for child support be set out at $104,000 from 17 July 2013
The Appellant relies on the following grounds of appeal:
1. The Social Security Appeals Tribunal denied the Appellant procedural fairness and natural justice by making its decision without having considered the financial documents which it directed by paragraphs 1.6 of its Pre Hearing Directions dated the 13th June 2014 that the First Respondent supply to it with which directions the First Respondent did not comply.
2. The Social Security Appeals Tribunal denied the Appellant procedural fairness and natural justice by not giving the Appellant the opportunity to make submissions on the financial documents which it directed by paragraphs 1.6 of its Pre Hearing Directions dated the 13th June 2014 that the First Respondent supply to it with which directions the First Respondent did not comply.
3. The Social Security Appeals Tribunal denied the Appellant procedural fairness and natural justice by only supplying copies of documents of the First Respondent the evening prior to the hearing to the Appellant which did not allow the Appellant to prepare fully for the hearing the following morning.
4. The Social Security Appeals Tribunal denied the Appellant procedural fairness and natural justice by making its decision without having considered the financial documents which it directed by paragraphs 1.6 and 1.7 of its Pre Hearing Directions made the 7th February 2012 and dated the 8th February 2012 that the First Respondent did not supply to it with which directions the First Respondent did not comply. Without which the income capacity of the First Respondent could not be determined from historical financial income.
5. There has been substantial change to the costs of the Appellant and Firs0074 Respondent since the Social Security Appeals Tribunal hearing.
Child Support History
The SSAT set out the background to this matter in its Reasons for Decision as follows:
6. On 12 November 2013 Mr Hellier lodged a change of assessment application on the ground that Ms Josey’s income assets and resources were not accurately reflected by the administrative assessment and because he believed that she had the capacity to earn more. Ms Josey in her response also sought a departure to the administrative assessment on the ground that Mr Hellier’s income assets and resources were not accurately reflected in the assessment.
7. At the time of the application Ms Josey was assessed to pay Mr Hellier $391.00 per annum based on an estimated income of $14,469.00 lodged on 15 November 2013 and a Nil income for Mr Hellier.
8. Both parties’ applications were disallowed by the senior case officer. Both parties objected and were unsuccessful in their objections leading to Mr Hellier lodging his application for review with the Tribunal on 23 April 2014.
9. The application was listed for a hearing on 1 August 2014 and was then adjourned for 28 days for the Tribunal to consider its decision.
A directions hearing was conducted by telephone on 13 June 2014 at which time the application for review was fixed for hearing. The Appellant was directed to provide to the SSAT by 11 July 2014 the following documents:
·copy of the enrolment forms for attendance at any educational institution he is attending;
·personal tax returns, including any schedules for 2012/2013 financial year;
·three recent Centrelink notice rates;
·all bank statements and credit card statements in his name, any business name he operates under including but not limited to (business omitted), and/or any joint account held with another person or entity from 1 July 2013 to date;
·financial records for the business (business omitted), including balance sheets, profit and loss statements for 2012/2013 and 2013/2014;
·business activity statement for (business omitted) from 1 July 2013 to date; and
·any other evidence the party wishes to bring before the SSAT.
The First Respondent was directed to provide the SSAT by
11 July 2014 the following documents:
·completed statement of financial circumstances;
·rates notice for any real estate properties in which she has an interest and/or a current tenancy agreement;
·personal tax returns, including any schedules for 2012/2013;
·three recent Centrelink rates notices;
·all bank statements and credit card statements in her name, in any business name under which she operates including but not limited to (business omitted) and (business omitted), and/or any joint account held with another person or entity from 1 July 2013 to date;
·
financial records for any business operated by her for the period
1 July 2013 to date, including balance sheets, profit and loss statements; and
·any other evidence the party wishes to bring before the SSAT.
The Appellant provided the documents to the SSAT as directed but wrote to the SSAT objecting to them being released to the First Respondent.
On 29 July 2014, two days prior to the hearing, the First Respondent provided the SSAT with copies of bank statements from an account with (omitted) Bank, an online statement showing she was the recipient of a Newstart Allowance and a Financial Statement. The SSAT immediately forwarded copies of those documents to the Appellant.
The bank statements provided by the First Respondent showed no record of any payments from Centrelink. The First Respondent admitted to the SSAT she had another account which she referred to as her “ethical account”. The First Respondent did not provide the SSAT with statements from her “ethical account”.
The First Respondent advised the Department that she had not
worked since March 2013 and records before the Department at that time refer to the First Respondent receiving a termination payment on 15 March 2013.
The Appellant provided the SSAT with a page of a transcript from a hearing before the Federal Circuit Court dated 15 July 2013 in which the First Respondent sought $200 costs for that day from the Appellant for loss of wages as a (occupation omitted) with (omitted business). The First Respondent told the SSAT this had been her first day of work and she was fired for not attending.
In paragraphs 28-31 of the Reasons for Decision the SSAT states:
28. Mr Hellier was again invited to commence his submission and again Ms Josey began screaming over the top of him at which time the Presiding Member advised Ms Josey that she would no longer be taking part in the proceedings and terminated her phone connection. The remainder of the hearing proceeded without Ms Josey’s involvement.
29. It was Mr Hellier’s case that Ms Josey worked for various organisations and was paid under the alias Ms K as well as the first name Ms M. Mr Hellier submitted that Ms Josey had the capacity to earn $140,000.00 per year.
30. Mr Hellier referred to the transcript from the Federal Circuit Court previously referred to which at the end recorded Ms Josey telling the Court that her status as a self-declared employee only changed a few months before. From this Mr Hellier submitted that Ms Josey was not telling the truth when she said she had commenced work with (employer omitted) on the day of the Court.
31. Mr Hellier had no other evidence to support that Ms Josey was working or that she had the capacity to do so.
At the hearing the Appellant continued his objection to the release of his bank statements to the First Respondent. The SSAT advised that the SSAT could not consider his documents if he continued to object to their release to the First Respondent and that the SSAT was entitled to draw an adverse inference in respect to his failure to provide them. The Appellant still continued his objection to the release of the documents.
The Tribunal’s Decision
The SSAT’s decision was set out in paragraphs 49-53 and 59 as follows:
49. In the circumstances the Tribunal is not of the view that either party presented sufficient evidence to convince the Tribunal that there are any special circumstances that warrants the departure from the administrative assessment.
50. As referred to above the Tribunal has no obligation to seek further information than that provided by the parties in making a decision and the Tribunal believes that it would be inappropriate to do so in a situation where one party is seeking to exclude documents directed to be produced to the Tribunal whilst the other party from their evidence had failed to produce the documents they were directed to produce.
51. There is no conclusive evidence that Ms Josey is working. There is evidence from her bank statements that she is receiving more from Centrelink but it is unclear where that is coming from.
52. If she is receiving assistance from her sister, as Mr Hellier indicated has occurred from the past, there is no evidence of the level of assistance or whether there is income from any other source. The lack of information means the Tribunal is unable to determine if her income is materially greater than the amount accepted by the Department or whether it would affect the assessment.
53. In respect to Ms Josey’s capacity to work, there is insufficient evidence available to the Tribunal of Ms Josey giving up, reducing or altering any employment for the Tribunal to find that has occurred. There is evidence that Ms Josey has a mental disorder although the Tribunal has no means of knowing if it prevents her from working and to what extent.
…
59. The decision under review is affirmed.
Ground 1: The Social Security Appeals Tribunal denied the Appellant procedural fairness and natural justice by making its decision without having considered the financial documents which it directed by paragraphs 1.6 of its Pre Hearing Directions dated the 13th June 2014 that the First Respondent supply to it with which directions the First Respondent did not comply.
It is my understanding of the Appellant’s submission in relation to this ground that he argues the SSAT erred in accepting the First Respondent’s evidence as to her income given her failure to provide all the documents as directed by the SSAT.
It is unclear whether the Applicant is arguing the SSAT had an obligation to obtain further information and make further enquiries into the First Respondent’s financial circumstances beyond the evidence she had provided or the SSAT should have drawn an adverse inference against the First Respondent because of her failure to produce the documents as directed.
In Victor & Duncan & Anor (SSAT Appeal) [2015] FCCA 1073 Judge Scarlett considered the question of whether the SSAT has a duty to seek further information. At paragraphs 109-114 his Honour sets out the relevant law as follows:
109. The High Court considered the question of a duty to inquire in Minister for Immigration and Citizenship v SZIAI, where their Honours said at [24] and [25]:
24. Mason CJ and Deane J in Teoh also rejected the proposition that a failure by a decision-maker to initiate inquiries could constitute a departure from common law standards of natural justice or procedural fairness. It is difficult to see any basis upon which a failure to inquire could constitute a breach of the requirements of procedural fairness at common law…
25. Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to a reference to a “duty to inquire”, that term is apt to a direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error … It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure to make such an inquiry results in a decision being affected in some other way that manifests itself as a jurisdictional error…
110. Section 103N of the Child Support (Registration and Collection) Act 1988 provides that:
(1) The SSAT, in reviewing a decision under this Part:
(a) is not bound by legal technicalities, legal forms or rules of evidence; and
(b) is to act as speedily as a proper consideration of the review allows.
(2) The SSAT may inform itself on any matter relevant to a review of a decision in any manner it considers appropriate.
111. … there is no obligation on the Tribunal to inquire in s. 103N.
112. Subsection 98H(1) of the Assessment Act provides that:
In making a decision under this Division in relation to an application, the Registrar:
(a) may act on the basis of:
(i) the application and the documents accompanying it; and
(ii) ( irrelevant)
(b) may, but is not required to, conduct any inquiry or investigation into the matter.
113. Subsection 103T(1) of the Registration and Collection Act provides that:
Subject to the regulations, the SSAT may, for the purpose of reviewing a decision under this Part, exercise all the powers and discretions that are conferred by this Act and the Assessment Act on the Registrar.
114. Thus, it can be seen that there is no general obligation on the Tribunal to make inquiry under either the Assessment Act or the Registration and Collection Act.
As it can be seen, the SSAT has no obligation to seek further information than that provided by the parties.
In Tan & Tan (SSAT Appeal) and Tan & Child Support Registrar & Anor [2013] FCCA 123 Judge Riethmuller dealt with the issue of a party’s failure to produce documents. His Honour held at paragraph 22:
…the applicant would have been hopeful that the tribunal would draw an adverse inference against the second respondent with respect to her evidence as to the costs of children given the lack of corroborative material and the failure to attend and give evidence before the tribunal. It is certainly open to a tribunal or a court to draw such an inference as a matter of law. However, an often overlooked aspect of this area of the law is that a tribunal or court is not required to draw an adverse inference. The failure of the second respondent to provide more information or to attend is a relevant part of the considerations in determining the factual question, but did not require the tribunal to determine it adversely to her.
In this matter the SSAT was under no obligation to seek further information from the First Respondent nor was it under any obligation to draw an adverse inference against the First Respondent for her failure to produce all the documents required by the SSAT.
The SSAT clearly considered the First Respondent’s failure to produce documents, as it did the exclusion of the documents produced by the Appellant because of his objection to them being made available to the First Respondent and formed the view it would it would be inappropriate to seek further information from either party.
The SSAT having considered all the material before it from both parties made a finding, which I am satisfied was open to it on the facts, that neither party presented sufficient evidence of there being any special circumstances that warranted a departure from the administrative assessment.
Therefore Ground 1 does not establish any error of law on the part of the SSAT and is dismissed.
Ground 2: The Social Security Appeals Tribunal denied the Appellant procedural fairness and natural justice by not giving the Appellant the opportunity to make submissions on the financial documents which it directed by paragraphs 1.6 of its Pre Hearing Directions dated the 13th June 2014 that the First Respondent supply to it with which directions the First Respondent did not comply.
As was succinctly put in the written submissions filed by the Child Support Registrar on 8 April 2015, the Applicant was accorded an opportunity to address and be heard by the SSAT as to the First Respondent’s financial circumstances in accordance with its obligations under section 103C of the Child Support (Registration and Collection) Act 1988.
If the Appellant’s complaint is not actually about being given an opportunity to make submissions to the SSAT, but is again a complaint about the First Respondent’s failure to produce documents, then as was set out in paragraphs 21-29 of this judgment, the SSAT made no error of law in this regard.
Ground 2 does not establish any error of law on the part of the SSAT and is therefore dismissed.
Ground 3: The Social Security Appeals Tribunal denied the Appellant procedural fairness and natural justice by only supplying copies of documents of the First Respondent the evening prior to the hearing to the Appellant which did not allow the Appellant to prepare fully for the hearing the following morning.
The First Respondent did not provide the SSAT with her documents until 29 July 2014. Immediately upon their receipt, the SSAT forwarded them to the Appellant. This late receipt of the documents by the Appellant does not constitute a lack of procedural fairness by the SSAT.
If the Appellant felt genuinely disadvantaged by the late receipt of the First Respondent’s material, he could have sought an adjournment of the hearing to enable him more time to consider the material and to properly prepare. He made no such application to the SSAT.
Ground 3 does not establish any error of on the part of the SSAT and is therefore dismissed.
Ground 4: The Social Security Appeals Tribunal denied the Appellant procedural fairness and natural justice by making its decision without having considered the financial documents which it directed by paragraphs 1.6 and 1.7 of its Pre Hearing Directions made the
7th February 2012 and dated the 8th February 2012 that the First Respondent did not supply to it with which directions the First Respondent did not comply. Without which the income capacity of the First Respondent could not be determined from historical financial income.
It is the Appellant’s submission under this ground that the SSAT needed to consider the First Respondent’s financial circumstances prior to X coming into his care to determine the review as this evidence would have shown the First Respondent’s income earning capacity and supported the Appellant’s long standing allegations that the First Respondent has consistently under represented her financial circumstances.
In relation to the First Respondent’s income prior to X coming into the Appellant’s care, the SSAT noted in paragraph 2 of its Reasons for Decision:
The parties have previously been before the Tribunal on
21 June 2012 at which time the Tribunal set Mr Hellier’s income at $75,000.00 for the period 9 May 2011 to 8 May 2013 and Ms Josey’s income at $28,000.00 for the period 9 May 2011 to 30 September 2011 and $26,000.00 for the period 1 October 2011 to 8 May 2013.
The Appellant appealed the decision made by the SSAT in June 2012. Ground 3 of the grounds of appeal of the Appellant in relation to this appeal was that the First Respondent had failed to provide all documents requested by the SSAT (and therefore presumably their determination of her income as set out in paragraph 37 herein was incorrect).
Judge Riethmuller dismissed the Appellant’s Appeal from the decision of the SSAT of 21 June 2012. In relation to Ground 3 of the Appeal, Judge Riethmuller having considered those aspects of the SSAT’s Reasons for Decision that went to the First Respondent’s income and failure to provide documents, held at paragraph 36 as follows:
36. The Tribunal has clearly turned its mind to the finances of the first respondent. It had various key documents before it. The Tribunal is not required to record every aspect of the proceedings before it. Given the documents that the Tribunal has referred to I am not persuaded that this is an issue of such significance that it required specific mention in the Tribunal’s reasons, at least in the context of the claims in this case.
The Appellant cannot re-agitate his complaint as to the First Respondent’s failure to provide documents in 2012 in the context of this appeal.
Further and as noted in this judgment, the SSAT is under no obligation to seek any further information than that provided by the parties when making its determination. As is set out in paragraphs 21-28 of this judgment, the decision of the SSAT was open to it on the material that was before it.
Ground 4 does not establish any error of law on the part of the SSAT and is therefore dismissed.
Ground 5: There has been substantial change to the costs of the Appellant and First Respondent since the Social Security Appeals Tribunal hearing.
This ground refers to some alleged and unspecified change of factual circumstances following the SSAT hearing.
If there has been a substantial change in the parties’ circumstances following the SSAT hearing, this is not a matter for appeal as it raises no question of law. It should be pursued by the Appellant through the normal review procedures within the Child Support Agency.
Ground 5 does not establish any error of law on the part of the SSAT and is therefore dismissed.
Conclusion
Given the findings on all grounds of appeal, the Appellant’s appeal filed 15 October 2014 is dismissed.
The Appeal of the First Respondent
The First Respondent filed a Notice of Appeal on 18 November 2014 against the decision of the SSAT of 29 August 2014 which was dispatched 11 September 2014.
Section 110C(1) of the Child Support (Registration and Collection) Act 1988 provides that any appeal to a Court from a decision of the SSAT must be commenced in that Court in the time prescribed by that Court’s rules or any extension of time that the Court’s rules allow.
Rule 25A.06(2) of the Federal Circuit Court Rules 2001 (“the Rules”) provides as follows:
Time Limits
(2) A person must file an appeal from a decision of the
SSAT within 28 days of receiving a written statement
of reasons for the decision under subsection 103X(3) or (5) of the Registration Act.
Rules 3.05(1) and (3) provide:
Extension or shortening of time fixed
(1) The Court may extend or shorten a time fixed by these Rules or by a judgment, decree or order;
…
(3) The time fixed may be extended even if the time fixed has passed.
As the First Respondent’s Appeal has been filed out of time, the First Respondent made an oral application at the time of the hearing of this matter for leave to appeal out of time.
The question of whether to grant leave to appeal out of time is a discretionary one for the Court.
The principles applicable in the exercise by the Court of its discretion to grant leave to appeal out of time are well established. In the matters of Bagley & Bagley (SSAT Appeal) [2010] FMCAfam 215 and Trejo & Walker & Anor (SSAT Appeal) [2010] FMCAfam 1393 their Honours Federal Magistrates Terry and Sexton, when considering the question of leave to appeal out of time from a decision of the SSAT, cited with approval the High Court decision of Gallo v Dawson (1990) 64 ALJR 458 where his Honour Justice McHugh held:
The discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties…
This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time.
In Rafter & Rafter [2011] FamCAFC 46 the Full Court of the Family Court in dealing with a question for leave to appeal out of time stated at paragraph 10:
In Clivery & Conway [2007] FamCA 1435 the well-known principles referable to such leave applications were discussed:
The principles emerging from Gallo v Dawson may be summarised as follows:
· The grant of an extension of time is not automatic.
· The object is to ensure that Rules which fix times do not become instruments of injustice.
· Since the discretion to extend the time is given for the sole purpose of enabling the Court to do justice between the parties, the discretion can only be exercised upon proof that strict compliance with the Rules will work an injustice upon the applicant.
· When determining whether the Rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time.
· When considering an application for extension of time in which to file an appeal or an application, it is necessary also to consider the prospects of success of that appeal or application.
I will look briefly at the matters to be considered in determining whether an extension of time should be granted to the First Respondent to appeal.
The History of the Proceedings
The history of the proceedings has been set out in this judgment.
Conduct of the Parties
The First Respondent filed her Notice of Appeal in response to the Appeal lodged by the Appellant and in circumstances where she actually agrees with the decision made.
When addressing the Court on the question of leave to appeal the First Respondent said:
I was not planning on appealing because I believe that the decision was correct.
Grounds of Appeal
In the Notice of Appeal filed 18 November 2015 the grounds of appeal are as follows:
1. The Tribunal’s most recent decision is attended by error and should be dismissed for the following reasons:
i. Section 4(1) of the Act states that the principal object of the Act is to ensure that children receive a proper level of financial support from their parents. By ignoring the CSA’s findings that the respondent is indeed working in the same business that he has operated in excess of ten years, they have enabled the respondent to claim maximum sole parenting payments on the grounds that he is “unemployed”. Zero income for tax purposes does not mean that the respondent is unemployed.
ii. The respondent’s inaccurate ability to reflect a zero income would enable him to continue to fraudulently claim government welfare payments and benefits that would he would not normally be entitled to if he was a PAYG employee earning such a significantly high income.
2. The Tribunal’s most recent decision that the respondent has zero income is founded on procedural unfairness to the appellant and should be dismissed for the following reasons:
i. The respondent’s conduct in the application was manipulative. The respondent has been warned by the Federal Court only many occasions not to attempt to discredit my character by providing findings from one court to try to influence findings in another. The respondent has continued to do so, in the full knowledge that this behaviour is taunting and extremely distressing to me. The findings of The Family Court have no bearing whatsoever on investigations into the true earning capacity of either parent. Nor does percentage of care. The Tribunal therefore took into account matters that were not relevant to the making of the determination of the administrative assessment of the respondent.
ii. The Tribunal correctly applied its decision upon the applicant’s current unemployed status. However failed to acknowledge that at such time that I return to employment, I will immediately be adversely affected for the following reasons:
1. The respondent’s inaccurate reflection of a zero income would place me at a higher rate of child support than he is entitled to receive. This inaccurate reflection would literally make it unaffordable for me to return to employment and would force me to remain unemployed.
2. The tribunal’s failure to acknowledge that I have a responsibility to maintain two children from a prior relationship (and therefore establish a multi-case allowance) would further adversely affect me. This further makes it financially impossible for me to return to employment. According to 3(2)(a) of the Act, my duty to maintain children from a prior relationship does not have a lower priority than my duty to maintain X and this should be reflected in the assessment.
The First Respondent’s appeal is wholly directed at what she believes is the SSAT’s finding that the Appellant has a nil income and the impact that may have in the event she should, at some time in the future, gain employment and be assessed to pay child support above the minimum level.
The SSAT, whilst noting the Appellant claimed he had a nil income, actually made no findings as to what the Appellant’s income is.
In paragraph 56 of the Reasons for Decision the SSAT states:
As the Tribunal is not inclined to interfere with the administrative assessment and therefore Ms Josey’s income remains below the self support amount, what Mr Hellier earns has no impact on the assessment.
In these circumstances I am of the view that the First Respondent’s Appeal is without merit.
Prejudice
Given the dismissal of the Appellant’s Appeal and the existing decision that the First Respondent’s income is below the self support amount, neither party is prejudiced if the First Respondent is not granted leave to appeal.
Conclusion
In all these circumstances, the First Respondent is not granted leave to appeal the decision of the SSAT of 29 August 2014.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge Bender
Associate:
Date: 6 August 2015
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