Heyden & Heyden (SSAT Appeal)
[2009] FMCAfam 489
•1 June 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HEYDEN & HEYDEN (SSAT APPEAL) | [2009] FMCAfam 489 |
| CHILD SUPPORT – Appeal from decision of SSAT – error of law – whether determination of percentage of care amounted to error of law. |
| Child Support (Assessment) Act 1989, ss.34(c), 35, 48(1), 48(2), 49, 66(d), 75(2), 77, 80, 87(1) |
| Ouston Nominees No 2 Pty Ltd v Branie Pty Ltd (2003) 129 FCR 558 Fitzgerald v Masters (1956) 95 CLR 420 |
| Applicant: | DR HEYDEN |
| Respondent: | MR HEYDEN |
| File Number: | NCC 3128 of 2008 |
| Judgment of: | Slack FM |
| Hearing date: | 1 May 2009 |
| Date of Last Submission: | 1 May 2009 |
| Delivered at: | Brisbane |
| Delivered on: | 1 June 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Bateman |
| Solicitors for the Applicant: | Rice More & Gibson Solicitors |
The Respondent appeared on his own behalf.
ORDERS
That the Appeal from the decision of the SSAT dated 7 November 2008 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Heyden & Heyden is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
NCC 3128 of 2008
| DR HEYDEN |
Applicant
And
| MR HEYDEN |
Respondent
REASONS FOR JUDGMENT
In this appeal from the decision of the Social Security Appeals Tribunal (hereafter “the SSAT”) dated 7 November 2008, there are six grounds of appeal in the Amended Notice of Appeal.
The decision
The decision of the SSAT was to set aside the decision under review and substitute a new decision that the percentage of care for the children [X] and [Y] under an administrative assessment is 86% for Dr Heyden and 14% for Mr Heyden from 1 July 2008.
The scheme of the Act
The quantum of child support payable by a parent arises from the operation of s.77 of the Child Support (Assessment) Act 1989 (hereafter the “Assessment Act”).
It is the Notice of Assessment that determines the amount of the daily rate of child support payable by a liable parent.
Having regard to s.75(2) of the Assessment Act, the Registrar must not amend an administrative assessment unless relevantly, a person’s percentage of care increases to 14% or above 14%.
“Percentage of care”
The relevance of the determination by the SSAT is that, pursuant to s.35 of the Assessment Act, in order to work out the annual rate of child support payable for a day in a child support period it is necessary to work out each parent’s percentage of care.
The calculation of percentage of care is to be worked out in accordance with sub-division (b) of Part 4 Division 4 [s.48(2) of the Assessment Act].
The note to s.48(2) of the Assessment Act indicates that a person’s percentage of care for a child is worked out based on the number of nights that the child is likely to be in the care of the person during the care period. There is nothing in the Act, however, that requires the Registrar to calculate percentage of care on the basis of nights.
In this matter, the Child Support Registrar (hereafter “the Registrar”) was to determine the percentage of care for the 12 month period commencing 1 July 2008.
Relevantly, having regard to s.49 of the Assessment Act, the percentage of care that a parent is likely to have during a care period, is determined by:
a)an oral agreement between the parents of the child that the Registrar is satisfied has been made; or
b)a Court order that relates to the parents or relates to the child.
if the Registrar is satisfied that the order allows such a percentage to be determined.
In this matter there was a Court order made on 30 June 2005 by Federal Magistrate Baumann and it does not appear to be in issue between the parties that the Registrar (and upon review, the SSAT) was entitled to have regard to the order to determine the percentage of care.
Decision and review process
Pursuant to s.34(c) of the Assessment Act, the Registrar must assess, under this Act, the annual rate of child support payable for a child for days in a child support period either before or as soon as practicable after the start of the period.
Under s.66(d) of the Assessment Act, the Registrar may act on the basis of the documents and information in his or her possession.
An objection may be made to a decision of the Registrar as to the particulars of an administrative assessment (s.80 of the Assessment Act).
The SSAT can review a decision made on the objection, pursuant to s.87(1) of the Assessment Act.
For the relevant child support period (commencing 1 July 2008), the Registrar made a decision on 10 April 2008 that the Respondent’s care percentage is nil (based on the fact the children spend less than 14% of their nights in his care).
The Respondent sought a change in care by letter dated 17 April 2008.
The Registrar made a change based on new information on 23 May 2008 and the Respondent’s care percentage was determined to be 14.25%.
The Applicant objected to that decision and her objection was upheld. The decision was that the assessment be changed to show that the children [X] and [Y] spend 321 nights in the care of Mrs Heyden and 44 nights per year in the care of Mr Heyden, the decision to be applied from 1 July 2008.
The Respondent appealed that decision to the SSAT.
The Parenting order
The relevant order applicable to the children is that of Federal Magistrate Baumann dated 30 June 2005 (hereafter “the orders”). Under the terms of those orders, the father was to have contact with the children at all times as agreed between the parties, but failing agreement [my emphasis], then in accordance with paragraph 5 of the orders.
There is a particular dispute about the interpretation of Order 5.2.
Grounds of appeal
In her Amended Notice of Appeal, the Applicant asserts that the following questions of law arose from the decision of the SSAT and that the SSAT fell into error in:
a)The interpretation of the provisions of s.48(1) of the Assessment Act in relation to determining each parent’s percentage care for each of the children for the period of 12 months from 1 July 2008.
b)The SSAT’s interpretation of the provisions of Order 5.2 of the orders made in the Federal Magistrates Court of Australia in Brisbane on 30 June 2005.
c)The SSAT’s evaluation of the evidence given by the father and the mother respectively in relation to the events of July 2008 surrounding the arrangements for the children to spend time with the father.
d)The SSAT’s conclusion (at para 23 on page 4 of the Decision of the SSAT):
The Tribunal therefore concludes that there was an agreement between the parties that Mr Heyden would have care of the children for 14 nights in July 2008 on the basis of the evidence of the father and the mother respectively.
e)
In the SSAT’s conclusion that for the 12 months from 1 July 2008 the father is likely to have a percentage of care for each of the children in excess of 14% for the period of 12 months from
1 July 2008on the basis of evidence of the father and mother.
f)In the SSAT’s calculation of when, according to the evidence of gazetted school holidays in Queensland, the end of the 2008/2009 school holidays concluded in January 2009.
g)In the SSAT’s evaluation of the mother’s evidence at para 25 of the Decision of the SSAT.
In essence, the Applicant argues that the SSAT erred in law in respect of its considerations of two periods of time that the children were in the care of the Respondent, namely:
a)the taking into account that the father had the children in his care for 14 nights during July 2008;
b)the taking into account that the children were in the father’s care for 22 nights in January 2009.
Save for a dispute about the number of nights the children were in the care of their father in July 2008 (about which I will say more in the course of the reasons), there is otherwise no dispute that the children were in their father’s care for those particular periods.
The Applicant argues that the SSAT erred in law in respect of its taking into account one night that the children were not in the care of the Respondent in July 2008 and one night in April 2009 and that there was a miscalculation of the number of nights the father had the children in his care.
The July 2008 school holiday period – Grounds 7(a), (b), (c),(d) (e) of the Appeal
As I understand the submission, the Applicant argues the SSAT erred in law in taking into account the fact that the children were in the Respondent’s care for 14 nights in July 2008, because:
a)there was no order that provided for the father to have the children for that period;
b)there was no oral agreement between the parties for the father to have the children during that period (and the SSAT erred in law in finding that there was an agreement);
c)the mere fact that the children were in the care of the father was not a proper consideration, particularly as it was without the consent or agreement of the mother (and hence the SSAT erred in law and took into account an irrelevant consideration).
The Applicant challenges, in particular, the finding that there was an agreement that the Respondent would have care of the children for
14 nights in July 2008(para 23 of the Decision).
The following facts in relation to the July 2008 school holidays do not appear to be in dispute:
a)The orders do not provide for the father to have anything other than the first week of the July 2008 school holidays.
b)There was an agreement in March 2008 (the “March agreement”) that the children would stay with their father for an extra week in July 2008 as Dr Heyden would be overseas at that time.
c)That the Applicant had notified the Respondent via email that she withdrew from or terminated that agreement in June 2008.
d)That the father took the children to Warwick on 12 July 2008.
e)That the children were not collected by the Applicant or her son [Z].
f)That the children remained with the father for the following week and were collected by the Applicant later that week.
The Respondent does not seem to challenge the finding of the SSAT that the Applicant had been opposed to the Respondent having the additional week of care in July 2008.
At issue is whether the SSAT was entitled to reach a finding that there was an agreement between the parties that Mr Heyden would have the care of the children for 14 nights in July 2008 (see para 23 of the Decision).
The orders provide for the parties to reach agreements about the contact of the children with their father. In the event that no agreement is reached then it is clear that the particularised orders shall apply. There does not appear to be any dispute that the parties had reached an agreement in March 2008 that the children would spend two weeks with their father during the July school holidays because their mother was to be overseas. In June 2008, the Applicant, via email, indicated to the Respondent that she no longer agreed for the children to remain in the care of their father during the second week of the school holidays. There is nothing in the orders, though, that suggests that the Applicant could simply resile from an agreement unilaterally. There is no suggestion on the evidence that the Applicant withdrew from the March agreement for a reason associated with the best interests of the children. In fact she did not give a reason for resiling from the March agreement.
There is no doubt that an agreement can be terminated with the consent of the parties. An agreement to end or terminate an agreement can be expressed or inferred from conduct which manifests a clear intention to bring all obligations to an end (Fitzgerald v Masters (1956) 95 CLR 420).
In this matter, whilst it is clear that the Applicant wanted to bring the agreement about the July school holidays to an end, it is not clear that the Respondent ever manifested, either expressly or by his conduct, his acceptance that the March agreement was bought to an end. His email dated 26 June 2008 to the Applicant does not indicate an unequivocal acceptance of the end of the March agreement. Indeed the reason for the agreement in the first place was because the Applicant was to be overseas during the relevant period. The evidence of the Applicant to the SSAT was that the Respondent stated unequivocally that he would not be delivering the boys into [Z]’s care on - at the end of the specified contact period. The evidence of the fact that the Respondent had taken the boys to Warwick (the agreed collection point) does not, in my view, indicate that he accepted that the agreement was terminated.
I consider that the SSAT was entitled to reach a conclusion that there remained an agreement between the parties that the children would remain with their father for the July school holidays and the SSAT was entitled to reach the conclusion that it did as a matter of law and fact.
The Applicant asserts that the SSAT was not entitled to take into account that the children were in the actual care of their father for those nights in July. In view of my conclusion about the existence of an agreement, I do not consider it necessary to consider this Ground of Appeal. However, there does not appear to be any provision in the Assessment Act that directs the Registrar not to take time actually spent with a parent into account in determining the likely percentage of care.
Christmas school holidays – Grounds 7(f) and (g)
The Applicant further asserts the SSAT erred in law in taking into account the nights the children were in the care of the Respondent between 17 January and 24 January 2009 because the order was clear and unequivocal on its terms and did not provide for the father to have time with the children during that period. Further, there was no evidence of any oral agreement between the parties that the children ought to spend that time with him.
The relevant order provides as follows:
5. That the father have contact with the children at all times as agreed between the parties but failing agreement, as follows:
5.2 During the summer school holidays, from noon on the 2nd January until noon of the last Saturday of the Queensland school holidays (excluding pupil free days).
The Applicant contends that the order is clear and unequivocal. Relevantly, the Applicant submits that the proper interpretation of those orders, given that there was no dispute that there were pupil free days on the Wednesday 21 January, Thursday 22 January and Friday 23 January 2009, that the last Saturday of the holidays was 17 January 2009 and the children should have been returned on that day as was requested by the Applicant.
The Applicant also asserts that, given there was no agreement for the children to remain with their father, the SSAT erred in law in taking into account that the children remained in his care for those nights after 17 January 2009.
The orders made by Federal Magistrate Baumann were not made with the consent of the parties. Nevertheless, I accept that ordinarily where Court orders are sufficiently clear and that their meaning can be readily determined, the orders should be interpreted in accordance with that clear meaning without reference to extrinsic evidence.
I am not satisfied that the orders though are clear and unambiguous.
I accept that the words the last Saturday of the holidays can be interpreted, as the Applicant does, resulting in 17 January 2009 being the relevant return date. This interpretation relies upon the words excluding pupil fee days defining the last Saturday of the holidays. It is not clear to me that those words necessarily define the return date. The orders can also, in my consideration, be interpreted such that the last Saturday is the Saturday before the new school term commences (which in this instance was 24 January 2009).
In construing Court orders that appear to be ambiguous or are capable of more than one meaning, I consider that reference can be made to the reasons, the pleadings and if necessary, the evidence and how the case was conducted (see Ouston Nominees No 2 Pty Ltd v Branie Pty Ltd (2003) 129 FCR 558 @ 569 (Allsop J). In this instance no material from the hearing before FM Baumann or his reasons were put before the SSAT.
However, I consider that it would also be appropriate for the SSAT to consider how the parties have interpreted those orders and acted upon them in the past. It would not, though, be appropriate to consider the subjective intention of the parties or their legal representatives in the interpretation of the orders.
In relation to this, the finding of the SSAT was:
Consistent with this understanding, he (the Respondent) said that in each year he has had the children since the consent order has been in existence, he has returned the children on the last Saturday of the January holiday (after the mid week pupil free days). Dr Heyden did not deny Mr Heyden’s evidence but indicated she intended to enforce the terms of the consent order in future to reflect the construction submitted by Mr Serow.
There would appear to be no challenge to that finding.
In the light of the ambiguity of the orders, I consider that the SSAT was entitled to take into account the evidence of the parties as to how those orders had been applied in the past by the parties.
Whilst I can accept that the SSAT referred to an agreement between the parties (para 26 of the Decision), and there may have not been an agreement as such, but there was evidence about how the parties, as between themselves, applied the orders. I do not consider that the SSAT erred in the way that it approached this particular issue.
Miscalculation of nights
As a separately argued Ground of Appeal, it was submitted that the SSAT miscalculated the number of nights that the children spent with their father (in para 27 of the Decision). The Applicant submits that there was a miscalculation for the period in April 2009 and that the time spent with the father should have been seven nights and that there was a miscalculation of the nights in July 2008. There should only have been 13 taken into account.
Whilst the calculation of nights would appear to be the method adopted to determine the percentage, there is nothing in the Act that would indicate that the Registrar (or indeed the SSAT) is required to take into account only the number of nights.
It is not clear from the transcript that the SSAT was ever asked to rule on whether the children were returned on 18 July 2008 or 19 July 2008. The Respondent asserted that he had the kids for 14 nights (see ll 1-5 page 20 of the transcript). That fact does not seem to have been challenged during the hearing. The SSAT were entitled, on the evidence, to conclude that the Respondent had the children for 14 nights in July 2008.
There would appear to be no challenge to the finding that the Respondent had the children for seven nights in September 2008 and would have had them for 22 nights in January 2009.
Under the terms of the orders the Respondent was to have the children for the Easter long weekend from noon on Good Friday until noon of Easter Monday (Order 5.3) and for the Autumn school holidays for the second full week of the New South Wales school holidays to commence at noon on the second Saturday and to conclude by noon on the last Saturday.
At the time the matter was heard (November 2008), it seems to me that the SSAT was entitled to reach the conclusion that the children were likely to be in the care of the respondent for nine nights over the Easter public holidays and Autumn school holidays. If for some reason that did not occur, then the Applicant could seek a change of percentage of care having regard to the provisions of s.52 (1) of the Assessment Act.
As separate Grounds of Appeal, the Applicant argues that the SSAT erred in failing to take into account or ignoring the submissions of the mother’s Attorney being the letter of 23 October 2008 and the annexures to that letter.
Mr Serow represented the Applicant in the hearing before the SSAT and it seems clear that he put his arguments regarding the interpretation of the orders for the Summer school holidays and the arguments about the July school holidays in 2008.
I am not persuaded that the SSAT did not consider his further submissions and evidence nor am I persuaded that the Applicant was denied procedural fairness.
Summary and conclusions
I am not satisfied that the SSAT erred in law in the determination of this matter.
For the reasons I have given I consider that the SSAT was correct in law in reaching its final factual conclusion in para 27 of the Decision.
As a result of that factual finding then the SSAT was entitled to reach the conclusion about the percentage of care that it did in para 28 of the Decision.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Slack FM
Associate: Karen Smith
Date: 15 June 2009
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