Ivory and Owens (SSAT Appeal) - [2012] FMCAfam 3

FEDERAL MAGISTRATES COURT OF AUSTRALIA

IVORY & OWENS (SSAT APPEAL)

[2012] FMCAfam 3

CHILD SUPPORT – SSAT APPEAL – Appeal from decision of SSAT – appeal concerns whether Tribunal erred in determining that the respondent’s purchase of annual leave and resultant reduction in annual income was necessary for his care responsibilities for the two children – appellant unable to establish that the SSAT erred in law – appeal dismissed.

Child Support (Registration and Collection) Act 1988, ss.103X(3), 110B
Child Support (Assessment) Act 1989, Part 5, Part 6A, ss.3, 4, 98C, 98F, 98S, 117, 989

Tasman & Tisdale [2010] FMCAfam 425
Crabbe & Crabbe (SSAT Appeal) [2012] FMCAfam 205

Applicant:

MS IVORY

Respondent:

MR OWENS

File Number:

MLC 7175 of 2008

Judgment of:

Bender FM

Hearing date:

9 December 2011

Date of Last Submission:

9 December 2011

Delivered at:

Melbourne

Delivered on:

30 March 2012

REPRESENTATION

Counsel for the Applicant:

Mr Fuller

Solicitors for the Applicant:

James Fuller

Counsel for the Respondent:

In person

Solicitors for the Respondent:

In person

ORDERS

The Notice of Appeal filed by the appellant on 28 April 2011 from the decision of the Social Security Appeals Tribunal dated 1 April 2011 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Ivory & Owens (SSAT Appeal) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 7175 of 2008

MS IVORY

Applicant

And

MR OWENS

Respondent

REASONS FOR JUDGMENT

Introduction

This is an appeal by the appellant wife from a decision of the Social Security Appeals Tribunal (“the SSAT”) dated 24 March 2011 and despatched to the parties on 1 April 2011 in relation to the child support payable by the respondent husband.
The parties are the parents of the children [X] born [in] 2003 (“[X]”) and [Y] born [in] 2004 (“[Y]”). The parties married [in] 2000 and separated in August 2007.
The parties were involved in lengthy proceedings in the Federal Magistrates Court in relation to parenting and property matters between 2008 and 2010. Final parenting orders were made on 29 January 2010, which provide for [X] and [Y] to spend time with the husband each alternate week from after school Thursday to before school Monday, each other week from after school Thursday to before school Friday, for half of the school holidays and on special days. These orders increased the time that [X] and [Y] spent with the respondent husband to 144 nights per annum.
Final property orders were made on 14 April 2010.
The appellant wife is employed as a [omitted] with [Q]. The respondent husband is a [omitted] with [A].

Child Support History

The husband has been paying child support to the wife as assessed by the Child Support Agency since September 2007.
The husband was assessed to pay child support of $6,590.00 per annum to the wife for the period 1 December 2009 to 28 January 2010 based on his adjusted taxable income (“ATI”) of $71,932.00 (his 2008/2009 taxable income). From 29 January 2010, he was assessed to pay $5,370.00 per annum and from 30 July 2010 he was assessed to pay $4,964.00 per annum.
On 7 May 2010, the wife sought a departure from the assessment on the grounds that:
·the assessment was not just and equitable because of the husband’s income, property and financial resources and, in particular, the fact that the husband had reduced his taxable income by purchasing annual leave from his employer and that such purchased leave was not necessary to enable the husband to meet his responsibility to care for [X] and [Y]; and
·the assessment was not just and equitable because of the costs incurred by the wife of [X]’s education at [omitted] primary school and the children’s extra-curricular activities.
On 25 May 2010, the husband sought a departure from the assessment on the grounds that the wife’s income should be set on the basis of her earning capacity, rather than her actual income, and that her travel allowance from her employment with [Q] should be added to her taxable income.

On 13 August 2010, a Senior Case Officer, acting as a delegate of the Child Support Agency, determined that the husband’s ATI should be set at $86,039.00 for the period 10 May 2010 to 30 April 2011.

This determination was made on the basis that the Senior Case Officer did not accept that the husband could only meet his responsibilities for the care of [X] and [Y] by purchasing leave.
The Senior Case Officer was not satisfied that there was mutual intention that [X] attend a Catholic primary school and found the costs of [X] and [Y]’s extra-curricular activities were already factored into the child support formula.
The Senior Case Officer was not satisfied that the husband had established all the legal grounds to have the wife’s earning capacity used as opposed to her actual income. The Senior Case Officer found that the wife’s working pattern had not significantly changed and that her travel costs were expended by her in the course of her employment.
On 1 September 2010, the husband lodged an Objection to the

Senior Case Officer’s decision. The wife also objected to the decision of the Senior Case Officer. Both parties filed further material and arguments in support of their case.
On 29 October 2010, an Objections Officer of the Child Support Agency disallowed the parties’ objections. In paragraph 10 of the Reasons for Decision despatched by the SSAT on 1 April 2011, the basis for the Objections Officer disallowing the Objections were set out as follows:
·The wife did not establish that there was mutual intention to send [X] and [Y] to a Catholic school;
·The costs of [X] and [Y]’s extra-curricular activities were covered by the child support formula;
·The husband did not establish that the wife’s income should be set at her earning capacity rather than her ATI as the wife had increased her hours to full-time at [Q] and any drop in income between 2008/2009 and 2009/2010 was as a result of her income in 2008/2009 being atypically high because of the interest received from her property settlement; and
·The Objections Officer was satisfied that the husband had available to him 62 days of leave to utilise to care for the children, being annual leave, long service leave and leave taken to holiday without the children and that he therefore did not need to purchase 35 days of leave to meet his responsibilities to care for [X] and [Y].
On 9 November 2010, the husband lodged an Application to review the decision of the Objections Officer with the SSAT. The matter was heard on 22 February 2011. Both parties were unrepresented before the Tribunal.
On 24 March 2011, the Tribunal made its decision, which was despatched to the parties on 1 April 2011.
The Tribunal decided to set aside the decision under review and substituted its decision that no departure order be made under section 98F of the Child Support (Assessment) Act 1989.

Reasons of the Social Security Appeals Tribunal

The Tribunal is required to set out its reasons, findings of fact and the evidence on which it has made those findings pursuant to section 103X(3) of the Child Support (Registration and Collection) Act 1988.
In its Reasons, the Tribunal sets out the legislative framework under which it determined the matter as follows:
·The rate of child support payable is usually based on administrative assessment under Part 5 of the Child Support (Assessment) Act 1989, which involves the application of a statutory formula that takes into account, amongst other factors, the income of each parent;
·Under Part 6A of the Child Support (Assessment) Act 1989, a liable parent can apply to the Child Support Registrar for a departure from the administrative assessment;

·Section 98C of the Child Support (Assessment) Act 1989 provides that the Registrar, and the Tribunal standing in place of the Registrar, must apply a three step process when determining whether to depart from the administrative assessment;
·The Registrar (or Tribunal) must be satisfied:
a)that one, or more than one, of the grounds for departure under section 117(2) of the Child Support (Assessment) Act 1989 exists; and if so
b)that it would be:
i) just and equitable as regards to the child, the liable parents, and the carer entitled to child support; and
ii) otherwise proper

to make a determination for a departure from the administrative assessment of child support under Part 6A;
·The grounds for departure from an administrative assessment are those set out in section 117(2) of the Child Support (Assessment) Act 1989; and
·Section 98S of the Child Support (Assessment) Act 1989 sets out the range of determinations the Registrar (or Tribunal) may make if satisfied a ground for departure exists.

As the wife’s appeal in this matter is confined to the Tribunal’s determination that the husband’s purchase of annual leave and resultant reduction in annual income was necessary because of his responsibilities for the care of [X] and [Y], I will only consider the part of the Tribunal’s decision that relates to that particular aspect of its decision.
Quite properly, the Tribunal noted that the departure from the administrative assessment sought by the wife was on the ground that the use of the husband’s taxable income to determine the level of his child support produced an unjust and inequitable rate of child support.
The Tribunal confirmed that the grounds for departure from an administrative assessment are set out in section 117(2) of the Child Support (Assessment) Act 1989 and that the relevant sub-paragraphs provide as follows:
Grounds for departure order
(2)For the purposes of subparagraph (1)(b)(i), the grounds for departure are as follows:
(c) that, in the special circumstances of the case, application in relation to the child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child.
…
(ib)    because of the earning capacity of either parent; or
…
Income, earning capacity, property and financial resources
(7B)In having regard to the earning capacity of a parent of the child, the court 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)one or more of the following applies:
(i)     the parent does not work despite ample opportunity to do so;
(ii)     the parent has reduced the number of hours per week of his or her employment or other work below the normal number of hours per week that constitutes full-time work for the occupation or industry in which the parent is employed or otherwise engaged;
(iii)   the parent has changed his or her occupation, industry or working pattern; and
(b)the parent's decision not to work, to reduce the number of hours, or to change his or her occupation, industry or working pattern, is not justified on the basis of:
(i)     the parent's caring responsibilities; or
(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 affect the administrative assessment of child support in relation to the child.
The Tribunal found that in purchasing leave, the husband had changed his working pattern from 2009 and accordingly the first limb of the test for setting a parent’s level of child support based on his earning capacity rather than his actual income had been met.[1]
[1] Paragraph 31 of the Tribunal’s Reasons.
The Tribunal then considered whether the husband’s decision to reduce his hours of work was justified, as the husband claimed, on the basis of his responsibilities to care for [X] and [Y].
It is apparent from the very detailed Reasons that the Tribunal considered the evidence and submissions of both parties on this issue in great depth.
At paragraph 35 of its Reasons, the Tribunal noted the following:
·The husband has six weeks (or 30 working days) of annual leave;
·In addition, the husband has long service leave, which can only be taken in seven day blocks;
·The husband has the capacity to accrue time in lieu (TOIL) if he works overtime but that this can only be taken subject to the operational requirements of [A]. This was confirmed in the material provided by [Mr D], the co-ordinator of the area of [A] where the husband works. The Tribunal accepted the evidence in this regard; and
·The husband is unable to take leave, other than sick leave, for less than one day.
It was the husband’s evidence that he had the care of [X] and [Y] for 109.5 days in 2010. The husband argued that he utilised his 30 days leave to meet the period when he had [X] and [Y] for school holidays and that he required purchased leave to meet his other care requirements.
It was the husband’s evidence that he could only use long service leave in seven day blocks, that he could only do so every second year and that it was unfair to expect him to utilise long service leave regularly to meet his care responsibilities for [X] and [Y] as this is not expected of most parents with long service leave entitlements.
In relation to his obligations to collect [X] and [Y] from school every second Thursday and Friday, it was the husband’s evidence that he could not, nor did he wish to, delegate these tasks to others. Further it was his evidence that he could not utilise TOIL to do so as he could not guarantee his availability if TOIL was cancelled because of the operational requirements of his employer. Further, TOIL could not be taken for part of a day only.
It was the husband’s evidence that on the Fridays of the weeks he did not have [X] and [Y] for the weekend and on the Mondays he took the children to school, he was able to start and finish work later and did not need to have leave on these days.
It was the husband’s evidence that he utilises his TOIL to care for [X] and [Y] on the Friday of the week when he has [X] and [Y] from after school Thursday to before school Monday. It was his further evidence that the amount of TOIL he is able to accumulate is limited and is not sufficient to meet all his responsibilities to care for [X] and [Y] and, in particular, his need to collect [X] and [Y] from school every Thursday.

It was the wife’s evidence that the husband could and should utilise TOIL to drop off and collect [X] and [Y]. It was her evidence that in addition to utilising his TOIL, the husband has the option of delegating pick up and collection to his partner or, if she was unavailable, he could utilise before and after school care. The wife argued that it was therefore not necessary for the husband to take every Thursday and second Friday off work to care for [X] and [Y].
The wife argued that the husband could utilise his long service leave to care for [X] and [Y] when they spent time with him in the school holidays.
The wife argued that in 2010 the husband took 17 days of annual leave for a holiday overseas without the children and that he should not be allowed to utilise purchased leave for [X] and [Y]’s care when he did not use his available annual leave for that purpose.
It its Reasons, the Tribunal found that the 2010 Federal Magistrates Court orders require the husband to provide a level of care that is greater than his six weeks of annual leave.[2]
[2] Paragraph 41 of the Tribunal’s Reasons.
Further, the Tribunal was not persuaded that it was possible, or appropriate, for the husband to utilise long service leave for [X] and [Y]’s care.[3]
[3] Ibid.
In relation to the issue of the husband utilising his long service leave, the Tribunal further stated in paragraph 44 of its Reasons:
“Nor does it consider it appropriate to expect him to use his long service leave regularly, and it accepts that there are limitations on him doing so even if he wished to, as long service leave can only be taken in blocks of one week, for which the composite loading of 22% is not payable.”
In relation to the possibility of [X] and [Y] being cared for by others, in paragraph 43 of its Reasons, the Tribunal held as follows:
“…the Tribunal is satisfied that Mr Owens requires more leave than is provided for by his six weeks of accrued annual leave in order to have care of [X] and [Y] as per the Court Orders. It also accepts that it is his wish to have care of them personally to the extent that he is able and that he therefore does not wish to delegate care to others. On this issue, the Tribunal notes that the only option for delegation would appear to be Mr Owens’s partner, [first name omitted], as Ms Ivory (sic) accepted that neither Mr Owens’s mother nor his sister was in a position to provide care any longer; or before or after-school care.”
The Tribunal considered the option of the husband utilising TOIL to meet his care obligations and concluded in paragraph 44 of its Reasons as follows:
“On balance, the Tribunal accepts, given the particular operational requirements of [A], that Mr Owens cannot meet the current care arrangements utilising only accrued annual leave and TOIL and the three days of allocated respite care per year.”
Whilst acknowledging that the wife did not agree with the extent to which the husband claimed the need to purchase leave in order to care for [X] and [Y] or that the husband should be able to sacrifice taxable income in circumstances where there were others who could assist in the children’s care, the Tribunal concluded at paragraph 45 of its Reasons as follows:
“… the Tribunal is satisfied that Mr Owens has changed his working pattern due to his caring responsibilities. … the Tribunal considers that Mr Owens does in fact have a level of care under the court orders that require more leave than the six weeks of annual leave that he accrues and that it is not inappropriate for him to therefore purchase additional leave to fulfil these responsibilities in circumstances in which long service leave cannot be utilised except in limited circumstances and where TOIL does not guarantee his availability for care.”
The Tribunal further held that as it was satisfied that the husband’s change in work pattern was due to his caring responsibility, it did not need to consider whether the husband had demonstrated that the major purpose of that decision was to affect the administrative assessment of child support.[4]
[4] Paragraph 46 of the Tribunal’s Reasons.
The Tribunal noted however that, had it been required to consider that issue, it would have been satisfied that the husband had demonstrated that the major purpose for his decision to purchase leave was not to reduce his child support liability.[5]
[5] Paragraph 47 of the Tribunal’s Reasons.
The Tribunal further noted that when the income that was lost through the husband’s purchase of leave was “added back”, the increased amount that the husband would be required to pay under an administrative assessment did not have a significant effect on his overall child support liability. The Tribunal calculated the additional child support as $24.00 per week in 2008/2009,[6] $27.00 per week in 2009/2010[7] and $28.50 per week in 2010/2011.[8]
[6] Paragraph 48 of the Tribunal’s Reasons.
[7] Paragraph 49 of the Tribunal’s Reasons.
[8] Paragraph 50 of the Tribunal’s Reasons.
The Tribunal therefore held that as it was satisfied that the husband’s change in work was due to his responsibilities to care for [X] and [Y], the grounds for a departure from the administrative assessment pursuant to section 117(2) of the Child Support (Assessment) Act 1989 on the basis of the husband’s earning capacity rather than his actual income had not been met.[9]
[9] Paragraph 46 of the Tribunal’s Reasons.

Social Security Appeals Tribunal decision

On 24 March 2011, the SSAT set aside the decision under review and made the following determination:
·The Tribunal is not satisfied that any grounds for departure exist; and
·The Tribunal substitutes its decision that no departure order is to be made under section 989 of the Child Support (Assessment) Act 1989.
The Tribunal despatched its decision to the parties on 1 April 2011.

Appeal from the decision of the Social Security Appeals Tribunal

The appellant filed a Notice of Appeal in relation to the Tribunal’s decision on 28 April 2011.

Grounds of appeal

The appellant relied on the Grounds of Appeal contained in her Notice of Appeal filed 28 April 2011, together with her Outline of Case filed

9 November 2011.
The grounds of her appeal can be summarised as follows:
(1)The Tribunal gave no or insufficient weight to the provisions of sections 3 and 4 of the Child Support (Assessment) Act 1989 in its finding that it was necessary for the husband to purchase leave to meet his responsibilities to care for [X] and [Y].
(2)The finding of the Tribunal that is was necessary for the husband to purchase leave to meet his responsibilities to care for [X] and [Y] was not supported by the evidence.

Ground 1: Did the SSAT fail to consider the duty of parents to maintain their children, as provided for in the Objects of the Child Support (Assessment) Act 1989 contained in sections 3 and 4, when it determined that the husband’s purchased leave was necessary for him to fulfil his caring responsibilities for

[X] and [Y]?

Sections 3 and 4 of the Child Support (Assessment) Act 1989 are set out in the following terms:
Section 3:     Duty of parents to maintain their children
(1)The parents of a child have the primary duty to maintain the child.
(2)Without limiting subsection (1), the duty of a parent to maintain a child:
(a)is not of lower priority than the duty of the parent to maintain any other child or another person; and
(b)has priority over all commitments of the parent other than commitments necessary to enable the parent to support:
(i)     himself or herself; and
(ii)     any other child or another person that the parent has a duty to maintain; and
(c)is not affected by:
(i)     the duty of any other person to maintain the child; or
(ii)     any entitlement of the child or another person to an income tested pension, allowance or benefit.
Section 4:      Objects of Act
(1)The principal object of this Act is to ensure that children receive a proper level of financial support from their parents.
(2)Particular objects of this Act include ensuring:
(a)that the level of financial support to be provided by parents for their children is determined according to their capacity to provide financial support and, in particular, that parents with a like capacity to provide financial support for their children should provide like amounts of financial support; and
(b)that the level of financial support to be provided by parents for their children should be determined in accordance with the costs of the children; and
(c)that persons who provide ongoing daily care for children should be able to have the level of financial support to be provided for the children readily determined without the need to resort to court proceedings; and
(d)that children share in changes in the standard of living of both their parents, whether or not they are living with both or either of them; and
(e)that Australia is in a position to give effect to its obligations under international agreements or arrangements relating to maintenance obligations arising from family relationship, parentage or marriage.
(3)It is the intention of the Parliament that this Act should be construed, to the greatest extent consistent with the attainment of its objects:
(a)to permit parents to make private arrangements for the financial support of their children; and
(b)to limit interferences with the privacy of persons.
The appellant argued that sections 3 and 4 are the overarching provisions of the Child Support (Assessment) Act 1989 and that the Tribunal must consider those sections when determining the appropriate level of child support payable by a parent and give a clear indication in their decision that they have done so.
It was the appellant’s argument that the Tribunal’s findings are such that it is clear it did not consider sections 3 and 4 of the Child Support (Assessment) Act 1989 in reaching its decision.
The appellant makes reference to six specific matters in the Tribunal’s Reasons as showing that it had failed to consider sections 3 and 4 of the Child Support (Assessment) Act 1989 in reaching its decision. These six matters are:
·The Tribunal’s finding that the husband was not required to utilise his long service leave to care for his children;
·
Given the husband has the care of [X] and [Y] for

109.5 days and that even with purchased leave he is required to care for them for 40.5 days each year within the constraints of his work commitments, the Tribunal failed to consider what care arrangements the husband puts in place for those 40.5 days and why such arrangements would not be suitable for the 30 days for which he purchases leave;

·The Tribunal’s failure to give proper weight to the husband’s flexible working hours such that he has the capacity to drop off and collect [X] and [Y] to and from school without the necessity of taking the entire day off work, as evidenced by his ability to drop the children to school every second Friday and Monday and commence work after he had done so;
·The Tribunal’s finding that the husband could not utilise TOIL to drop off and collect the children when the husband failed to place any evidence before the Court as to the frequency with which his TOIL had been cancelled because of the operational requirements of his employer;
·The Tribunal’s failure to consider the availability of the husband’s partner to assist in the care of [X] and [Y] and in particular to drop off and collect them from school;
·The Tribunal’s failure to consider the capacity of the husband to utilise before and after school care for [X] and [Y]; and
·The Tribunal’s failure to properly consider the three weeks annual leave the husband took for an overseas holiday without the children in 2010.

The appellant argued that when all the matters outlined above are considered as a whole, it is apparent that the Tribunal failed to give proper weight to the provisions of sections 3 and 4 of the Child Support (Assessment) Act 1989. The appellant argued that the findings of the Tribunal were not appropriate because the level of financial support provided by each parent should be determined by their capacity to provide such support and the husband clearly has the capacity to provide greater support if he does not unnecessarily purchase leave.
The respondent submitted that the Tribunal did address sections 3 and 4 of the Child Support (Assessment) Act 1989 in its determination of the matter.

The respondent made particular reference to paragraphs 48 to 50 of the Tribunal’s Reasons. In paragraphs 48 to 50, the Tribunal considered the reduction in child support payable by the respondent pursuant to the formula as a result of his purchase of leave and concluded that the reduction in the annual amount of child support payable by the husband due to his purchase of leave when compared to the child support payable if he had not purchased leave was minor.
The respondent argued that paragraphs 48 to 50 of the Tribunal’s Reasons clearly show that the Tribunal put its mind to the requirement that each parent provide a proper level of financial support for the children when it determined this matter.
The respondent challenged the appellant’s submission that the findings of the Tribunal did not address sections 3 and 4 of the Child Support (Assessment) Act 1989. The respondent submitted that the Tribunal’s findings were consistent with sections 3 and 4 of the Child Support (Assessment) Act 1989 and were open to the Tribunal on the basis of the evidence before it.
The respondent submitted that it was not his expectation that he could purchase leave to enable him to be absent from work for all 109.5 days of his care of [X] and [Y] each year.
It was the respondent’s evidence that he uses a combination of annual leave, purchased leave, work flexibility by starting late on those days he is required to drop [X] and [Y] to school only and TOIL which he takes whenever he can for the Friday he has the children for the weekend to ensure he is able to care for [X] and [Y]. This evidence was accepted by the Tribunal.
The respondent confirmed his evidence before the Tribunal that the need for operational flexibility is a component of the pay structure with his employer for which he receives a 22 per cent loading. If he were to change his work practices to guarantee his availability to drop-off and collect [X] and [Y], he would become “non-operational” and would lose the 22 per cent loading. The resultant loss of income from the loss of this loading would be much greater than that arising from his purchase of leave.
The respondent argued that the Tribunal was satisfied on the evidence that long service leave was only available to him for his commitments to care for [X] and [Y] during school holidays every second year and further that it was unreasonable to require him to utilise long service leave for childcare purposes.
The respondent argued that the Tribunal accepted the evidence that his partner’s commitments with respect to study and now full-time work were such that she was unable to assist in the drop off or collection of [X] and [Y].
Further, the respondent noted that the Tribunal accepted his evidence that, if possible, when the children were in his care he wished to be directly involved in that care.
The respondent argued that the SSAT accepted that before or after school care would not assist in the care of [X] and [Y] because the operational requirements of his position could require him to work earlier or later than the operating times of the before and after school care service.
Finally, the respondent argued that the Tribunal accepted his evidence that his holiday without [X] and [Y] in 2010 was a “one off” and that it was not his intention to take annual leave other than when [X] and [Y] were in his care in the future.
Sections 3 and 4 of the Child Support (Assessment) Act 1989 inform the basis of that legislation. As is set out in the preamble to the

Child Support (Assessment) Act 1989
, the legislation is:
“an Act to make provision for determining the financial support payable by parents for their children.”
The Child Support (Assessment) Act 1989 puts in place a formula that enables an administrative assessment of the amount of child support payable by the parents of a child based in part on each of the parents’ taxable incomes and their obligations to care for that child. The legislation also provides for there to be a departure from the administrative assessment of child support. The Act reflects the Objects of the legislation.
The legislative framework for determining whether a departure order should be made was, as set out previously in this judgment, properly and correctly summarised in the Tribunal’s Reasons.
In correctly setting out the legislative framework under which a departure order could be determined, and in determining this matter in accordance with that legislative framework, the Tribunal applied the Objects of the Child Support (Assessment) Act 1989 as enunciated in sections 3 and 4 of the Act. The absence of any specific reference to sections 3 and 4 of the Child Support (Assessment) Act 1989 by the Tribunal in its Reasons does not mean it failed to consider or apply those provisions to its determination.
The Tribunal was satisfied, after careful consideration of all the evidence before it, that it was necessary for the husband to purchase leave in order to meet his responsibilities to care for [X] and [Y]. Accordingly, the Tribunal made a finding that there were no grounds for a departure from the administrative assessment of the husband’s child support.
The appellant argues that such a finding was not open to the Tribunal if it had considered sections 3 and 4 of the Child Support (Assessment) Act 1989.
I do not accept the appellant’s submission in this regard. It is apparent from the Tribunal’s Reasons that it formed the view that the level of child support payable by the husband to the wife pursuant to the administrative assessment ensured that [X] and [Y] were properly financially supported by the husband.
In paragraph 52 of the Tribunal’s Reasons, the Tribunal specifically puts its mind to the level of financial support provided by the husband for [X] and [Y] pursuant to the administrative assessment. It found that level of support to be satisfactory. The Tribunal states at paragraph 52 of its Reasons as follows:
“Moreover, the Tribunal is not satisfied that, in the special circumstances of the case, the application of the administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by Mr Owens for [X] and [Y].”
Given the thorough examination of all the relevant evidence before it, the compliance with the legislative pathway in its determination of whether a departure order should be made and its consideration of the level of support payable by the husband if no departure order were made, I am satisfied that in reaching its decision in this matter the Tribunal properly considered the duty of parents to properly support their children (section 3 of the Child Support (Assessment) Act 1989) and the Object of the Child Support (Assessment) Act 1989 that each parent support their child according to their capacity (section 4 of the Child Support (Assessment) Act 1989). The determination made by the Tribunal reflects that consideration.
Accordingly, this Ground of Appeal is not established.

Ground 2: Were the findings of the SSAT that the husband required purchased leave to meet his responsibilities to care for

[X] and [Y] supported by the evidence?

The appellant is strongly of the view that the Tribunal erred in its findings that the respondent required purchased leave to meet his responsibilities to care for [X] and [Y].
In particular, the appellant argued that the respondent did not require a whole day every Thursday and every second Friday to care for [X] and [Y] when he was only required to drop off and collect the children from school. Further, the appellant submitted that the finding of the Tribunal that he did require the entire day off was not supported by the evidence when other arrangements were available to the husband, namely TOIL, the use of before and after school care or a partner who could assist with those duties.
The respondent submitted that an appeal from a decision of the SSAT must be on a question of law and that the appellant was seeking to review the findings of evidence made by the SSAT. The respondent submitted that accordingly this ground of appeal should be dismissed.

Section 110B of the Child Support (Registration and Collection) Act 1988 provides as follows:
Section 110B: Appeals from decisions of SSAT
A party to a proceeding before the SSAT under Part VIIA may appeal to a court having jurisdiction under this Act, on a question of law, from any decision of the SSAT in that proceeding.
In Crabbe & Crabbe (SSAT Appeal) [2012] FMCAfam 205, Coates FM cites with approval at paragraph 20, the decision of Brown FM in Tasman & Tisdale [2010] FMCAfam 425 where His Honour at paragraphs 85 and 86 held:
85.In particular, I reiterate an administrative tribunal exceeds its powers and thus commits a jurisdictional error, which is correctable on appeal, in respect of a question of law, if it:
·fails to construe properly the legislative provisions applicable;
·identifies the wrong issues or asks itself the wrong questions;
·ignores relevant material or relies on irrelevant material;
·fails to accord procedural fairness to the party before it;
·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.
86In summary, an appeal on a question of law:
·is not a review on the merits or a rehearing;
·as such, an appeal on a question of law is not one in which findings of fact, per se, can be called into question;
·however, bearing in mind the statutory intent implicit in Part VIII of the Collection Act and the purpose of the Federal Magistrates Court itself, in dealing with SSAT appeals, the court should not be unduly legalistic or pedantic, particularly where the appellant concerned is self-represented;
·in reviewing a decision of the SSAT for error, the court should not examine the decision in question with an eye “keenly attuned to the perception of error”.
In order for the appellant to be successful, she would need to satisfy me that the findings of the Tribunal that the husband’s purchased leave was required to enable him to care for [X] and [Y] were so perverse or unreasonable as to offend logic.
It is apparent from its Reasons that the Tribunal considered the parties’ competing evidence on this issue in considerable depth. The Tribunal summarises the parties’ evidence and respective submissions in 12 full pages of its Reasons.
The parties’ evidence and arguments on these issues have been canvassed at length in this judgment and I do not intend to repeat them here.
Further, I do not intend to set out the Tribunal’s summary of the evidence and submissions of the parties that it considered in this judgment, save to observe that all relevant evidence and supporting material was properly before the Tribunal and was fully considered by them.
As set out previously in this judgment the Tribunal, having carefully considered the parties’ arguments, found as follows:
·The interim and final orders of the Federal Magistrates Court for [X] and [Y]’s time with the husband require more than the six weeks of the husband’s accrued annual leave;[10]
·The husband can only utilise long service leave every second year and he can only do so in blocks of seven days for which the composite loading of 22 per cent is not payable;[11]
·It is not appropriate that the husband be required to utilise his long service leave to care for [X] and [Y];[12]
·The husband wishes to have care of [X] and [Y] personally to the extent he is able when they are in his care and does not want to delegate their care to others;[13] and
·Given the operational requirements of [A], the husband cannot meet his responsibilities to care for [X] and [Y] by utilising accrued annual leave, TOIL and his three days of allocated respite care per year.[14]
[10] Paragraph 41 of the Tribunal’s Reasons.
[11] Paragraphs 41 and 44 of the Tribunal’s Reasons.
[12] Paragraph 44 of the Tribunal’s Reasons.
[13] Paragraph 43 of the Tribunal’s Reasons.
[14] Paragraph 44 of the Tribunal’s Reasons.
Having carefully perused the Tribunal’s Reasons, I am of the view that the finding of the Tribunal that the level of care of [X] and [Y] to be provided by the husband was such that it was appropriate for him to purchase leave was open to the Tribunal on the evidence before it.

I am satisfied that such finding was reasonable and based on a proper consideration of all the relevant evidence before the Tribunal.
Accordingly, this Ground of Appeal is not established.

Determination

Having determined that the appellant has not established that the SSAT erred in law in its determination of the matters before it, the appeal is dismissed.

I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Bender FM

Date: 30 March 2012