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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] FMCAfam 3
Decision Date: 30 March 2012

CaseChat Overview and Summary

In the appeal of Ivory and Owens, the appellant, Ivory, challenged the decision of the Social Security Appeals Tribunal (SSAT) regarding the amount of leave required for her ex-partner, Owens, to care for their children. The SSAT had ruled that Owens' purchased leave was insufficient for the time he needed to care for the children, necessitating additional leave. Ivory contested this ruling on the grounds that the SSAT had erred in its interpretation of the law. The Federal Circuit Court of Australia was tasked with reviewing the SSAT's decision on a question of law, ensuring that the tribunal had correctly applied the legislative provisions and procedural fairness. The court examined whether the SSAT had correctly interpreted the statutory requirements and whether it had properly considered the evidence provided by both parties. The court found that the SSAT had meticulously reviewed the evidence and made findings that were not unreasonable or illogical.

The Federal Circuit Court assessed the SSAT's reasoning and the evidence presented by both parties, including the operational constraints and the need for continuous care. It concluded that the SSAT had appropriately evaluated the evidence and had not erred in its interpretation of the leave requirements. The court held that the findings of the SSAT were not so unreasonable as to warrant an appeal on a question of law. Therefore, the appeal was dismissed, and the SSAT's decision was upheld.

The court emphasized that an appeal on a question of law does not involve a review of the merits or factual findings of the tribunal. Instead, it focuses on whether the tribunal correctly applied the law and adhered to procedural fairness. In this case, the court found no such errors and thus upheld the SSAT's decision.

The final orders of the court were to dismiss Ivory's appeal against the SSAT's decision, affirming that the SSAT's findings on the leave requirements for Owens to care for the children were legally sound and properly reasoned.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Section 110B of the Child Support (Registration and Collection) Act 1988 provides as follows:Section 110B: Appeals from decisions of SSATA 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.

Ratio Decidendi

Legal Principle Established

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