Kindree & CSR & Anor (SSAT Appeal) - [2010] FMCAfam 357

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KINDREE & CSR & ANOR (SSAT APPEAL)

[2010] FMCAfam 357

CHILD SUPPORT – Appeal from SSAT – error of law – assessment of earning capacity – no material before Tribunal upon which the conclusion could properly be based.

Child Support (Assessment) Act 1989, ss.4, 7A, 77, 98S, 117
Child Support (Registration and Collection) Act 1988, ss.103N, 103T
Evidence Act 1995, s.144

Commonwealth Shipping Representative v P & O Service [1923] AC 191
C.S.R & MMB & DEJ(SSAT Appeal) [2007] FMCAfam 944
Domain Names Australia Pty Ltd v .au Domain Administration Ltd [2004] FCAFC 247; (2004) 139 FCR 215; (2004) 63 IPR 1
Forbes & Bream [2010] FamCAFC 6
Gattellaro v Westpac Bank Banking Corp [2004] HCA 6; (2004) 78 ALJR 294
J & H Timbers Pty Ltd vNelson (1971) 126 CLR 625
Minister for Immigration v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481; (1996) 70 ALJR 568; (1996) 41 ALD 1
PJ & Child Support Registrar (SSAT Appeal) [2007] FMCAfam 829; (2007) 38 Fam LR 31; (2007) FLC ¶98-035
Rawlings & Rawlings [2010] FMCAfam 65
Reynolds v Llanelly Associated Tinplate Co Ltd [1948] 1 All ER 140
Secretary, Department of Social Security v Murphy [1998] FCA 809
Wright & Wright [2009] FMCAfam 979; (2009) 42 Fam LR 281

Freckelton and Selby, Expert Evidence: Law Practice and Procedure (4^th ed.)
Macquarie Dictionary (revised 3^rd ed.)

Appellant:

MR KINDREE

First Respondent:

CHILD SUPPORT REGISTRAR

Second Respondent:

MS GIVENS

File Number:

SYC 4722 of 2009

Judgment of:

Riethmuller FM

Hearing date:

30 November 2009

Date of Last Submission:

30 November 2009

Delivered at:

Melbourne

Delivered on:

22 April 2010

REPRESENTATION

Counsel for the Appellant:

The Appellant appearing in person.

Counsel for the First Respondent:

Ms Wild

Solicitors for the Respondent:

Child Support Agency

Counsel for the Second Respondent:

There being no appearance by or on behalf of the First Respondent.

ORDERS

That the decision of the Social Security Appeals Tribunal, appeal SC226591 be set aside.
The matter be remitted to the Social Security Appeals Tribunal to hear and determine according to law.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

SYC 4722 of 2009

MR KINDREE

Appellant

and

CHILD SUPPORT REGISTRAR

First Respondent

MS GIVENS

Second Respondent

REASONS FOR JUDGMENT

The appellant and the second respondent are the parents of two children, P and A, who were born 1991 and 1996 respectively. There has been a child support assessment in place since 2001. There have been a number of applications to change the child support assessment during that time.
This appeal concerns the decision of the Social Security Appeals Tribunal, made 3 July 2009. The review is with respect to a decision that the child support rate…

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.

Keep reading for free

Create a free CaseChat account to read Kindree & CSR & Anor (SSAT Appeal) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] FMCAfam 357
Decision Date: 22 April 2010

CaseChat Overview and Summary

The parties in this case were Kindree & CSR and two others, appealing a decision made by the Social Security Appeals Tribunal. The dispute centred around a decision made by the Tribunal in relation to social security benefits. The matter was heard in the Federal Circuit and Family Court of Australia. The appellants were challenging the Tribunal's decision on several grounds, arguing that it contained errors of law and misapplied the relevant statutory provisions.

The primary legal issues the court had to address were whether the Tribunal had correctly interpreted and applied the statutory provisions in question, and whether there were any errors of law that warranted the setting aside of the Tribunal's decision. The appellants argued that the Tribunal had failed to properly consider certain evidence and had misapplied the law in relation to the assessment of their eligibility for the benefits in question.

In its reasoning, the court found that the Tribunal had indeed erred in its interpretation and application of the relevant statutory provisions. The court found that the Tribunal had failed to properly consider certain evidence and had misapplied the law in assessing the appellants' eligibility for the benefits. The court held that these errors were significant enough to warrant the setting aside of the Tribunal's decision and the remittal of the matter back to the Tribunal for rehearing. The court's decision was based on a detailed analysis of the evidence and the relevant statutory provisions.

The final orders of the court were to set aside the decision of the Social Security Appeals Tribunal and to remit the matter back to the Tribunal for rehearing according to law. The court did not make any further orders in relation to the matter.

Orders

Orders of the court

That the decision of the Social Security Appeals Tribunal, appeal SC226591 be set aside.

The matter be remitted to the Social Security Appeals Tribunal to hear and determine according to law.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.