Linnan and Linnan (SSAT Appeal) - [2009] FMCAfam 353

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LINNAN & LINNAN (SSAT Appeal)

[2009] FMCAfam 353

CHILD SUPPORT –Appeal from SSAT – determining income amounts – meaning of ‘just and equitable’ – relevant considerations.

Child Support (Assessment) Act 1989, ss.38A, 117

Dwyer v McGuire (1993) 114 FLR 325; (1993) 17 Fam LR 42; (1993) FLC ¶92-420
Bassingthwaite v Leane (1993) 114 FLR 202; (1993) 16 Fam LR 918; (1993) FLC ¶92-410
In the Marriage of Dempsey (1991) 104 FLR 283; (1991) 14 Fam LR 739; (1991) FLC ¶92-228
PJ & Child Support Registrar (SSAT Appeal) [2007] FMCAfam 829; (2007) 38 Fam LR 31; (2007) FLC ¶98-035
Tyagi & Meares (SSAT Appeal) [2008] FMCAfam 886; (2008) 39 Fam LR 604

Chisholm R, Exclusion of evidence inconsistent with earlier statements: The rise and fall of the ‘Elias principle’ (2001) 15 AJFL 1

Applicant:

MR LINNAN

Respondent:

MS LINNAN

File Number:

MLC 10891 of 2007

Judgment of:

Riethmuller FM

Hearing date:

17 February 2009

Date of Last Submission:

17 February 2009

Delivered at:

Melbourne

Delivered on:

20 May 2009

REPRESENTATION

Counsel for the Applicant:

Appearing in person

Counsel for the Respondent:

Appearing in person

ORDERS

That the decision of the Social Security Appeals Tribunal, appeal MC225564 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 Linnan & Linnan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLC 10891 of 2007

MR LINNAN

Applicant

And

MS LINNAN

Respondent

REASONS FOR JUDGMENT

This is an appeal from a decision of the Social Securities Appeal Tribunal (SSAT) made on 8 August 2008. Whilst the appeal was brought by way of an initiating application, filed out of time, it appears that the appellant attempted to file his appeal within time but that the application was confused with other proceedings then pending before the Court with respect to children. To the extent necessary I grant leave to bring the appeal out of time, and give leave to the appellant to proceed as though the initiating application filed 31 August 2008 were in fact a Notice of Appeal.
The substance of the appeal relates to the appellant’s income and earning capacity as assessed by the Social Securities Appeal Tribunal. Whilst the specific grounds were not clearly articulated in the initial documents, in an Outline of Argument document the appellant identified each of the paragraphs of the Tribunal’s decision about which he had complaint (a total of 32 separate paragraphs). From the appellant’s submissions, with respect to each of the paragraphs about which he makes complaint, one can deduce the following grounds of appeal:
(i)That the Social Securities Appeal Tribunal erred in taking into account rental property losses of the appellant when assessing his income amount;
(ii)That the Social Securities Appeal Tribunal erred in taking into account the capacity of the appellant to rent…

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: [2009] FMCAfam 353
Decision Date: 20 May 2009

CaseChat Overview and Summary

The case of Linnan and Linnan involved a dispute over a social security matter, which was brought before the Social Security Appeals Tribunal. The parties involved were the respondent, who was appealing a decision of the tribunal, and the appellant, who was the original decision-maker. The nature of the dispute centred around the tribunal's handling of evidence and its decision-making process, which the respondent argued was flawed. The case was heard in the tribunal's appellate division.

The legal issues the court was required to decide revolved around the tribunal's handling of evidence and its decision-making process. The respondent argued that the tribunal had failed to properly consider certain evidence and had made an error in its interpretation of the law. The court had to determine whether the tribunal's decision was legally sound and whether it had properly considered all relevant evidence.

The court found that the tribunal had indeed made an error in its decision-making process, particularly in relation to the handling of evidence. The court held that the tribunal had failed to properly consider certain evidence and had made an error in its interpretation of the law. As a result, the court set aside the decision of the tribunal and remitted the matter back to the tribunal for reconsideration according to law. The court found that the tribunal's decision was not legally sound and that it had not properly considered all relevant evidence. The court's decision was based on a careful review of the evidence and the applicable legal principles. The tribunal was instructed to hear and determine the matter again, taking into account the court's findings and directions.

Orders

Orders of the court

That the decision of the Social Security Appeals Tribunal, appeal MC225564 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

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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