Mabry & Mabry & Anor (SSAT Appeal) - [2010] FMCAfam 388

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MABRY & MABRY & ANOR (SSAT Appeal)

[2010] FMCAfam 388

CHILD SUPPORT – Appeal from SSAT – error of law – no matter of principle.

Child Support (Assessment) Act 1989, s.98C(1)(b)
Child Support (Registration and Collection) Act 1988, s.110G

Gyselman & Gyselman[1991] FamCA 93; (1992) FLC ¶92-279; (1991) 15 Fam LR 219
Mabry & Mabry [2005] FMCAfam 656

Appellant:

MR MABRY

First Respondent:

MS MABRY

Second Respondent:

CHILD SUPPORT REGISTRAR

File Number:

CAC 577 of 2008

Judgment of:

Riethmuller FM

Hearing date:

25 August 2009

Date of Last Submission:

25 August 2009

Delivered at:

Canberra

Delivered on:

23 April 2010

REPRESENTATION

Counsel for the Appellant:

The Applicant appearing in person

Counsel for the First Respondent:

The First Respondent appearing in person

Counsel for the Second Respondent:

Mr Orford

Solicitors for the Second Respondent:

Child Support Agency

ORDERS

That the appeal be allowed in part.
That clause 1(e) of the decision of the Social Security Appeals Tribunal, appeal [omitted] be set aside.
That the first respondent’s child support assessment for the support of L for the period 1 May 2010 until she attains 18 years of age be set at $180 per week.
That the weekly rate of child support for L be increased on 1 July each year, in accordance with variations in the third quarter weighted average consumer price from the previous year.
That the orders of FM Ryan be varied to require the appellant to pay half of the school fees for the male children to attend at M College until the completion of their secondary education.
That the appellant pay half of the school fees for L (but not more than a sum equivalent to half of the fees that would be charged for her to attend M College) until the completion of her secondary education.
That the appellant attend upon L’s school within 28 days and sign all necessary documents to assume responsibility directly to the school for the fees referred to in Order 6 herein.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRA

CAC 577 of 2008

MR MABRY

Applicant

And

MS MABRY

First Respondent

CHILD SUPPORT REGISTRAR

Second Respondent

REASONS FOR JUDGMENT

This is an appeal from a decision of the Social Securities Appeal Tribunal (SSAT) made on 17 December 2008 with respect to 3 children of the marriage, S born [in] 1990, B born [in] 1991 and L born [in] 1997.
This matter was previously before the court as an appeal from a decision of the SSAT made on 29 February 2008. On that occasion the matter was remitted to the SSAT to be re-heard.
The appellant sets out the following 5 grounds of appeal:
(i) An error of law has been made by the tribunal because it has asked wrong questions, considered matters which…

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: [2010] FMCAfam 388
Decision Date: 23 April 2010

CaseChat Overview and Summary

The parties involved in the Social Security Appeals Tribunal appeal were Mabry & Mabry & Anor. The dispute centred around the calculation of child support for their child, L, and the payment of school fees for their children. The appeal was heard in the Family Court of Australia. The appellants challenged the child support assessment and the school fees arrangement determined by the tribunal.

The primary legal issues that the court had to address were the appropriate calculation of the child support assessment for L and the correct arrangement for the payment of school fees for their children. The appellants argued that the child support assessment was incorrectly calculated and that the tribunal had erred in its determination of the school fees arrangement. The respondents maintained that the tribunal's decisions were correct and should be upheld.

The court found that the tribunal had erred in its calculation of the child support assessment for L, and therefore set aside the relevant clause of the tribunal’s decision. The court determined that the weekly child support should be set at $180 per week and should be indexed annually in line with the Consumer Price Index. Additionally, the court varied the orders to require the appellant to pay half of the school fees for the male children until the completion of their secondary education and for L, but not more than half of the fees that would be charged for her to attend M College. The appellant was also required to sign necessary documents to assume responsibility for L’s school fees.

Orders

Orders of the court

That the appeal be allowed in part.

That clause 1(e) of the decision of the Social Security Appeals Tribunal, appeal [omitted] be set aside.

That the first respondent’s child support assessment for the support of L for the period 1 May 2010 until she attains 18 years of age be set at $180 per week.

That the weekly rate of child support for L be increased on 1 July each year, in accordance with variations in the third quarter weighted average consumer price from the previous year.

That the orders of FM Ryan be varied to require the appellant to pay half of the school fees for the male children to attend at M College until the completion of their secondary education.

That the appellant pay half of the school fees for L (but not more than a sum equivalent to half of the fees that would be charged for her to attend M College) until the completion of her secondary education.

That the appellant attend upon L’s school within 28 days and sign all necessary documents to assume responsibility directly to the school for the fees referred to in Order 6 herein.

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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