Mills and Mills (SSAT Appeal) - [2011] FMCAfam 181

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MILLS & MILLS (SSAT APPEAL)

[2011] FMCAfam 181

CHILD SUPPORT – Appeal from decision of SSAT – error of law – interpretation of consent order regarding discharge of arrears of child support – whether order ambiguous – reference by Tribunal to external sources of evidence to interpret order – whether evidence referenced by Tribunal was legally admissible – no error found – appeal dismissed.

Child Support (Registration and Collection) Act 1988, ss.80(1), 110B, 110E, 110F, 110G, 116(2)
Child Support (Assessment) Act 1989, ss.3, 4(2), 4(3), 58(2), 58A, 95

Neal v Secretary, Department of Transport (1980) 3 ALD 97
Comcare v Etheridge [2006] FCAFC 27
Blackwood Hodge (Australia) Pty Ltd v Collector of Customs (No.2) (1980) 33 ALD 38
Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244
Apthorpe v Repatriation Commission (1987) 13 ALD 656
Re Minister for Immigration & Multicultural Affairs: Ex Parte Applicant S20/2002 (2003) 198ALR 59
Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprise Pty Ltd [1993] 43 FCR 280
LDME & JMA [2007] FMCAfam 712
Repatriation Commission v Nation (1995) 57 FCR 25
Kirkpatrick v Kotis [2004] NSWSC 1265
Hacherl & Berrios [2010] FMCAfam 668
Cawthorn v Cawthorn (1998) FLC 92-805
Codelfa Constructions Proprietary Limited v State Rail Authority of New South Wales (1982) 149 CLR 337

Applicant:

MR MILLS

Respondent:

MS MILLS

File Number:

ADC 4824 of 2009

Judgment of:

Brown FM

Hearing date:

29 October 2010

Date of Last Submission:

29 October 2010

Delivered at:

Adelaide

Delivered on:

11 March 2011

REPRESENTATION

Counsel for the Applicant:

Mr McQuade

Solicitor for the Applicant:

Adey Lawyers

Counsel for the Respondent:

Ms Ross

Solicitor for the Respondent:

Legal Services Commission of South Australia

ORDERS

The Notice of Appeal (Child Support) filed on 7 December 2009 is dismissed.
The stay order made pursuant to section 111C of the Child Support (Registration and Collection) Act 1988 made on 17 February 2010 is dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADC 4824 of 2009

MR MILLS

Applicant

And

MS MILLS

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings were commenced by Mr Mills “the applicant”. The respondent in the proceedings is Ms Mills “the respondent”. The proceedings are concerned with a decision of the Social Securities Appeal Tribunal (the SSAT) made on 10 November 2009.
On 7 December 2009, the applicant filed a notice of appeal, in this court, in respect of that decision. He seeks orders that the decision of the SSAT be set aside and in lieu thereof the court substitute its own decision.
Primarily the case concerns the interpretation of an order made by the Family Court at Brisbane on 20 August 1999 which related to the discharge of arrears of child support owed by the applicant to the respondent. Questions have arisen regarding the ambit…

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: [2011] FMCAfam 181
Decision Date: 11 March 2011

CaseChat Overview and Summary

Mills and Mills were involved in a dispute concerning child support, which was heard by the Social Security Appeals Tribunal (SSAT). The appellant, Mills, sought to appeal the respondent's decision to not stay the child support assessment in place, which was made pursuant to section 111C of the Child Support (Registration and Collection) Act 1988. The appellant argued that the decision was incorrect and that the child support assessment should have been stayed.

The tribunal was required to determine whether the SSAT had erred in law in dismissing the appeal against the decision not to stay the child support assessment. This involved considering the relevant legislative provisions and the evidence presented by both parties.

The tribunal found that the SSAT had not erred in law and that the decision not to stay the child support assessment was correct. The tribunal found that the appellant had not provided sufficient evidence to support a stay of the assessment, and that the SSAT was entitled to reach the decision it did. The tribunal dismissed the appeal and affirmed the decision of the SSAT.

The tribunal dismissed the Notice of Appeal filed by the appellant and the stay order made by the SSAT. The tribunal found that the SSAT had not erred in law and that the decision not to stay the child support assessment was correct. The tribunal affirmed the decision of the SSAT and dismissed the appeal.

Orders

Orders of the court

The Notice of Appeal (Child Support) filed on 7 December 2009 is dismissed.

The stay order made pursuant to section 111C of the Child Support (Registration and Collection) Act 1988 made on 17 February 2010 is dismissed.

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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