Newman & Caldwell (SSAT Appeal)

[2009] FMCAfam 496

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NEWMAN & CALDWELL (SSAT Appeal) [2009] FMCAfam 496

CHILD SUPPORT – Appeal from SSAT– consideration of ‘just and equitable’.

CHILD SUPPORT – Departure application – special circumstances – school fees.

Administrative Appeals Tribunal Act 1975, s.40
Child Support (Assessment) Act 1989, s.117
Child Support (Registration and Collection) Act 1988, s.110G
Family Law Act 1975

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; [1947] 2 All ER 680 (1947) 45 LGR 635; (1948) LJR 190; (1947) 112 JP 55; (1947) 177 LT 641; (1947) 63 TLR 623; (1948) 63 TLR 623
Black & Kellner (1992) FLC ¶92-287; (1992) 15 Fam LR 343; (1992) 106 FLR 154 (1992) 106 FLR 154
Burton v Minister for Immigration [2008] FCA 1464
Coon v Cox (1994) FLC ¶92-464; (1993) 116 FLR 166; (1993) 17 Fam LR 692
F & S [2003] FMCAfam 531
Humphries & Berry (SSAT Appeal) [2008] FMCAfam 409
Lightfoot v Hampson (1996) FLC ¶92-663; (1996) 20 Fam LR 69; 129 FLR 444
Mee & Ferguson [1986] FamCA 3; (1986) FLC ¶91-716; (1986) 10 Fam LR 971; 84 FLR 179
Minister for Immigration v Le [2007] FCA 1318; (2007) 164 FCR 151; (2007) 242 ALR 455; (2007) 97 ALD 112
PJ v Child Support Registrar (SSAT Appeal) [2007] FMCAfam 829; (2007) 38 Fam LR 31; (2007) FLC ¶98-035
Presard v Minister for Immigration [1985] FCA 47; (1985) 6 FCR 155; 65 ALR 549; (1985) 7 ALN N79
SZIAI v Minister for Immigration [2008] FCA 1372; (2008) 104 ALD 22
Tyagi & Meares (SSAT Appeal) [2008] FMCAfam 886; (2008) 39 Fam LR 604
Wild v Ballard (1997) FLC ¶92-771; (1997) 22 Fam LR 291

Appellant: MS NEWMAN

Respondent: MR CALDWELL

File Number: MLC 7922 of 2008

Judgment of: Riethmuller FM

Hearing date: 19 February 2009

Date of Last Submission: 19 February 2009

Delivered at: Melbourne

Delivered on: 20 May 2009

REPRESENTATION

Counsel for the Appellant: Mr Grant

Solicitors for the Appellant: CE Family Lawyers

Counsel for the Respondent: Respondent appearing in person

ORDERS

1. That the decision of the Social Security Appeals Tribunal, appeal PC26697 be set aside.

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

3. Any application for costs be brought within 28 days.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLC 7922 of 2008

MS NEWMAN

Appellant

And

MR CALDWELL

Respondent

REASONS FOR JUDGMENT

1. The appellant and the respondent are the parents of 2 children, born in May 1994 and July 1996 respectively.  A child support assessment commenced in May 2005 and was registered for collection by the Child Support Agency in November 2007.  Under the current assessment the respondent is liable to pay child support to the appellant for the

   
   

   2 children.  The appellant lives with the children in Melbourne and the respondent lives in Perth.

2. The relevant assessment issued on 3 October 2007 based upon a child support income amount on the part of the respondent of $79,500. As a result of an application under Part VIA a senior case officer of the Child Support Agency decreased the child support income amount for the respondent to $67,500 on 5 November 2007. On 22 November 2007 the appellant lodged an objection to this decision. On 5 December 2007 the respondent also lodged an objection to this decision. On 25 January 2008 an objections officer altered the assessment through the period 3 October 2007 to 31 December 2008, setting the respondent’s child support income amount at $67,500 and increasing the annual rate by $17,698 to account for the costs of the child attending a private college in Melbourne.

3. On 22 February 2008 the respondent lodged an appeal to the SSAT. The SSAT made a decision on 23 July 2008 reducing the annual rate of child support for the period 3 October 2007 to 17 December 2007 by $17,698.  For the period 19 December 2007 to 31 December 2007 the SSAT reduced the assessment by the amount of the school fees, but increased the child support income amount for the respondent to $75,000 per annum.

4. Before the Tribunal there were three issues:

   (i)The determination of an appropriate assessment of the income and earnings of the respondent;

   (ii)Whether an adjustment should be made for the costs of travel between Perth and Melbourne; and

   (iii)Whether any adjustment should be made for school fees.

5. The substantive findings of the Tribunal are contained in paras.63 and 64 of the decision as follows:

   63. The Tribunal was satisfied that for the period 3 October 2007 to 18 December 2007 the administrative assessment should be changed to better reflect [the respondent’s] income.  On 5 November 2007 the CSA senior case officer set [the respondent’s] child support income amount for this period at $67,500.  Mr Caldwell stated he thought this was a fair reflection of his income at the time and was prepared to pay child support based on this income.  Accordingly, the Tribunal determined that [the respondents’] child support income amount for the period 3 October 2007 to 18 December 2007 should be set at $67,500 per annum.  Having found that [the respondent] had already paid in full [the child’s] school fees for the 2007 school year, the Tribunal also determined that he should not be required to pay any additional monies associated with [the child’s] school fees during this assessment period.

   64. For the period commencing 19 December 2007 the Tribunal found [the respondent’s] income from employment to be $75,000 per annum and this amount was to be used as [the respondent’s] child support income amount for the remainder of the child support period (that is, from 19 December 2007 to 31 December 2008).  The Tribunal also found that for this period:

   (a) a nominal value of [the respondent’s] limited access to private use of a company car and mobile phone is between $1,000 and $1,500 per annum;

   (b) [The respondent] has the capacity to contribute $5,000 per annum to [the child’s] school fees in addition to his monthly rate of child support payable based solely on his and [the appellant’s] incomes; and

   (c) [The respondent] spends approximately $6,500 per annum on maintaining regular contact with his children.

   From these findings, the Tribunal concluded that the cost of [the respondent’s] maintaining contact with the children equates to, or offsets, his liability to pay $5,000 school fees for [the child] plus the nominal value of his access to limited private use of a company car and mobile phone.  Accordingly, the Tribunal determined that for the period 19 December 2007 to 31 December 2008 [the respondent’s] child support income amount is to be set at $75,000 and any additional contribution for [the child’s] school fees is to be offset against his expenses for contact and no additional payments (other than those arising from his child support income amount) are to be made by [the respondent] during this period.  

6. The appellant made 3 complaints, in substance, in her Amended Notice of Appeal and raised a further ground at hearing:

   (i)That the Tribunal failed to appropriately deal with the question of the respondent’s income;

   (ii)That the Tribunal failed to deal with the question of school fees according to law;

   (iii)That the Tribunal failed to properly determine what was a just and equitable outcome, in that it failed to have regard to relevant considerations; and

   (iv)That the Tribunal failed to allow the appellant the opportunity to be heard on the question of whether or not the decision should extend beyond December 2008. 

Ground 1 – Income of the Respondent.

1. The Tribunal recounted and accepted the respondent’s evidence as to his income, at various points in its decision.  The Tribunal said:

   21. [The respondent] said that:

   (a) prior to separation from [the appellant] in 2005, he worked in his own business [business name], managing one or two building projects a year and subcontracting to another building firm [G Constructions];

   (b) after separation he was unable to continue with his own business, not taking on any new work, due to part time caring commitments for his children and his own state of emotional ill health;

   (c) in January 2007 [the appellant] and the two children moved to Melbourne to live;

   (d) on 19 December 2007 he became a permanent PAYE (pay as you earn) employee with [G Constructions] on a salary of $75,000 per annum; and

   (e) he also has access to a work vehicle for driving to and from work and some out of hours use and [G Constructions] pays for his mobile phone use for business via a capped plan.

   22. The Tribunal accepted that [the respondent’s] evidence as outlined above.

   …

   25. The Tribunal was satisfied that there are special circumstances in this case, being facts peculiar to this particular case, which sets it apart from other cases.  In particular, the Tribunal found there are special circumstances in this case because:

   (a) since 19 December 2007 [the respondent’s] circumstances have changed and he is no longer operating his own business but is now a permanent PAYE employee;

   (b) in January 2007 the children relocated to Victoria with their mother and [the respondent’s] direct caring responsibilities and contact costs have changed;

   (c) an administrative assessment based on a child support income amount of $14,281 was not an accurate reflection of [the respondent’s] capacity to pay child support for [the children].

   Accordingly, the Tribunal found [the respondent’s] circumstances are out of the ordinary and are special circumstances for the purposes of the Assessment Act.

   …

   29. The Tribunal has already found that [the respondent] became a PAYE employee for [G Construction] on 19 December 2007 and that he no longer operates his own building business (see paragraph 25 above).  The Tribunal accepted [the respondent’s] evidence that since 19 December 2007 he has not received income from self-employment, and that his current gross income from employment is $75,000 per annum, and found accordingly.

   30. It is difficult to assign a precise dollar value to the benefits received by [the respondent] from his limited access to private use of a company motor vehicle and mobile phone.  In respect of the assessment of fringe benefits for child support assessment purposes, part 2.6.14 of the Guide states, among other things:

   For child support assessments commencing after 30 June 2000, the reportable fringe benefits total included in an employee’s group certificate (being the ‘grossed up taxable value’) is included in the parent’s adjusted taxable income and used to calculate the child support assessment. …

   For child support assessments commencing after 30 June 2000, the reportable fringe benefits total included in an employee’s group certificate (being the ‘grossed up taxable value’) is included in the parent’s adjusted taxable income and used to calculate the child support assessment.

   It is therefore unlikely that a parent’s reportable fringe benefits will be a special circumstance that will warrant a further increase in their child support assessment after 1 July 2000.

   …

   In deciding if the benefit provides the person with an additional financial capacity CSA can consider the individual circumstances of the case including:

   ·    Whether the fringe benefit is unusual, or peculiar to the parent’s employment.

   ·    Whether the fringe benefit is one which cannot be ‘repackaged’ or converted into salary or wages; and

   ·    Whether the parent would ordinarily have incurred a similar level of expense for the same kind of ‘benefit’ provided by the reportable fringe benefit.

   …

   CSA will not ‘gross up’ the value of a benefit [if the benefit is not a “reportable fringe benefit”].  CSA will consider whether the parent could restructure their remuneration package to take the benefit as wages and be in a position to use those monies to meet the child’s needs.  The final decision will depend on the circumstances of the case and any other reasons under consideration.

   31. No evidence was provided that [the respondent’s] limited use of a company motor vehicle and company mobile phone are “reportable fringe benefits” under the Income Tax Assessment Act 1936 which might be expected to appear on his group certificate.  Having regard to the Guide and to the limited extent of [the respondent’s] private use of his company car and mobile phone were quite small, the Tribunal decided to attribute a nominal value of between $1,000 and $1,500 as the total value of these benefits.

   …

   47. The Tribunal was satisfied that the provisions of ss.117(7B) of the Assessment Act in regard to earning capacity do not apply.  Prior to separation [the respondent] subcontracted [G Construction] as well as being self employed and managing his own business [business name].  The Tribunal accepts that following separation [the respondent] had difficulty maintaining his own business in addition to his subcontracting work due to increased caring responsibilities for his children and depression and anxiety from the effects of separation.  As stated in earlier in this decision, the Tribunal found [the respondent] is employed as a PAYE employee with [G Construction] for an annual income of $75,000, and also receives “fringe benefits” with a nominal value of between $1,000 and $1,500.

   48. In considering the commitments of each parent the Tribunal accepted [the respondent’s] evidence that he has a significant mortgage on his house, which is currently being paid by a sister, and other debts of approximately $25,000 to family.  However, based on section 3 of the Assessment Act (see paragraph 15 above), the Tribunal found that [the respondent’s] debts should not take priority over his responsibilities to provide financial support for [the children].   

2. In substance, the Tribunal accepted the respondent’s evidence that his income consisted entirely of an annual income of $75,000 and some limited fringe benefits. The case for the appellant was that the respondent earned far more. In particular, she referred to the appellant’s financial statement provided to the Tribunal in September 2007 which showed that he had a mortgage on his home of $818,764 which required a minimum monthly repayment of $4460. He also had an overdraft of approximately $80,000.

3. It is apparent that the respondent could not meet the repayments on his debts from the salary the Tribunal found he was receiving (at least whilst paying tax and meeting any basic living expenses). The appellant complained that the explanation that the respondent’s sister was paying his mortgage was unconvincing as she alleged that the sister is a fitness instructor and would not have the financial capacity to meet the mortgage payments. Significantly, no enquiries appear to have been made of the bank to obtain details of the representations made by the respondent to obtain the loan that he is servicing. In addition, there was evidence before the Tribunal that, on 23 October 2006, the respondent had signed a letter addressed to a school in Melbourne confirming a telephone conversation whereby he agreed to pay the accounts in relation to one of the children: the fees for that school are over $17,000 per annum.

4. Counsel for the appellant made submissions that the Tribunal’s findings of fact, in the circumstances of this case, were unreasonable and ought to be set aside. Ultimately, findings of fact are a question for the Tribunal. Appeals lie only on questions of law. It was not put by Counsel that the findings of fact were so unreasonable that no reasonable Tribunal member could have come to that decision: see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; [1947] 2 All ER 680 (1947) 45 LGR 635; (1948) LJR 190; (1947) 112 JP 55; (1947) 177 LT 641; (1947) 63 TLR 623; (1948) 63 TLR 623. However, considerable complaints were made having regard to the decisions of the Court in Black & Kellner (1992) FLC ¶92-287; (1992) 15 Fam LR 343; (1992) 106 FLR 154 (1992) 106 FLR 154, Humphries & Berry (SSAT Appeal) [2008] FMCAfam 409, and similar cases. It appears that in substance the first argument of Counsel was that the Tribunal ought to have drawn inferences against the respondent in light of the state of the evidence. This is a question of fact for the Tribunal.

5. Counsel for the appellant then proceeded to put a further argument, not clearly articulated in the grounds of appeal.  That was, that the Tribunal had erred in failing to investigate the claims that the respondent’s sister was paying the mortgage and failed to investigate representations the appellant may have made to the bank.  This argument raises a difficult and important issue with respect to the operation of the SSAT pursuant to the provisions of the Child Support (Registration and Collection) Act 1988. Unfortunately, the issue was not squarely raised in the grounds of appeal, nor was it articulated in any outline of argument (the appellant having failed to comply with directions for filing an outline of argument), nor did Counsel refer to the seminal authority on this issue (Presard v Minister for Immigration [1985] FCA 47; (1985) 6 FCR 155; 65 ALR 549; (1985) 7 ALN N79), nor did Counsel refer to the operation of comparable Tribunals such as the AAT (and in particular, the operation of s.40 of the Administrative Appeals Tribunal Act 1975).

6. As with court proceedings, many of the documents, and much of the relevant evidence, that a party may wish to rely upon before the Tribunal will not be within the possession or power of that particular party. The party is then reliant on the court or tribunal’s coercive processes to enable them to obtain and place before the tribunal the relevant evidence. Under the provisions of the Child Support (Registration and Collection) Act 1988 a party to a proceeding before the SSAT does not have direct access to such processes in the way that a party before a court could issue a subpoena. The operation of s.40 of the Administrative Appeals Tribunal Act 1975, in practice, allows a party to issue a summons to a witness to obtain relevant evidence, relying upon the coercive powers of that tribunal.  No similar processes appear to have been established in the SSAT, leaving the parties reliant upon the member choosing to instigate the process to obtain evidence.

7. This is not dissimilar to the operation of tribunals such as the Migration Review Tribunal or the Refugee Review Tribunal.  However, in cases before the latter tribunals, usually the relevant evidence will be within the possession or power of the person appearing before the tribunal if it is able to be obtained at all.  To the extent that relevant material has been in the possession of the Department (provided it is directly relevant to the decision to be made), courts have found that it is incumbent on the tribunal to make appropriate enquiries (for example, see Minister for Immigration v Le [2007] FCA 1318; (2007) 164 FCR 151; (2007) 242 ALR 455; (2007) 97 ALD 112; Burton v Minister for Immigration [2008] FCA 1464 and SZIAI v Minister for Immigration [2008] FCA 1372; (2008) 104 ALD 22).

8. In child support cases before the Social Securities Appeal Tribunal, the issues in dispute will almost be invariably be between 2 citizens concerning facts and circumstances of which the relevant department (Child Support Agency) will have no direct knowledge and often little relevant information. 

9. It appears to me that this issue, when it is properly argued, requires careful consideration, having regard to the relevant law and circumstances of a particular case. 

10. As the appeal must be allowed for reasons relating to the school fees, I have determined that it is appropriate that I decline to deal with this issue on this appeal as it has not been properly raised, the relevant material is not entirely before the Court, I have received no real assistance through the submissions of the parties, and the procedures by which the parties have brought the issue to the Court have not allowed for the Child Support Agency to be given notice to enable the Registrar to make submissions if he saw fit.

Ground 2 – The school fees

1. The second ground of appeal relates to the method by which the Tribunal dealt with school fees. The parties had given a written consent to the school, and an undertaking to be responsible for any accounts with respect to their children. Importantly, the respondent had undertaken to be responsible for any accounts with respect to one of the children and the appellant is to be responsible for the other child’s fees. There is no question that the children are attending a school in Melbourne by way of agreement of the parties.

2. The Tribunal’s findings in this regard were as follows:

   43. In considering the proper needs of [the children] the Tribunal was informed by the parties that both [of the children] attend [the school] in Melbourne, a co-educational private school, and that [the respondent] paid [the child’s] school fees for 2007 school year.  [The respondent] and [the appellant] both stated that it had been their mutual intention for their children to attend private schools, and that on separation they had agreed that [the appellant] would meet the cost of [child 2’s] school fees and [the respondent] would meet the cost of [child 1’s] school fees.  [The respondent] told the Tribunal that by mutual agreement between himself and [the appellant] the children had been enrolled in [a] College in Perth prior to their relocation to Melbourne and that the school fees for [the college in Perth] were approximately $4,000 or $5,000 per year.  [The appellant] stated that she had been unable to find a private co-educational school in Melbourne, other than a Catholic school which [the respondent] did not accept, with fees comparable with those of [the college in Perth].  She said that both she and [the respondent] attended the interview at [the school] and had both signed the enrolment forms.  [The appellant] told the Tribunal that [the respondent] had assured her that he would pay [child 1’s] school fees at [the school] for as long as he could.  [The respondent] added that if [child 1] attended a private school in Melbourne with similar fees to those of [the college in Perth] he would be able to meet those costs and would see it as his responsibility, but did not consider that on his salary he could afford the [school] fees.

   44. Having considered the evidence, the Tribunal found that:

   (a) as per the parent’s original agreement, [the respondent] is responsible for the payment of [child 1’s] school fees and [the appellant] is responsible for [child 2]s] school fees;

   (b) in 2007 [the respondent] paid [child 1’s] school fees for the 2007 school year; and

   (c) given:

   (i) the current income of both parents;

   (ii) the children’s enrolment by both parents [S] College in Perth prior to their relocation to Melbourne; and

   (iii) the availability of alternative private education options in Victoria,

   [The respondent’s] financial responsibility for [the child’s] school fees should not exceed $5,000 per annum (the amount of the [S] College fees) in addition to the assessment of child support payable based on his current child support income amount.

3. It appears that the Tribunal, having made findings with respect to the income of the respondent, proceeded to form its own view as to what a reasonable level of school fees ought to be for the child, and then made findings based upon those fees. The provisions of the Child Support (Assessment) Act 1989 do not provide for the Tribunal to determine what is a reasonable standard of education for the children in circumstances such as this, but require the Tribunal to first determine what the parties had intended and secondly, determine the extent to which each of them can contribute to the relevant expenses. The relevant ‘special circumstance’ set out in s.117 of the Act is:

   117(2)(b) That in the special circumstances of the case, the costs of maintaining the child are significantly affected …

   (ii)…because the child is being cared for, educated or trained in the manner that was expected by his or her parents.

4. This was referred to by Bryant, CFM (as her Honour then was) in

   
   F & S

   [2003] FMCAfam 531, where her Honour said:

   15. The principles that emerged from the cases in relation to school fees can be summarised as follows:

   a) where the non-custodian has agreed to the child attending a private school, that person is liable to contribute to the fees so long and to the extent that he or she has a reasonable financial capacity to continue to do so;

   b) where the non-custodian has not agreed to the child attending such a school, he or she is not liable to contribute to those expenses unless there are reasons relating to the child's welfare which dictate attendance at the school rather than a non-private school. Then the non-custodian is required to contribute to the extent that he or she has a reasonable financial capacity to do so; and

   c) the mere fact that a non-custodian can afford the fees or is a wealthy person is not in itself a reason for imposing that liability. Although Mee v Ferguson was decided prior to the introduction of the Child Support (Assessment) Act, the reasoning has been applied to child support cases [see Lightfoot v Hampson (1996) FLC ¶92-663 and Wild v Ballard (1997) FLC ¶92-771]."

5. As early as 1986 the Full Court in Mee & Ferguson [1986] FamCA 3; (1986) FLC ¶91-716; (1986) 10 Fam LR 971; 84 FLR 179, said:

   75. Where the non-custodian has agreed to the child attending…a school that person is liable to contribute to the fees involved so long, and to the extent, that he or she has a reasonable financial capacity to continue to do so.

   This is the basis upon which the Full Court approached the issues in Wild v Ballard (1997) FLC ¶92-771; (1997) 22 Fam LR 291: see also Lightfoot v Hampson (1996) FLC ¶92-663; (1996) 20 Fam LR 69; 129 FLR 444, Coon v Cox (1994) FLC ¶92-464; (1993) 116 FLR 166; (1993) 17 Fam LR 692 and the commentary at ¶8-350 in the CCH Child Support Handbook.

6. In this case there is ample evidence that the manner in which the parents expected the child to be educated was at a particular private college in Melbourne, following their move from Perth.  The fees for the private college in Melbourne were readily ascertainable by the Tribunal, being a sum in excess of $17,000 per annum.

7. As a result the only real question for the Tribunal was the extent to which the respondent could contribute to those fees. It is not for the Tribunal to determine whether fees at any particular rate are appropriate in circumstances where the parties have already made that decision for themselves. That is, the Act operates to provide a mechanism by which child support payments may be adjusted to reflect the actual expenses for educating children in the way the parents had intended, having regard to their capacity to pay. The Act does not provide a mechanism whereby the Tribunal may determine what is a reasonable standard of education or which is an appropriate school for the children. If there is to be determination as to what school is appropriate for the children, that is a parenting question that must be dealt with by the Court under the Family Law Act 1975.

8. In the circumstances, the Tribunal have erred in law in this case in that they have come to the conclusion that the child ought to receive an education the costs of which are similar to the school fees in Perth, rather than noting the cost of the current school fees in Melbourne (at the school agreed between the parties) and determining the extent to which the respondent could contribute to those fees.

9. In the circumstances, I find that the Tribunal has erred in law in that it has approached the task as one of determining what a reasonable standard of private schooling would be for the children, rather than accepting that the parents have chosen a particular school and then determining the extent to which the respondent could contribute to the fees involved in having the child attend that school.

10. The appellant also says that the Tribunal has acted without evidence in concluding that there are alternative private education options available for the children. The only evidence before the Tribunal was that of the mother to the effect that there were no other private schools that were co-educational with comparable fees. In this case, once the law is correctly applied, it does not appear to me to be relevant whether or not there are other schools of different fee levels as the parents have agreed on this particular school and the only question is the extent to which the respondent ought to be obliged to contribute, based entirely upon his financial capacity to do so, not questions of the appropriateness of the particular school.

11. As a result, I find that the appellant has succeeded with respect to this ground of appeal.

Ground 3 – Consideration of the ‘just and equitable’ requirement

1. The appellant says that the Tribunal failed to properly consider the financial circumstances of the parties in the manner required under s.117(4) having regard to PJ v Child Support Registrar (SSAT Appeal) [2007] FMCAfam 829; (2007) 38 Fam LR 31; (2007) FLC ¶98-035 and Tyagi & Meares (SSAT Appeal) [2008] FMCAfam 886. In this case the only consideration given to the needs of the 2 children was the discussion with respect to school fees. There are no findings as to the reasonable expenses in caring for the children nor the reasonable expenses of the parties in providing for their own necessary commitments. It is not apparent from the face of decision what the monthly rate of child support would ultimately be, based upon the findings of the Tribunal. It is difficult to see how the Tribunal have properly discharged the requirements to consider a ‘just and equitable’ determination in the absence of consideration of these central factors. I therefore find that this ground is made out.

Further Ground

1. With respect to the final ground, the appellant claims that the Tribunal ought to have given her an opportunity to be heard on the question of whether or not the decision should extend beyond December 2008. I do not have the transcript of the hearing in evidence and therefore I am unable to determine precisely how the Tribunal conducted the hearing in this regard. In the absence of this evidence, I am not persuaded that the Tribunal have erred in this regard.

Consequences of allowing the appeal

1. In this matter the appellant submits that she no longer has confidence in the SSAT and asks that further hearing be held in this Court for the purpose of making findings of fact under s.110G of the Child Support (Registration and Collection) Act 1988.  That section provides:

   s.110GCourts may make findings of fact

   (1)  If a party to a proceeding before the SSAT appeals to a court under this Subdivision, the court may make findings of fact if:

   (a)  the findings of fact are not inconsistent with findings of fact made by the SSAT (other than findings made by the SSAT as the result of an error of law); and

   (b)  it appears to the court that it is convenient for the court to make the findings of fact, having regard to:

   (i)  the extent (if any) to which it is necessary for facts to be found; and

   (ii)  the means by which those facts might be established; and

   (iii)  the expeditious and efficient resolution of the whole of the matter to which the proceeding before the SSAT relates; and

   (iv)  the relative expense to the parties of the court, rather than the SSAT, in making the findings of fact; and

   (v)  the relative delay to the parties of the court, rather than the SSAT, in making the findings of fact; and

   (vi)  whether any of the parties considers that it is appropriate for the court, rather than the SSAT, to make the findings of fact; and

   (vii)  such other matters (if any) as the court considers relevant.

   (2)  For the purposes of making findings of fact under subsection (1), the court may:

   (a)  have regard to the evidence given in the proceeding before the SSAT; and

   (b)  receive further evidence.

   (3)  Subsection (1) does not limit the court's power under paragraph 110F(2)(b) to make an order remitting the case to be heard and decided again by the SSAT.

2. The respondent opposes further hearing in this Court, stating that he resides in Perth, that a further hearing would be expensive if held in Court and that he was happy with the Tribunal process.

3. The appellant points to the lack of subpoenaed material and enquiry by the SSAT and the potential expense of a further appeal.

4. Considering the case in terms of s.110G(1)(b) I note that extensive fact-finding is required, both in relation to the income of the respondent, and the financial circumstances of both of the parties. The facts might be established not only by evidence of the parties, but also documents obtained by third parties and potentially evidence of the husband’s sister. The parties would not receive a hearing before the Court until late in the year, but presumably would receive a re-hearing in the SSAT in a relatively short time. The expense of proceeding in Court would be far greater, in that the matter is likely to take more than one day if heard before the Court, particularly if the respondent appears by way of video-link from Perth.

5. Ultimately, I am not persuaded that it is appropriate that I should allow the matter to be the subject of significant further evidence in the Court for the basis of making a determination, rather than remitting the application for re-hearing in the SSAT.

6. As a result I set aside the decision of the SSAT and remit the matter for hearing and determination according to law.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Deputy Associate:  Katherine Sudholz

Date:  20 May 2009