Potter & Burbage (SSAT Appeal) - [2010] FMCAfam 1009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

POTTER & BURBAGE (SSAT APPEAL) [2010] FMCAfam 1009

CHILD SUPPORT – Appeals regarding child support – SSAT.

Child Support (Assessment) Act 1989, ss.43, 98(3), 98C, 98S, 117

Hendy& Deputy Child Support Registrar & Webb [2001] FamCA 632; (2001) 27 Fam LR 641; (2001) 164 FLR 236
PJ & Child Support Registrar (SSAT Appeal) [2007] FMCAfam 829; (2007) 38 Fam LR 31
PVO & RMO [2005] FamCA 1196

Applicant: MR POTTER

Respondent: MS BURBAGE

File Number: MLC 7340 of 2007

Judgment of: Riethmuller FM

Hearing date: 2 February 2010

Date of Last Submission: 28 June 2010

Delivered at: Melbourne

Delivered on: 7 October 2010
REPRESENTATION

Counsel for the Appellant: The Appellant appearing in person

Counsel for the Respondent: The Respondent appearing in person
ORDERS
(1)The decision of the Social Security Appeals Tribunal, appeal MC228972 be set aside.
(2)The matter be remitted to a differently constituted Social Security Appeals Tribunal to hear and determine according to law.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE
MLC 7340 of 2007

MR POTTER
Applicant
And

MS BURBAGE
Respondent
REASONS FOR JUDGMENT
1.This is an appeal from a decision of the Social Security Appeals Tribunal (‘SSAT’), dated 17 June 2009, with respect to the appellant’s child support assessment.
2.The precise orders the appellant seeks are set out in his Notice of Appeal filed 28 July 2009 in the following terms:
1. That the decision of SSAT be set aside and the court reinstate the original CSA decision; or
2. That the court apply the correct taxation years to the correct CSP [child support period] using the SSAT’s Calculations.

3.The appellant, on 20 September 2007, applied for a departure from an administrative assessment, requesting a decrease from 7 July 2006. His reasons for the departure included reduced income and the respondent’s earning capacity. The senior case officer made a decision in the appellant’s favour and departed from the administrative assessment on 19 March 2008. However, the respondent objected to the decision and the objections officer partially allowed her objection on 15 July 2008. The appellant lodged an appeal from the decision to the SSAT.
4.On the hearing of the appeal the appellant argued four main issues:
a)That the SSAT erred in using his taxable income from the current tax year for the child support period;
b)That payments for a machinery lease connected to his business should not have been added to his income for the purposes of child support;
c)That the SSAT erred in finding that the respondent was not working due to health reasons; and
d)That the SSAT failed to have regard to financial benefits received by the respondent from her rental property.

5.Further issues were also raised which are deal with below.
6.The respondent filed a Notice of Cross-Appeal, claiming that the SSAT failed to deal with the…

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 1009
Decision Date

CaseChat Overview and Summary

This case involved an appeal from a decision of the Social Security Appeals Tribunal (SSAT) regarding a child support assessment. The appellant, Mr. Potter, argued that the SSAT had erred in using his taxable income from the current tax year for the child support period, including payments for a machinery lease in his income, finding that the respondent was not working due to health reasons, and failing to consider financial benefits received by the respondent from her rental property. The respondent filed a cross-appeal, claiming that the SSAT failed to deal with the issue of school fees according to the law.

The court found that the SSAT had not erred in using the current tax year's income for the current child support period, as the legislation allowed for such a departure. The court also found that the SSAT was correct in including the machinery lease payments in the appellant's income, as it was not a necessary business expense. In relation to the respondent's employment status, the court found that the SSAT's conclusion that the respondent was not working due to health reasons was supported by evidence. Lastly, the court found that the SSAT had considered the respondent's rental property interests and earnings.

However, the court found errors in the SSAT's assessment of the costs of the children and the appellant's taxable income. The court found that the SSAT had not considered the actual costs of the children and had erred in assessing child support at 150% of those costs. Additionally, the court found that the SSAT had made an arithmetic error in calculating the appellant's taxable income for 2008/2009, which worked in his favor.

Given the significant errors in the SSAT's assessment, the court set aside the decision and remitted the matter to a differently constituted SSAT to be heard and determined according to law.

Orders