RALPH & MEDLOCK (SSAT APPEAL)
[2010] FMCAfam 311
•28 May 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RALPH & MEDLOCK (SSAT APPEAL) | [2010] FMCAfam 311 |
| CHILD SUPPORT – Appeal from decision of SSAT – findings about special circumstances – findings about just and equitable circumstances. |
| Child Support (Assessment) Act 1989 Child Support (Registration and Collection) Act 1988 |
| Applicant: | MR RALPH |
| Respondent: | MS MEDLOCK |
| File Number: | BRC 6966 of 2009 |
| Judgment of: | Slack FM |
| Hearing date: | 11 March 2010 |
| Date of Last Submission: | 11 March 2010 |
| Delivered at: | Brisbane |
| Delivered on: | 28 May 2010 |
REPRESENTATION
The Applicant appeared on his own behalf.
| Solicitors for the Respondent: | Holloway Jenkins |
ORDERS
The Appeal from the Decision of the Social Security Appeals Tribunal dated 27 October 2009 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Ralph & Medlock is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 6966 of 2009
| MR RALPH |
Applicant
And
| MS MEDLOCK |
Respondent
REASONS FOR JUDGMENT
This is an appeal from the decision of the Social Security Appeals Tribunal (hereafter “the SSAT”) dated 2 October 2009.
The applicant (representing himself) sets out his grounds of appeal in his affidavit filed 8 March 2010. The affidavit does not set out with any particularity the grounds upon which he claims the SSAT erred in law.
As I understood the applicant’s arguments, he contended (in summary):
a)That the fact that the child has disabilities does not of itself result in a conclusion that special circumstances exist to found a ground for departure from the child support assessment and in this case the SSAT erred in coming to that conclusion.
b)If the SSAT did not err in coming to that conclusion, then the SSAT erred in coming to the determination that a departure from the administrative assessment was just and equitable as regards the child and each parent.
c)If the SSAT did not err in coming to that conclusion then it erred in the determination as to the extent to which that should occur.
The decision of the SSAT
The determination of the SSAT was that the SSAT decided to vary the decision of the objections officer made on 10 February 2009 and to substitute a decision that:
1. For the period 2 September 2008 to 31 January 2009,
Mr Ralph be assessed to pay child support an annual rate of $10,400.
2. For the period 1 February 2009 to 30 June 2010, Mr Ralph be assessed to pay child support an annual rate of $17,992.
Relevant background
The following facts and background do not appear to be in dispute.
The applicant and respondent are the parents of K born [in] 1999.
That at all material time the Child Support Agency (hereafter “the CSA”) has recorded the child as being in the greater than primary care of Ms Medlock and below regular care of Mr Ralph with Mr Ralph being a payer of child support.
The administrative assessment of child support for the period from
30 July 2008 to 29 October 2009 was based on an adjusted taxable income for Mr Ralph of $54,948 and for Ms Medlock of $64,000. It resulted in Mr Ralph having a liability for the payment of an annual rate of child support of $5,375 for the relevant child support period.
On 2 September 2008 the respondent made a departure application under Part 6A of the Child Support (Assessment) Act 1989 (hereafter “the Assessment Act”).
The respondent objected to the decision of the senior case officer on
14 November 2008 and on 10 February 2009 an objections officer partly allowed the objection.
It was from that decision that the applicant appealed to the SSAT on
17 March 2009.
The application was heard and determined on 19 June 2009.
Both the applicant and the respondent were represented by their solicitors in that hearing.
Both parties made further submissions to the SSAT (as set out in paras.7 and 8 of the reasons). The SSAT reconvened on 21 September 2009 and then made its decision.
The approach of the SSAT
Grounds for departure
The SSAT came to a conclusion that there were special circumstances to establish a ground for departure, pursuant to s.98C(1) of the Assessment Act.
The SSAT found there was a ground for departure having regard to the provisions of s.117(2)(b)(1A) of the Assessment Act.
That provision relevantly provides that a ground for departure is established if:
a)in the special circumstances of the case, the costs of maintaining the child are significantly effected:
i)because of special needs of the child.
To satisfy that ground for departure the SSAT needed to be satisfied:
a)that the child had special needs; and
b)the costs of maintaining the child are significantly effected.
Special needs are not defined in the Assessment Act but in this case, as I understand the position of the applicant, he does not dispute that the child has special needs. He disputes the finding that the costs of maintaining the child are significantly effected.
Relevantly the SSAT accepted the diagnosis of the medical specialists who have diagnosed K with an autistic spectrum disorder with significant intellectual impairment. Having regard to the medical evidence before the SSAT, in my view, the SSAT was entitled to come to that conclusion.
As I understand the submissions of the applicant, he has always accepted that the child has autism (contrary to the comments of the SSAT (para.20 of the reasons) but that he has always contended that the consequences of the child’s autism did not result in the cost of maintaining him being greater than any other child and hence there was no basis for the finding that special circumstances existed due to the needs of the child.
Although the SSAT sets out the basis upon which they reached their conclusion about the additional monthly costs attributable to the special needs of the child, he submits that the evidence about the costs of the child came from the respondent and that it was clearly established before the SSAT that she had either exaggerated or falsified not only the claimed expenses but also the claimed amounts incurred in meeting those expenses.
It seems that the SSAT accepted the evidence of the respondent about the needs of the child.
The applicant (due to his financial circumstances) was unable to put the transcript of the proceedings before this Court. As best I can determine, the applicant produced a number of documents that challenged the respondent’s claims with respect to expenses.
I can accept that some of the expenses claimed by the respondent would seem high and would ordinarily call for some corroboration. For example, hairdressing costs of $130 per month, entertainment $217 per month, children’s activities $217 per month.
However, these were findings of fact by the SSAT and the applicant is not able to articulate to my satisfaction that those findings were not based on evidence before the SSAT or clearly incorrect.
I would also note that the applicant was legally represented before the SSAT and had the capacity to challenge those expenses.
The SSAT found that the respondent had monthly expenses which related specifically to the child’s special needs of $2,421.07 and the SSAT found that there are special circumstances in this case in that a formula assessment would not take into account an account of the costs of the child’s special needs of $29,052 per year.
Whilst there may be a legitimate dispute about the amounts claimed as being necessary expenses for the child, in the first part of the process, the SSAT needed only to be satisfied that the statutory threshold had been reached – ie, that a ground for departure had been established and that there were special circumstances to warrant a departure from the administrative assessment of child support.
Whilst the applicant contends that the respondent’s evidence was grossly exaggerated or indeed false, there is little by way of submission or matters in the evidence before the SSAT that would cause me to consider that the SSAT erred in the way that it came to that determination or approached the first statutory consideration in the matter.
I consider that the SSAT is entitled to reach the conclusion it did that a ground for departure was established.
Ground 1 of the appeal has not been established.
Whether it was just and equitable as between the parents and the child to depart from the administrative assessment
In the course of his submissions and as best I can determine from his written material, the applicant challenges, in the main, the findings reached by the SSAT with respect to the expenses associated with meeting the needs of the child.
Although it is not clear to me the basis upon which the decision is challenged, I could not discern any error in the way that the SSAT approached the relative capacities of each of the parents to provide support for the child.
The findings about the respondent’s net weekly income (para.65 of the reasons) and her own living costs (para.66 of the reasons) seem to be open on the available evidence.
The findings about the applicant’s income (paras.49, 50 and 51 of reasons) seem to be open on the evidence.
The findings regarding the reasonable weekly expenses would also appear to be open on the available evidence.
In relation to the needs of the child, the findings of the SSAT are to be found at paras.36, 37 and 69.
It is not clear from the reasons that the SSAT accepted all of the claimed amounts but rather reached the conclusion that K has a need for all the assistance with his financial support that both his parents can reasonably give.
Relevantly the SSAT concluded that each parent should pay one half of the child’s special needs (para.73 of the reasons).
Whilst I acknowledge that there is no statutory imperative that the parents ought to meet the costs of the child equally, in this case the parties circumstances although different, with the respondent having a higher income and the benefit of the family home, their circumstances were not significantly different, and I would not consider that a conclusion that the parents should meet half of the special needs of the child is an error of law. In any event the SSAT did not make a determination (having regard to their findings) that resulted in the parents bearing the support of the child equally.
The finding that they ultimately reached that the applicant could make a contribution of $346 per week (para.74 of the reasons) seems to be based upon his capacity to contribute to the needs of the child. Those findings were based upon an assessment of his evidence about the costs of his household.
The SSAT also found that the child has a need for all the assistance with his financial support that both of his parents can reasonably give (para.70 of the reasons).
As indicated the applicant’s main challenge seems to be to the findings that were made about the many and varied expenses claimed by the respondent.
Whilst I can accept that many of the claimed expenses, on their face, appear high, and I would have expected her to provide some corroboration, the findings made by the SSAT were findings of fact and in the hearing the applicant was legally represented. I do not have the benefit of the transcript and there is nothing in the reasons that suggest to me that the SSAT erred in law in coming to those findings.
I also note that the SSAT proceeded ultimately on the capacity of the applicant to contribute to those expenses and limited his child support to his capacity rather than imposing an obligation to meet half of the costs of the child’s needs.
In his affidavit/submission the applicant challenges the conclusions reached by the SSAT about particular costs. I do not consider it necessary to deal with each of the challenges made by the applicant to the findings of the SSAT in his affidavit filed 27 October 2009.
The summary of argument provided by the respondent provides a short response to many of those claims. I accept the submission that, in general, no error of law is identified with respect to each of those factual findings.
The applicant also seems to argue that many of the so called costs of the child (particularly costs in caring for the child) could be alleviated if he were allowed to provide care for the child.
Whether or not the child ought to be spending more time in the care of his father was not a relevant consideration for the SSAT and it was not a matter that they needed to give consideration to in their approach to the application.
In the circumstances I can identify no error of law in the approach undertaken or the conclusions reached by the SSAT with respect to the finding that it was just and equitable to depart from the child support assessment and the determination made.
I also consider that there was no error of law in the SSAT coming to the conclusion that it was otherwise proper to depart from the child support assessment.
Grounds 2 and 3 of the appeal (as I perceive it) therefore fail.
As a consequence the appeal is dismissed.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Slack FM
Associate: Karen Smith
Date: 28 May 2010
0
0
2