Scroggs and Eberly (SSAT Appeal) - [2010] FMCAfam 1375

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SCROGGS & EBERLY (SSAT APPEAL)

[2010] FMCAfam 1375

CHILD SUPPORT – Appeal from SSAT – whether error of law in the way the tribunal determined income – no determination of error – appeal dismissed.

Child Support (Assessment) Act 1989, ss.117(2)(b)(ii), 117(2)(c)(i)(a) and (b)
Child Support (Registration and Collection) Act 1988, ss.103S, 110B

Agrippa & Horton (SSAT Appeal) [2010] FMCAfam 1144
Collector of Customs v Possolanic Enterprises Pty Ltd [1993] 43 FCR 280
Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259
PJ & Child Support Registrar [2007] FMCAfam 829

Applicant:

MS SCROGGS

Respondent:

MR EBERLY

File Number:

TVC 233 of 2010

Judgment of:

Coker FM

Hearing date:

21 September 2010

Date of Last Submission:

21 September 2010

Delivered at:

Townsville

Delivered on:

9 December 2010

REPRESENTATION

Applicant:

In person

Respondent:

In person

ORDERS

The Appellant’s appeal against the decision of the Social Security Appeals Tribunal dated 11 May 2010 be dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT TOWNSVILLE

TVC 233 of 2010

MS SCROGGS

Applicant

And

MR EBERLY

Respondent

REASONS FOR JUDGMENT

This is an appeal from a decision of the Social Security Appeals Tribunal. The decision is dated 11 May 2010. It is with respect to the issue of child support. The notice of appeal has been filed by

Ms Scroggs, whom I shall refer to as the Appellant. Unfortunately, the grounds for appeal are a little difficult to assess from the information contained within the notice of appeal filed on 16 June 2010. The grounds of appeal are in these terms:
1.There is no reason addressed to the fringe benefits of the respondent given in decision.
2.Respondent has income benefits and resources that have not being given reason in SSAT decision and discluded [sic].
The orders that are sought in the Notice of Appeal, if it were to be successful, is simply that there be a reversion to the decision which was originally dated 25 September 2009.
The respondent to the appeal is Mr Eberly. His response in relation to the matter is simply to seek that the appeal be dismissed.
The appeal relates to the determination of the payment of child support for the child, [X]. [X] was born [in] 2002 and is, therefore, at this time 8 years of age.
[X] has been the subject of a child support assessment since January of 2009. It is noted, and appears to be accepted, that [X] is for the greater part of the time in the primary care of the Appellant. It is also accepted that both the Appellant and the Respondent have two relevant dependent children for the purposes of determinations in respect of these proceedings. Under the heading Assessments, the reasons for decision set out by the SSAT detail the various assessments that have been made in relation…

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.

Continue reading Scroggs and Eberly (SSAT Appeal)

Details

AGLC: Scroggs and Eberly (SSAT Appeal) [2010] FMCAfam 1375
Case: [2010] FMCAfam 1375
Decision Date

CaseChat Overview and Summary

In this case, Ms Scroggs, the applicant, appealed against a decision of the Social Security Appeals Tribunal (SSAT) regarding the assessment of child support payments for her child with Mr Eberly, the respondent. The Tribunal's decision, dated 11 May 2010, was in relation to the determination of child support payments for the child, born in 2002, who has been primarily cared for by the applicant since January 2009. The appeal focused on the determination of the respondent's income and the potential fringe benefits he received from a trust.

The legal issues the court needed to decide were whether there was an error of law in the way the tribunal determined the respondent's income and whether there were unconsidered benefits that should have been taken into account. The applicant argued that the tribunal failed to address the fringe benefits received by the respondent and did not adequately consider the respondent's income benefits and resources.

The court examined the tribunal's decision and found that the tribunal had thoroughly examined the financial records of the trust and the business. The tribunal concluded that the financial statements were meticulously and fairly prepared, and there was no evidence of any unaccounted for benefit to the respondent. The tribunal also found that there was no significant undisclosed benefit to the respondent associated with his conduct of the business. The court found that the tribunal had provided clear and detailed reasons for its decision, and there was no fundamental error in the decision-making process. The court upheld the tribunal's decision and dismissed the appeal, stating that there was no error of law or failing in the proceedings.

The final orders of the court were that the appellant's appeal against the decision of the Social Security Appeals Tribunal dated 11 May 2010 be dismissed.

Orders