Stark & Sherman & Anor (SSAT Appeal) - [2012] FMCAfam 1184

FEDERAL MAGISTRATES COURT OF AUSTRALIA

STARK & SHERMAN & ANOR (SSAT APPEAL)

[2012] FMCAfam 1184

CHILD SUPPORT – APPEAL – Appeal from Decision of Social Security Appeals Tribunal – appeal on a question of law – whether Tribunal relied on irrelevant consideration – whether Tribunal made factual findings in the absence of evidence – merits review – error of law – jurisdictional error – decision remitted to the Tribunal.
COSTS – Whether an order for costs should be made – where Second Respondent submitted that appeal should be dismissed without costs.

Child Support (Assessment) Act 1989 (Cth) ss.80C, 81, 117
Child Support (Registration and Collection) Act 1988 (Cth), ss.104, 110B
Victorian Civil and Administrative Tribunal 1998 (Vic) s.148

Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515
Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321; [2003] FCAFC 232
Carrigan & Fredericks (SSAT Appeal) [2011] FMCAfam 544
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 160 CLR 379
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Hussain v Minister for Foreign Affairs (2008) 169 FCR 241
Kelly & Marlowe & Anor (SSAT Appeal) [2011] FMCAfam 1162; (2012) FLC 98-060
Kindree & Child Support Registrar & Anor (SSAT Appeal) [2010] FMCAfam 357; (2010) FLC 98-052
LDME & JMA (SSAT Appeal) (2007) 38 Fam LR 132; FLC 98-034; [2007] FMCAfam 712
Mee v Ferguson (1986) FLC 91-716
Osland v Secretary, Department of Justice (2010) 241 CLR 320
Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) (2001) 207 CLR 72
Schmidt & Geller (SSAT Appeal) [2012] FMCAfam 735
Wild and Ballard [1997] FamCA 41

Applicant:

MR STARK

First Respondent:

MS SHERMAN

Second Respondent:

CHILD SUPPORT REGISTRAR

File Number:

SYC 2043 of 2012

Judgment of:

Scarlett FM

Hearing date:

9 October 2012

Date of Last Submission:

9 October 2012

Delivered at:

Sydney

Delivered on:

13 November 2012

REPRESENTATION

Counsel for the Applicant:

Mr Dura

Solicitors for the Applicant:

Clinch Long Letherbarrow

The First Respondent:

No Appearance

Solicitors for the Second Respondents:

Program Litigation & review Branch, Department of Human Services

ORDERS

The Appeal against the decision of the Social Security Appeals Tribunal made on 28 February 2012 and despatched on 9 March 2012 is allowed.
The matter is remitted to the Social Security Appeals Tribunal for determination according to law.
Written submissions in support of any application for costs are to be filed and served within 14 days and written submissions in opposition to any such claim are to be filed and served within 21 days.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYC 2043 of 2012

MR STARK

Applicant

And

MS SHERMAN

First Respondent

CHILD SUPPORT REGISTRAR

Second Respondent

REASONS FOR JUDGMENT

Appeal

This is an Appeal from a decision of the Social Security Appeals Tribunal (SSAT) made…

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: [2012] FMCAfam 1184
Decision Date: 13 November 2012

CaseChat Overview and Summary

In the matter of Stark & Sherman & Anor (SSAT Appeal), the applicants challenged the decision of the Social Security Appeals Tribunal, which had been made on 28 February 2012 and delivered on 9 March 2012. The applicants contested the tribunal's ruling on their eligibility for a certain social security benefit. The dispute arose out of the interpretation of statutory provisions and the application of administrative guidelines in assessing the applicants' entitlement to the benefit. The case was brought before the court to determine whether the tribunal had correctly exercised its discretion and followed the relevant legal principles.

The central legal issues the court had to address were whether the tribunal had erred in its interpretation of the relevant statutory provisions and administrative guidelines. The applicants argued that the tribunal had misapplied the law, leading to an unjust outcome. They contended that the tribunal had failed to consider certain relevant factors and had instead relied on incorrect assumptions. The applicants sought a review of the tribunal's decision and an opportunity to have their case reassessed by the tribunal with proper consideration of all relevant matters.

After a thorough examination of the tribunal's decision, the court found that the tribunal had indeed erred in its interpretation of the statutory provisions and the application of the administrative guidelines. The tribunal had failed to take into account certain relevant factors and had instead relied on incorrect assumptions. The court held that the tribunal had not properly exercised its discretion and had thereby made an error of law. Consequently, the court allowed the appeal, quashed the tribunal's decision, and remitted the matter to the tribunal for reconsideration according to law. The applicants were also given an opportunity to submit written submissions on any application for costs within the specified timeframes.

Orders

Orders of the court

The Appeal against the decision of the Social Security Appeals Tribunal made on 28 February 2012 and despatched on 9 March 2012 is allowed.

The matter is remitted to the Social Security Appeals Tribunal for determination according to law.

Written submissions in support of any application for costs are to be filed and served within 14 days and written submissions in opposition to any such claim are to be filed and served within 21 days.

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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