FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TANNER & DALTON and ANOR (SSAT APPEAL) | [2012] FMCAfam 732 |
| CHILD SUPPORT – SSAT APPEAL – Appeal from decision of SSAT – consideration of ground of appeal – whether error of law shown – appeal dismissed. |
| Child Support (Assessment) Act 1989 (Cth), ss.98S, 117, 55G Child Support (Registration and Collection) Act 1988 (Cth), ss.110B, 110K, 95 Federal Magistrates Act 1999 (Cth), s.3 |
| Tasman & Tisdall [2008] FMCAfam 126 Podmore & Pillai (SSAT Appeal) [2011] FMCAfam 952 Comcare v Moon [2003] FCA 569 Frost & Frost & Anor (SSAT Appeal) [2011] FMCAfam 1311 LDME & JMA (SSAT Appeal) (2007) FLC 98-034 Morse & Potts (SSAT Appeal) [2010] FMCAfam 1305 Agrippa & Horton (SSAT Appeal) [2010] FMCAfam 1144 Weir & Weir (1993) FLC 92-338 Black & Kellner (1992) FLC 92-287 Ladd & Child Support Registrar & Anor (SSAT Appeal) [2010] FMCAfam 23 Gyselman & Gyselman (1992) FLC 92-279 Tasman & Tisdall [2008] FMCAfam 126 Apthorpe v Repatriation Commission (1987) 13 ALD 656 Kioa v West (1985) 159 CLR 550 Eades & Cadell (SSAT Appeal) [2009] FMCAfam 275 |
| Applicant: | MR TANNER |
| First Respondent: | MS DALTON |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | HBC 342 of 2011 |
| Judgment of: | Baker FM |
| Hearing date: | 9 May 2012 |
| Date of Last Submission: | 9 May 2012 |
| Delivered at: | Hobart |
| Delivered on: | 26 July 2012 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitors for the Applicant: | In person |
| Counsel for the first Respondent: | Ms Mooney of Counsel |
| Solicitors for the first Respondent: | Bishops Barristers & Solicitors |
| Counsel for the second Respondent: | Mr Sparkes |
| Solicitors for the second Respondent: | Australian Government Solicitor |
ORDERS
That the Notice of Appeal filed by the father on 5 May 2011 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Tanner & Dalton &and Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT HOBART |
HBC 342 of 2011
| MR TANNER |
Applicant
And
| MS DALTON |
First Respondent
| CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This was an appeal by Mr Tanner (“the father”) from a decision of the Social Security Appeal Tribunal (“the SSAT” or “the Tribunal”) made 5 April 2011. The first and second respondents in this matter were, respectively, Ms Dalton. (“the mother”) and the Child Support Registrar (“the CSR”).
On 1 April 2011 the SSAT set aside the decision of the objections officer of the Child Support Agency and substituted its decision that the father’s adjusted taxable income be set at $39,813.00 for the period 1 September 2010 to 31 March 2012.
In the Notice of Appeal (Child Support) filed 5 May 2011 (“the Notice of Appeal”) the father sought that the decision of the SSAT be set aside, and that the matter be remitted to the SSAT. There were five grounds of appeal.
Grounds one, three and four assert that the SSAT erred in law by making findings in relation to the father’s necessary expenditure, business income and…
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Details
- AGLC
- Tanner & Dalton (SSAT Appeal) [2012] FMCAfam 732
- Case
- [2012] FMCAfam 732
- Decision Date
CaseChat Overview and Summary
The Tanner & Dalton case involved an appeal against a decision by the Social Security Appeals Tribunal (SSAT) concerning child support. The father, who was the appellant, challenged the Tribunal's decision on various grounds, including an alleged failure to adhere to procedural fairness by not bringing a specific table to his attention. This table, known as the Costs of Children Table, is published by the Child Support Agency and is used for assessing child support under the existing formula arrangements. The father argued that the Tribunal should have informed him about this table, which he claimed was a critical issue in determining the child's needs.
The legal issues before the court included whether the Tribunal was required to bring the Costs of Children Table to the father's attention and whether such an omission constituted a failure of procedural fairness. The court considered the principles of procedural fairness, particularly the requirement to bring critical issues or factors to the attention of an applicant, as outlined in Kioa v West. The court also examined the Tribunal's authority to refer to published guidelines, such as the Costs of Children Table, when assessing the proper needs of the child, referencing Eades & Cadell and other relevant authorities.
The court concluded that the Tribunal was not required to inform the father about the Costs of Children Table, as the costs of the children were not in issue in the proceedings. The court found that the Tribunal had properly considered the costs of the children as presented in the mother's financial statement and that there was no failure of procedural fairness in not drawing the father's attention to the table. The court dismissed all grounds of appeal, affirming the Tribunal's decision.
ORDERS:
1. That the Notice of Appeal filed by the father on 5 May 2011 be dismissed.
The legal issues before the court included whether the Tribunal was required to bring the Costs of Children Table to the father's attention and whether such an omission constituted a failure of procedural fairness. The court considered the principles of procedural fairness, particularly the requirement to bring critical issues or factors to the attention of an applicant, as outlined in Kioa v West. The court also examined the Tribunal's authority to refer to published guidelines, such as the Costs of Children Table, when assessing the proper needs of the child, referencing Eades & Cadell and other relevant authorities.
The court concluded that the Tribunal was not required to inform the father about the Costs of Children Table, as the costs of the children were not in issue in the proceedings. The court found that the Tribunal had properly considered the costs of the children as presented in the mother's financial statement and that there was no failure of procedural fairness in not drawing the father's attention to the table. The court dismissed all grounds of appeal, affirming the Tribunal's decision.
ORDERS:
1. That the Notice of Appeal filed by the father on 5 May 2011 be dismissed.
Orders
Orders of the court
1.
That the Notice of Appeal filed by the father on 5 May 2011 be dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
The Child Support Agency reproduces the Costs of the Children Table on its website.[42] That reproduction includes the figures derived from the current annualised MTAWE figure. This is the table to which the Tribunal referred in the decision at paragraph 69.[42] >I was referred by Counsel for the mother to the case of Eades & Cadell (SSAT Appeal)[43]. In that case, Slack FM considered the material to which the SSAT is entitled to have regard when considering the needs of the child pursuant to s.117(4)(b):[43] [2009] FMCAfam 27522. In considering the proper needs of the child [s.117(4)(b)], the SSAT:a. would ordinarily consider the evidence of the parties about the needs of the children to assess the reasonableness and quantum of those needs;b. may have regard to published guidelines as to the needs of the children (see Hallinan & Witynski at 94,323).c. may also have regard to the costs of children used in the assessment of child support under the existing formula arrangements [although it is not sufficient or appropriate to rely upon the formula to perform that task, Lindenmayer J in Dwyer & McGuire (1993) FLC92-420 (and see also Gyselman (supra) at 79.078)].The Tribunal had before it the evidence about the costs of the children in the financial statement of the mother. It said that the direct costs in providing care to the children were taken into account in assessing the proper needs of the child.[44] The Tribunal was entitled to refer to the Costs of Children Table as part of its consideration of s.117(4)(b), as noted in Eades & Cadel.[45] [44] The decision at 79[45] Above n 43The question is whether the Tribunal was required to bring the Table to the attention of the father. I note the principles expressed in Kioa v West[46], cited above.[47] As noted by Mason J (as he then was), the key aspect of the requirement for procedural fairness is to bring “critical issues or factors” to the attention of an applicant. [46] Above n 35[47] Above n 38The costs of the children were not an issue in the review by the SSAT. The mother included costs of the children in her financial statement and the father did not take issue with that. In my view, in this context, it was not a failure of procedural fairness for the Tribunal not to inform the applicant about the Table and in the context of the costs of the children not being in issue.Accordingly, ground five must fail.ConclusionThe father has failed to establish any grounds for appeal. Accordingly, I dismiss his application.I certify that the preceding ninty-three (93) paragraphs are a true copy of the reasons for judgment of Baker FMDate: 26 July 2012 The Tribunal had before it the evidence about the costs of the children in the financial statement of the mother. It said that the direct costs in providing care to the children were taken into account in assessing the proper needs of the child.[44] The Tribunal was entitled to refer to the Costs of Children Table as part of its consideration of s.117(4)(b), as noted in Eades & Cadel.[45] [44] The decision at 79[45] Above n 43
Ratio Decidendi
Legal Principle Established
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