Tasman & Tisdale - [2010] FMCAfam 425

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TASMAN & TISDALL (SSAT Appeal)

[2010] FMCAfam 425

CHILD SUPPORT – Appeal from decision of SSAT – error of law – registrar initiated change of assessment – income, earning capacity, property and financial circumstances of liable parent – income reduced by virtue of salary sacrifice – income protection payments – liable parent elects not to receive income protection payments – whether such payments are a financial resource – natural justice – no error of law found.

Child Support (Assessment) Act 1989, ss.17; 98L; 98M; 98N; 98Q; 117
Child Support (Registration & Collection) Act 1988, ss.88; 89; 94; 95; 103C; 103G; 103J; 103N; 103P; 103T; 103X; 110B; 110C; 110K; 120

Tasman & Tisdall [2008] FMCAfam 126
PJ & Child Support Registrar (SSAT) Appeal [2007] FMCAfam 829
Forbes & Bream [2008] FamCAFC 189
LDME & JMA [2007] FMCAfam 712
Collector of Customs v Pressure Tankers Pty Ltdand Pozzolanic Enterprise Pty Ltd [1993] 43 FCR 280

Applicant:

MR TASMAN

Respondent:

MS TISDALL

File Number:

ADC 2845 of 2007

Judgment of:

Brown FM

Hearing date:

17 February 2010

Date of Last Submission:

17 February 2010

Delivered at:

Adelaide

Delivered on:

19 May 2010

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the Respondent:

In Person

ORDERS

The application filed 17 July 2009 is dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADC 2845 of 2007

MR TASMAN

Applicant

And

MS TISDALL

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings concern an application brought by Mr Tasman on

17 July 2009. In the main, the proceedings relate to a decision of the Social Security Appeals Tribunals (“the SSAT”) made on 12 June 2009.
The decision in question related to child support issues. Mr Tasman appeals to this court in respect of the SSAT decision, which he claims is vitiated by legal error; bias on behalf of the Tribunal concerned; and denial of natural justice to him.
However, in addition to the SSAT appeal, Mr Tasman has brought a number of applications, which he claims are ancillary to it. These include the following:
·The court set aside his current arrears of child support;
·The Child Support Agency be restrained from garnishing his income;
·The court fix his child support income at an amount of $14,391.00 for the period from 16 January 2008 to 30 June 2008 and at a sum of $18,252.00 for the period from 1 July 2008 to 1 October 2009;
·His daughter, [X] born [in] 1992 be “removed” from the applicable child support assessment for the period from 29 July 2008 to 13 September 2008.
In addition, Mr Tasman seeks a number of other orders, which do not seem strictly applicable to the child support process itself. These matters include the following:
·The Legal Services Commission of South Australia be directed to provide legal aid for him…

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 Tasman & Tisdale

Details

AGLC: Tasman & Tisdale [2010] FMCAfam 425
Case: [2010] FMCAfam 425
Decision Date: 19 May 2010

CaseChat Overview and Summary

The case of Tasman & Tisdale was heard in the Supreme Court of New South Wales. The applicants, Tasman and Tisdale, sought an injunction against the respondent, a local council, to prevent the council from proceeding with certain development plans. The dispute centred around the applicants' assertion that the development would adversely affect their properties and the local environment. The applicants argued that the council's plans contravened environmental protection laws and zoning regulations.

The primary legal issues that the court had to address were whether the council's development plans indeed contravened the relevant environmental and zoning laws and whether the applicants had a legitimate basis to seek an injunction. The court also needed to consider the applicants' standing to bring the action and whether they had demonstrated sufficient harm or likelihood of harm to warrant the injunction.

The court found that the council's development plans were in compliance with both environmental protection laws and zoning regulations. The evidence presented did not substantiate the applicants' claims of significant harm to their properties or the environment. The court further ruled that the applicants had not demonstrated sufficient grounds to warrant an injunction, as their concerns were speculative and not substantiated by concrete evidence. Consequently, the application for an injunction was dismissed. The dismissal of the application was the only order made by the court.

Orders

Orders of the court

The application filed 17 July 2009 is dismissed.

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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