Tasman & Tisdall
[2008] FMCAfam 126
•8 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TASMAN & TISDALL (SSAT APPEAL) | [2008] FMCAfam 126 |
| CHILD SUPPORT – Appeal from decision of SSAT – appeal on a “question of law” – whether decision of SSAT discloses an error of law –whether SSAT misconstrued s.8A of the Child Support (Assessment) Act – whether findings of fact made by SSAT exhibits such illogicality as to amount to an error of law – no error found – appeal dismissed. |
| Child Support (Assessment) Act 1989, ss.4; 7B; 8; 8A; 25 Child Support (Registration and Collection) Act 1988, ss.110B; 110E; 110F; 110G Child Support (Assessment) Regulations 1989: Reg 3A |
| Re Minister for Immigration & Multicultural Affairs: Ex Parte Applicant S20/2002 (2003) 198 ALR 59 Neal v Secretary, Department of Transport (1980) 3 ALD 97 Comcare v Etheridge [2006] FCAFC 27 Blackwood Hodge (Australia) Pty Ltd v Collector of Customs (No 2) (1980) 33 ALD 38 at 49 per Fisher J Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at 258Apthorpe v Repatriation Commission (1987) 13 ALD 656 at 666 LDME & JMA [2007] FMCAfam 712 |
| Appellant: | MR TASMAN |
| Respondent: | MS TISDALL |
| File Number: | ADC2845 of 2007 |
| Judgment of: | Brown FM |
| Hearing date: | 15 February 2008 |
| Date of Last Submission: | 15 February 2008 |
| Delivered at: | Adelaide |
| Delivered on: | 8 May 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Tasman in person |
| Counsel for the Respondent: | Ms Milen |
| Solicitors for the Respondent: | J A Millen & Associates |
ORDERS
The application filed 8 November 2007 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Tasman & Tisdall is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC2845 of 2007
| MR TASMAN |
Applicant
And
| MS TISDALL |
First Respondent
| CHILD SUPPORT AGENCY |
Second Respondent
| SOCIAL SECURITY & APPEALS TRIBUNAL |
Third Respondent
REASONS FOR JUDGMENT
Introduction
This is an appeal from a decision of the Social Securities Appeal Tribunal (“the SSAT”). The decision was handed down on 11 October 2007.
The appellant in the appeal is Mr Tasman “the appellant”. The respondent is Ms Tisdall “the respondent”. The parties are the parents of two children – C born in 1992 and M born in 1994.
The appeal relates to child support issues, particularly the operation of section 8A of the Child Support (Assessment) Act 1989 (“the Assessment Act”). It is the appellant’s contention that the SSAT has misapplied the section to the circumstances which prevail in this case and has so fallen into legal error, which this court is empowered to correct. The respondent does not accept this contention and wishes the appeal to be dismissed.
Background
On 31 March 2004, the Family Court at Adelaide made orders which provided that both C and M were to reside with the appellant and he was to have sole responsibility for their day to day care, welfare and development.
It is common ground between the parties that this order has not formally been discharged. The older child, C went to live with her paternal grandfather in June of 2006. These proceedings do not concern C to any significant degree.
On 30 March 2007, the younger child M came to live with the respondent. The circumstances of this change in M’s living arrangements are a source of great controversy for the parties.
The appellant has apparently formally written to the respondent on 9 April 2007, 20 April 2007 and 22 May 2007 requesting that M be returned to his care. He denies any suggestion that he “kicked M out of home”.
As a result of this change in M’s living arrangements, the respondent applied to the Child Support Agency “the Agency” for an administrative assessment of child support for M payable by the appellant. On 18 April 2007, the Agency issued a child support assessment, pursuant to which the appellant was to pay the respondent a monthly amount of child support, in the sum of $230.25, for M.
The appellant objected to this assessment on 24 April 2007. The basis of the objection was that there was a court order pursuant to which M was to live with him and there were no medical grounds to support any change in M’s residential status.
The objection was dealt with by the Objections Officer of the Agency on 21 June 2007. The objection was disallowed. The Objections Officer found:
·The appellant had ceased to be M’s eligible carer on 30 March 2007 and M had moved into the care of the respondent on that date;
·The respondent had a reasonable excuse for breaching the order of 31 March 2004.
On 16 July 2007, the appellant appealed this decision to the SSAT, which affirmed the Objection Officer’s decision on 27 September 2007, despatching its decision on 11 October 2007.
On 8 November 2007, the appellant filed a notice of appeal (child support) in this court. It is this appeal which is currently before the court.
Material before the SSAT
The SSAT heard evidence from both Mr Tasman and Ms Tisdall, particularly in regards to the circumstances of M leaving his father’s care and coming into the care of his mother.
It was Mr Tasman’s evidence that the change in arrangements was intended to be temporary only. He deposed that M had been seeing a psychiatrist, Dr P concerning anxiety and depression but no formal diagnosis had been made of him.
On the other hand, Ms Tisdall deposed it was her understanding that M was no longer welcome at his father’s home. She disputed that the arrangement, which began on 30 March 2007, was intended to be a temporary one.
Ms Tisdall further deposed that she had commenced proceedings in the Family court at Adelaide on 30 May 2007, seeking the court’s ratification of the existing arrangements for M’s care.
In addition to evidence from the parties, the SSAT received the following documentary evidence:
·A letter from Ms Tisdall to Mr Tasman dated 25 May 2007;
·A letter from Mr Tasman to Ms Tisdall dated 3 June 2007;
·An order of Judicial Registrar Forbes made on 13 June 2007;
·An undertaking given by Mr Tasman to the Family Court on 13 June 2007;
·A family assessment report of Dr O, forensic psychologist dated 25 September 2007.
The letter from Ms Tisdall to Mr Tasman dated 25 May 2007 stated that M did not wish to return to his father’s care. Presumably this was Ms Tisdall’s impression of the situation, as was her statement that M’s mental and physical well being had dramatically improved over the last couple of months.
The letter from Mr Tasman to Ms Tisdall dated 3 June 2007 reiterated Mr Tasman’s position that M should be returned to his care, in accordance with the earlier Family Court order, until agreement was reached between him and Ms Tisdall about future arrangements. It apparently being Mr Tasman’s position that he was prepared to consider a shared care arrangement in respect of M.
The orders of Judicial Registrar Forbes, made on 13 June 2007, provided that the parties jointly commission a family assessment report to ascertain “the children’s attitude towards being resident with either parent and how much time should be spent with the other parent”.
It was further ordered that both C and M should be independently represented in the proceedings before the Family Court. Further consideration of the matter was adjourned to 6 August 2007.
Importantly, during the period of this adjournment, it was ordered that M should spend time with his father each weekend. The various orders of the court were noted to be subject to undertakings of each of the parties. I have been provided with Mr Tasman’s undertaking which was in the following terms:
“I undertake to the court:
Not to attend [H] Primary School unless ordered and to not remove M from the care of the mother.
This undertaking is acknowledged by Mr Tasman to be binding until 27 June 2007 or unless excused earlier by the court.
The report of Dr O is the family assessment report, which was tendered to the SSAT. Dr O interviewed both Mr Tasman and Ms Tisdall, as well as C and M in August of 2007. Her report was apparently organised by Mr Kent, a solicitor who had been appointed the children’s independent representative.
Dr O opined that both C and M had been subjected to instability in their home lives over several years. She felt unable to measure the degree and quality of the children’s attachment to either of their parents.
It was Dr O’s opinion that M had a “conflicting” attitude towards his father.[1] Dr O was concerned at M’s expression of dislike for his father and her impression that M was becoming hardened toward him. She found M’s comment to her, during interview, “why did he kick me out?” to be a telling one. Overall, Dr O opined that M felt confused and rejected by his father, when in reality he needed him and was attempting to be closer to him.
[1] See Dr O’s report at page 12
These various observations led Dr O to recommend that M should have fortnightly visits with his father, of at least four hours in duration, so that the two might engage in some activity together.
The SSAT also had access to relevant documents from Mr Tasman’s file, including computer records.
Of some importance is the fact that the SSAT had access to orders of the Family Court in respect of the parties’ applications regarding M. The court order of 6 August 2007 dealt with a contravention application the appellant had apparently commenced. This application was adjourned to a date to be fixed by the court.
Further, on 6 August 2007, Ms Tisdall’s application to have M live with her and by necessary implication to have the orders of 31 March 2004 discharged and Mr Tasman’s response to this application were adjourned to the trial notice list. More importantly, in the context of this case, the orders of 13 June 2007 were varied so that any time the appellant spent with M was to be subject to M’s wishes.
Findings of fact made by the SSAT
On the basis of the evidence lead before it, the SSAT made the following findings:
·M had been in the sole care of Ms Tisdall since 30 March 2007.
·The parties had no formal agreement as to how long this change of M’s living arrangements was expected to be for.
·M suffered from an undiagnosed psychological condition, relating to an anxiety and depression, for which he had received treatment from Dr P.
·Ms Tisdall took M into her care due to concerns she had for his health and well being and she believed that this change would be permanent.
·Mr Tasman wished the previous arrangement to resume and had informed both Ms Tisdall and the Agency of this fact.
The Grounds of Appeal
By his grounds of appeal filed on 8 November 2007 the appellant contends as follows:
i)The mother is in breach of the Family Court order dated March 2004 an order the mother requested which gives the father day to day care, welfare and development of the children.
ii)The Social Security Appeals Tribunal at paragraph 29 made a finding of fact that the child M suffers an undiagnosed medical condition with no material fact provided by a treating medical or psychiatric professional.
iii)The Social Security Appeals Tribunal at paragraph 42 make a finding of fact based on the mother’s belief that she acted in permanently removing M from my care for his own health and safety without any material fact of proof.
The appellant seeks a number of orders which can be summarised, as best I can glean, as follows:
i)The Agency should be restrained from collecting child support from him for M.
ii)If he (the appellant) was found to be liable to pay child support for M he (the appellant) be at liberty to determine how that money was to be allocated rather than the respondent.
iii)The decision of the SSAT should be set aside.
As required by the applicable rules of court,[2] the appellant provided an affidavit in support of his appeal. This affidavit sets out the history of the parties’ relationship with one another, from the appellant’s perspective. He is critical of the respondent in a number of areas.
[2] See Federal Magistrates Court Rules Rule 25.03
Firstly he alleges that she has an addiction to gambling. Secondly that she has assumed the care of M as a ploy to gain access to additional funds for her own benefit. Thirdly the mother has encouraged M to have a negative attitude towards him.
The appellant is also critical that the Agency has failed to properly apply the provisions of its policy guide to the circumstances of this case, particularly its determination whether reasonable grounds existed to justify him being deprived of contact to M.
The legal framework applicable
The nature of an appeal to this court from a decision of the SSAT is governed by the provisions of Division 3 of Part VIII of the Child Support (Registration and Collection) Act 1988 (“the Registration Act”), in particular section 110B which reads as follows:
“110B A party to a proceeding before the SSAT under Part VIIA may appeal to a court having jurisdiction under this Act, on a question of law, from any decision of the SSAT in that proceeding.”
This court is authorised to hear such appeals from the SSAT by virtue of the provisions of section 110E of the Registration Act. Pursuant to section 110F of the Registration Act, having determined any such appeal, I am authorised to make any order, which I believe is appropriate but particularly may:
·affirm or set aside the decision of the SSAT; or
·remit the case to be heard again by the SSAT, either with or without the hearing of further evidence.
I do not have the explicit powers necessary to give effect to the first two orders sought by the appellant in his notice of appeal. In any event, the gravamen of the appellant’s case is that the decision of the SSAT should be set aside.
It also seems to be his case that the SSAT has fallen into legal error by reaching the conclusion that the respondent has believed, on reasonable ground, that her actions in assuming responsibility for the care of M were necessary to protect M’s health and safety.
The first question to consider is what is the nature of an appeal on a “question of law”? The provisions of the Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006 has significantly reformed the review process in respect of administrative decisions of the Child Support Registrar. The legislation has inaugurated an independent process of review through the SSAT. This process is external of the Agency’s processes and is administrative in nature.
Pursuant to the provisions of section 110B, any further appeal from the SSAT is limited in nature. It is limited only to an examination of how the SSAT applied or failed to apply the applicable principles of law, which were relevant to the determination of the appeal issue which came before it. As such, an appeal to this court, pursuant to section 110B, does not constitute a rehearing on the merits of the case nor should this court, other than in exceptional circumstances, challenge findings of fact made by the SSAT.[3]
[3] See Child Support (Registration and Collection) Act 1989 at section 110G(1)
Accordingly, this court should not be concerned as to whether or not it would have come to the same conclusion as the SSAT did, but only whether the SSAT erred in law,[4] as it is only in “exceptional circumstances” that the decision of the Tribunal should not be the final decision.[5]
[4] See Neal v Secretary, Department of Transport (1980) 3 ALD 97 at 100 per Franki J and Comcare v Etheridge [2006] FCAFC 27 at paragraph [14] per Branson J.
[5] See Blackwood Hodge (Australia) Pty Ltd v Collector of Customs (No 2) (1980) 33 ALD 38 at 49 per Fisher J.
It is the function of this court to determine whether the decision of the SSAT was within its legal powers. That is what is meant by a question of law. It is not the function of this court to examine the merits of that decision. As such, I should be cautious to approach the decision of the SSAT with “an eye [which is] too keenly attuned to perception of error”. [6]Rather I should take a commonsense approach to what the SSAT was saying in its decision and the reasons why it did said what it said.
[6] See Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at 258
An administrative tribunal exceeds its powers and thus commits a jurisdictional error, which is correctable on appeal in respect of a question of law, if it:
i)fails to construe properly the legislative provisions applicable;
ii)identifies the wrong issues or asks itself the wrong questions;
iii)ignores relevant material or relies on irrelevant material;
iv)fails to accord procedural fairness to the party before it;
v)makes an erroneous finding of such a magnitude that it goes to the very jurisdiction which it purports to exercise rendering its decision perverse or unreasonable or otherwise offending logic.[7]
[7] See Apthorpe v Repatriation Commission (1987) 13 ALD 656 at 666
As Gleeson C.J. pointed out in Re Minister for Immigration & Multicultural Affairs: Ex Parte Applicant S20/2002[8]:
“To describe reasoning as illogical, or unreasonable or irrational, may merely be an emphatic way of expressing disagreement with it. If it is suggested that there is a legal consequence, it may be necessary to be more precise as to the nature and quality of the error attributed to the decision maker, and to identify the legal principal or statutory provision that attracts the suggested consequence.”
[8] Re Minister for Immigration & Multicultural Affairs: Ex Parte Applicant S20/2002 (2003) 198ALR 59 at 61
The appellant’s grounds of appeal have not been professionally drawn. It seems to me that he contends that the SSAT has failed to construe the provisions of section 8A of the Act correctly and has made findings of fact which are so erroneous that the court, in all good conscience, should not allow them to stand, as to do otherwise would amount to an error of law.
However, bearing in mind that the applicant is unrepresented, I should not take “an unduly legalistic or pedantic approach [to] analysing the grounds of appeal” which he has provided. Rather I should examine the material overall and attempt to identify whether some question of law arises which may justify the making of the orders sought on appeal. Regardless of failures of form in the appeal documentation, I should attempt to come to grips with the real substance of the appeal and, subject to the requirements of procedural fairness, deal with it.[9]
[9] See LDME & JMA [2007] FMCAfam 712 at paragraph [31] per Halligan FM.
The appellant’s central contention rests on the fact that he believes it was not open to the SSAT essentially to condone the respondent’s actions in breaching the orders of the Family Court made on 31 March 2004, when those orders have not been explicitly changed and provide for M to live with him and for him to have day to day responsibility for M’s day to day care, welfare and development.
On 18 April 2007, the Agency accepted Ms Tisdall’s application that she was entitled to an administrative assessment of child support for M from Mr Tasman. Only eligible carers can apply for such administrative assessments of child support.[10]
[10] See Child Support (Assessment) Act 1989 section 25.
The term eligible carer is defined in section 7B of the Assessment Act. It means a person who is either:
a)the sole or principal provider of care for the child concerned;
b)a person who has major care of the child concerned;
c)a person who shares ongoing daily care of the child concerned substantially equally with another person;
d)a person who has the substantial care of the child concerned.
These various levels of care are in turn defined by section 8 of the Assessment Act and depend on the number of nights per year the child concerned spends with each of his or her parents.
If the order of 31 March 2004 were being strictly implemented, there can be no doubt that the appellant would be M’s sole or principal provider of care and, as such, an eligible carer entitled to an administrative assessment of child support for him.
The difficulty is that although this order has not been specifically discharged, in practice it has been extensively modified. Given the time the appellant is currently spending with M, pursuant to the more recent orders of 13 June 2007 and what had happened since 18 April 2007, in terms of what is actually happening for M’s care, the appellant is no-longer, in practice, M’s eligible carer.
This situation brings into play the provisions of section 8A of the Assessment Act. It provides as follows:
“8A(1) This section applies if:
(a) a court order or registered parenting plan in force to a child deals with the person or persons with whom the child is to live, or with the time a child to spend with another person or persons; and
(b) the Registrar is notified, or otherwise becomes aware, of the fact that a person is contravening the order or parenting plan; and
(c) the Registrar is satisfied in accordance with the regulations, that the person does not have a reasonable excuse for contravening the order or parenting plan; and
(d) as a result of the contravention:
(i) a person (the first person) has more care of the child than the first person would have if the order or parenting plan were not being contravened; and
(ii) another person (the second person) has less care of the child the second person would have if the if the order or parenting plan were not being contravened.
(2) If this section applies, then for all purposes under this Act:
(a) the first person is taken to have care of the child only to extent (if any) to which the first person would have the care of the child if the court order or parenting plan (as the case may be) were being complied with; and
(b) the amount of care that the second person has of the child is to be worked out on the basis of the care (if any) that the person actually has of the child; and
(c) section 8 does not apply to any person referred to in paragraph (a) and (b) in relation to the child; and
(d) the kind of care (if any) that each of those persons is taken to have is worked out under subsections (3), (4) and (5).
Subsections (3), (4) and (5) define respectively “shared care” “substantial contact” and “major contact”. Subsection (7) defines “court order”. It is clear that the order of 31 March 2004 is a court order. It is also clear that the subsequent order of 13 June 2007 is also such a court order.
Regulation 3A of the Child Support (Assessment) Regulations 1989 is the relevant regulation referred to in section 8A(1)(c) above. It reads as follows:
“3A Excuse for contravening court order or registered parenting plan (Act s 8A (1))
(1)For paragraph 8A (1) (c) of the Act, the Registrar is to be satisfied that a person (the contravening person) does not have a reasonable excuse for contravening a court order or a registered parenting plan unless:
(a) at the time of the contravention, the contravening person did not understand the obligations imposed by the order or plan on the person who was bound by it; or
(b) the person or persons having care of a child under the order or plan agreed to the contravention; or
(c) if the contravention resulted in a child being deprived of rightful care (within the meaning of subregulation (2)):
(i)the contravention happened because the contravening person believed, on reasonable grounds, that the actions constituting the contravention were necessary to protect the health or safety of a person (the person at risk); and
(ii)the child was deprived of rightful care for no longer than was necessary to protect the health or safety of the person at risk.
(2) For paragraph (1) (c):
(a)a child is deprived of rightful care during the time that, contrary to an order or plan, the child does not live or spend time with a person; and
(b)the person at risk may be the child, the contravening person or anyone else.”
The drafting of section 8A is not particularly clear or easy to follow. The purpose of the legislation becomes clearer when reference is had to the relevant applicable explanatory memorandum. The background to the insertion of section 8A was described as follows:
“The current law is unclear whether assessments should be based solely on the factual daily care of a child or whether that care should also be lawful. The legislation does not specifically require care of a child to be lawful in order for an administrative assessment to be raised based on the level of care as disclosed in the application.
The level of care taken into account for the purposes of varying the level of care in an assessment is based on the arrangements as disclosed to the Registrar by one of the parties when the level of care of the child changes. The assessed rate of child support is based on the factual care of the child. In some circumstances this may be contrary to the care arrangements a court has ordered or that are contained within a registered parenting plan.” [11]
[11] See Explanatory Memorandum to Child Support legislation Amendment Bill 1998 at Chapter 5.12 & 5.13.
This circumstance describes the situation of the appellant and respondent in February of 2007. The factual arrangements for M’s care did not reflect the court ordered arrangements. It was the respondent who notified the Agency of a change of circumstances.
The application of section 8A is limited to circumstances where a person has contravened a court order without reasonable excuse. In such circumstances, any modification of the child support formula, based on actual arrangements for the care of the child concerned, will be limited by reference to that person’s lawful level of care pursuant to any court order or registered parenting plan.
In essence a person who disregards or disobeys a parenting order, without having a reasonable excuse to do so, will not become entitled to a greater assessment of child support than he or she would otherwise have been entitled to. It is only the person who has not contravened the order whose entitlements are to be calculated on the basis of actual arrangements for the care of the child concerned.
The explanatory memorandum reads as follows:
“The proposed amendments will apply to modify how a person's level of care is calculated where the Registrar is notified or becomes aware that a person, without "reasonable excuse", has contravened a court order or registered parenting plan that deals with the care or contact of a child. The circumstances that will be covered by the term "reasonable excuse" will be prescribed in Regulations.
For the purposes of the modified formula, a person who has more care than is provided for in a court order or registered parenting plan will be taken to have care only to the level specified in the order or parenting plan. The person who has less care as a result of the contravention will be taken to have care only to the level of their actual care of the child.
The kind of care each person has will be based on the amount of time they actually have the child in their care, or limited by the amount of time they could lawfully have the child in their care. A person who is taken to have shared care, substantial or major contact with a child cannot also be taken to be the sole or principal provider of ongoing daily care of the child. This is so even though the child may not actually be in the care of any other person.
The proposed amendments will only apply where there is a court order or registered parenting plan in force that deals with the person or persons with whom the child is to live or have contact. If there is no court order or registered parenting plan in force care will be based on the factual care of the child.
The terms "court order" and "registered parenting plan" for the purposes of the new provision are defined.
The proposed amendments will modify how a parent's entitlement to child support is calculated. Each parent will only be entitled to receive child support to the extent of their lawful level of care. A parent's actual level of care will reduce their entitlement under a court order, where it is less than their lawful level of care. Where both parents are eligible carers the liability of one to the other will continue to be calculated under Subdivision E of Part 5. Where due to the contravention of a court order, one parent is no longer an eligible carer, then the liability will be calculated under the new Subdivision H of Part 5 so that they will be liable to pay child support to the other parent only to the extent of that parent's lawful care.”[12]
[12] ibid at Chapter 5.18 to 5.23.
Clearly the public policy behind the applicable legislation is that the Agency should not allow itself to circumvent court orders prescribing care arrangements for children by basing its child support assessments on the actual care arrangements for children concerned, contrary to such orders, unless some proper basis exists to justify it doing so. Such a proper basis is provided by the existence of a reasonable excuse for non compliance with the court order concerned.
This is reflected in the Agency’s Law and Policy Guide, which is referred to in both the decision of the SSAT and in the appellant’s affidavit. The Guide speaks of three circumstances where it will be reasonable for the Agency to effectively excuse a contravention of children’s order by allowing a modification of an existing child support assessment. These are as follows:
·a children’s order is misunderstood;
·the parties concerned agreed to a contravention of the order concerned;
·the person contravening the order believed it was necessary to contravene the order in order to protect the health or safety of some person concerned and the ensuing contravention was not longer than necessary to achieve this objective.
Clearly, these policy considerations reflect the contents of Regulation 3A of the Child Support (Assessment) Regulations which arise from section 8A(1)(c) of the Act, to which reference has already been made. The Guide provides a gloss on these criteria.
In respect of situations where it is said the parties concerned have agreed to contravene the order concerned, the Agency, pursuant to the Guide, indicates that it will consider:
·correspondence between the parties concerned;
·the period of time over which the order has been contravened;
·the ages of the children concerned and any wishes expressed by them;
·whether either of the parents involved has sought to enforce or vary the order concerned.
In respect of situation where it is said there has been a contravention based on protection of the health and safety of some person concerned, the Agency, pursuant to the Guide, indicates that it will consider:
·ongoing family violence;
·ongoing health problems of the child concerned, which prevents contact;
·ongoing sexual, emotional or physical abuse.
Was there an error of law disclosed in the decision of the SSAT?
In my view, the task for the Agency and so for the SSAT on a review of its decision, was to determine firstly who was the eligible carer of M, at the time of Ms Tisdall’s application for a change of assessment and secondly whether the circumstances surrounding M coming into her care in March/April 2007 and subsequently justified the Agency in disregarding the order of 31 March 2004, which prescribed arrangements for his care.
Although it is not the role of this court to embark on a fact finding exercise, it seems incontrovertible that the SSAT was entitled, on the basis of the evidence before it, to conclude as follows:
·M had been in the sole care of Ms Tisdall since 30 March 2007;
·Ms Tisdall had applied to the Family Court on 30 May 2007 to have the orders of 31 March 2004 changed to reflect the existing arrangements;
·On 13 June 2007 there had been a de facto recognition of this change of circumstances by both the court in its provision that M would spend time with his father on weekends and by the father in the provision of his undertaking that he would not attempt to remove M either from his school or the care of his mother;
·The orders of 6 August 2007 further reflected this recognition of a change of circumstances by virtue of the fact that they recognised any time M spent with his father was to be subject to his [M’s] wishes.[13]
[13] See SSAT Reason for Decision at paragraph 27
There is a factual dispute between the parties regarding the circumstances surrounding M’s change of care arrangements on
30 March 2007. The appellant maintained that he had never consented to any permanent change in arrangements for M’s care. On the other hand the respondent maintained that it was agreed that there would be a change in care arrangements for M at this stage.
The respondent deposed to the Tribunal that around 26 March 2007 she was contacted by M, who told her his father was going “to kick him out” of his home.” A few days later she arranged to collect M and his possessions from the appellant’s home. As such she believed that the arrangement was intended to be a permanent rather than a temporary one.
In its reasons, the SSAT indicated that it preferred the respondent’s evidence to that of the appellant in regards to the circumstances of M’s change of living arrangements – that albeit for a short period of time – Mr Tasman wanted M to leave his home and live with his mother.[14] I am not entitled to look behind this finding of fact.
[14] Ibid at paragraph 23
Ms Tisdall deposed to the SSAT that, in March of 2007 and earlier, she had been concerned about arrangements whereby M lived with his father. She said she had not forced M to return to his father’s care because he [M] had told her he [M] would “rather kill himself”.[15]
[15] Ibid at paragraph 11
The SSAT did not make a specific finding in respect of this evidence, apart from finding that Ms Tisdall took “M into her care due to concerns for his health and well-being and that she believed that the change in living arrangements would be permanent.”[16] Again, this is a fact finding task which is the sole domain of the SSAT. In my view, given the SSAT expressed preference for Ms Tisdall’s evidence, it cannot be said to be a perverse finding.
[16] Ibid at paragraph 29(iv)
In addition the SSAT made a finding that M was suffering from “an undiagnosed psychological condition related to anxiety and depression for which he was being treated by Dr P.”[17] The appellant objects to this finding, which was clearly instrumental in the SSAT concluding that the respondent had a reasonable excuse for contravening the order of 31 March 2004, when coupled with the fact that she thought the change of arrangements was to be a permanent one.
[17] Ibid at paragraph 13
The basis of this finding seems to be the evidence of the appellant himself, who was the initiator of M seeing Dr P.[18] It is true that the SSAT had no actual evidence from Dr P himself. The Tribunal was also careful to reiterate the appellant’s assertion that there had been no formal diagnosis of any physical or psychological condition.[19]
[18] Ibid at paragraph 10
[19] Ibid at paragraph 26
The importance of the SSAT’s reliance on this finding lies in its subsequent finding that there was a reasonable basis for Ms Tisdall having acted in the way in which she did in late March of 2007, namely that she thought M was an emotionally vulnerable child, whose wish was to cease living with his father.
The SSAT had Dr O’s report before it. This report provided the view that M had a “conflicting attitude” towards his father. It did not support a return of M to his father’s care. It made particular reference to the expression of M’s view regarding ongoing contact with his father.
I do not think that this particular aspect of the Tribunal’s findings can be criticised as amounting to some erroneous finding at law. M has seen Dr P. His presentation has been disturbing according to an independent psychiatric expert. The SSAT was careful to note that M’s conditions were not formally diagnosed and it did not have any formal medical evidence before it.
It was the province of the SSAT to make findings of fact on the basis of the evidence led before it. It is not the role of this court to substitute its own view of the evidence. Rather it should intervene when the finding made represents an effront to considerations of logic or rationality. I do not think the SSAT’s finding in this regard is such an effront to logic or rationale thought.
The SSAT also made reference to the consequences of the Family Court’s orders of both 13 June and 6 August 2007. It said, in effect, that although these two interim orders did not explicitly set aside the order of 31 March 2004 “they clearly recognised that there had been a change in the care arrangement [for M][20].
[20] Ibid at paragraph 37
By necessary implication, the SSAT was aware that Ms Tisdall was not acting without reference to the court process in respect of her actions pertaining to M’s care. In particular, the SSAT was aware that the Family Court had given its tacit approval (or at the very least had refrained from explicit criticism) of the change in care arrangements for M. This follows from the “contact” orders made by Judicial Registrar Forbes on 13 June and 6 August 2007.
In my view, on the evidence available to it, it was open to the SSAT to conclude that Ms Tisdall was acting to protect M’s health and safety. In my view, given the contents of Dr O’s report and the fact that M had been attending the psychiatrist, Dr P, it cannot be said that there was no evidence to support such a finding.
The three central conclusions of the SSAT are as follows:
·The Tribunal accepted that there was a change in M’s living arrangements on 30 March 2007 which occurred, at least initially, with the consent of both parents and that, at this time, both parents were of the view that M should spend more time with his mother for reasons related to his health.
·The Tribunal therefore found that the contravention of the 2004 order which occurred at the end of the weekend commencing 30 March 2007 occurred because Ms Tisdall believed, on reasonable grounds, that her actions in taking M into her care were necessary to protect M’s health and safety.
·The Tribunal noted that, after the unsuccessful to reunite M with his father on 30 April 2007, Ms Tisdall took prompt steps to amend the 31 March 2004 order, (by filing an application on 30 May 2007) and that Mr Tasman had not taken any formal steps to enforce the 31 March 2004, prior to the filing of Ms Tisdall’s application on 30 May 2007.[21]
[21] Ibid at paragraphs 41-43
Undoubtedly, there was a change in M’s living arrangements from
30 March 2007onwards. It seems to be Mr Tasman’s position that this change was not something to which he agreed. It is not the role of this court to make a definitive finding of fact in respect of this issue, that is a role for the SSAT. However, given the evidence which was available to the SSAT, it seems to me that there was sufficient and reasonable evidence for the Tribunal to reach the conclusion that Mr Tasman did originally agree to the change in arrangements.
Again, it is not the role of this court to make a finding of fact whether Ms Tisdall was justified in allowing this state of affairs to continue, on the basis of her assessment of M’s health and safety. Rather, it is the function of this court to ascertain whether the Tribunal fell into jurisdictional error by reaching this conclusion because there was no evidence on which it could reasonably or logically base it.
In my view, the applicant has not been able to demonstrate such a jurisdictional error. In my view, there was evidence, on the basis of which the SSAT could conclude that Ms Tisdall had so reasonably acted within the exception provided by section 8A.
Finally, the SSAT put Ms Tisdall’s actions into the context of what had occurred, in the Family Court since 30 March 2007. It noted that she had taken action in the court to change the earlier order of 2004 and, in a formal sense, Mr Tasman had not sought to enforce this order. The court had made “contact” orders for Mr Tasman to spend time with M.
Conclusions
The primary purpose of the child support legislation is to ensure that parents provide an equitable level of financial support for their children [see Child Support (Assessment) Act at section 4]. Ordinarily the parent who has primary responsibility for the ongoing daily care of a child should be able to look to the other parent for assistance in providing for the child concerned and the appropriate level of financial support should be able to be ascertained from an analysis of each of the parties’ respective incomes.
Accordingly the purpose of the legislation is to ensure children receive an appropriate level of financial support from their parents. This level of support is calculated on the basis of the financial circumstances of the parents concerned and the level of care each parent provides to the child, who is the subject of an assessment.
The purpose of section 8A of the Child Support (Assessment) Act and the resulting Regulation is to prevent abuses of both the child support and family law systems, arising as a result of one parent disregarding court mandated arrangements for the care of children.
If a parent has assumed the ongoing responsibility for the day to day care of a child, in defiance of a court order, he or she should not be entitled to the full financial benefit of any entitlements arising from the care of that child, pursuant to the child support system, unless he or she has reasonable justification for disregarding such a court order.
There is no controversy between the parties that M has been in the care of Ms Tisdall since late March of 2007. Accordingly, she has assumed financial responsibility for providing for his care. It is also the case that the existing court mandated arrangements for M’s care have not been formally discharged, although there is tacit recognition of the change of circumstances in subsequently made court orders. It cannot be said that Ms Tisdall has not sought the court’s imprimatur for this change of arrangements in respect of M.
The fundamental task for the SSAT, in this case, was to assess, on the evidence available to it, whether Ms Tisdall had a reasonable excuse for retaining M in her care and was so entitled to an assessment of child support being made in her favour. The Tribunal did ultimately include that Ms Tisdall did have such a reasonable excuse.
The task for this court is to determine whether this decision amounted to an error of law. It is not this court’s function to conduct a re-hearing of the case or gather its own evidence. Accordingly, the courts authority to intervene in respect of the determination of the SSAT is circumscribed.
The SSAT had evidence before it, from which it could reasonably conclude, in my view, that M was a troubled child, who had voluntarily made the transition from his father’s to his mother’s household. In such circumstances, it concluded that Ms Tisdall’s actions were justified. The Tribunal also noted that she had taken prompt steps to amend the 31 March 2004 order.
I can see no flaw in the Tribunal’s reasoning nor am I able to conclude that any of its conclusions are so illogical, unreasonable or irrational that the Tribunal has misapplied its jurisdiction and fallen into legal error. In addition I do not believe that the SSAT has misconstrued the applicable legislation. In my view, the findings it made and the legal bases on which it grounded them were open to the SSAT.
As such I can find no error of law in the decision under challenge. Accordingly, it must follow that the application herein should be dismissed.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: P Smith
Date: 8 May 2008
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