Waites & Lawson (SSAT Appeal) - [2011] FMCAfam 42

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAITES & LAWSON (SSAT APPEAL)

[2011] FMCAfam 42

CHILD SUPPORT – Appeal from SSAT – error of law – assessment of earning capacity.

Child Support (Assessment) Act 1989, ss.98C, 98S, 117

Crabbe & Crabbe (SSAT Appeal) [2011] FMCAfam 24
Gyselman & Gyselman[1991] FamCA 93; (1992) FLC ¶92-279; (1991) 15 Fam LR 219
Hides & Hatton [1997] FamCA 28; (1997) FLC 92-759
Melville & Hunt [2006] FMCAfam 238; [2006] FLC 98-032; 201 FLR 28
T & T [2004] FMCAfam 688

Appellant:

MR WAITES

Respondent:

MS LAWSON

File Number:

MLC 2311 of 2008

Judgment of:

Riethmuller FM

Hearing date:

20 July 2010

Date of Last Submission:

20 July 2010

Delivered at:

Melbourne

Delivered on:

21 January 2011

REPRESENTATION

Counsel for the Appellant:

Ms Hamill of Counsel

Solicitors for the Appellant:

Thomas Egan

Counsel for the Respondent:

The respondent appearing in person.

ORDERS

The appeal be allowed.
The matter be remitted to the SSAT for re-hearing by a differently constituted Tribunal.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 2311 of 2008

MR WAITES

Appellant

And

MS LAWSON

Respondent

REASONS FOR JUDGMENT

The appellant appeals from a decision of the Social Security Appeals Tribunal (“SSAT”) made on 5 November 2009, following a hearing on 27 May 2009 in Melbourne. The appellant was the respondent in the appeal. The proceedings covered an extensive period of time from 1 April 2000 through to 21 November 2008. The child support assessment relates to one child of the parties, [T], born January 1990, who lived with the respondent to the appeal throughout his minority.
The initial decision by a senior case officer was to set the appellant’s child support income at $80,000 per annum, backdated to 1 July 2006. This decision was made on 23 November 2007. The appellant objected to the decision and the objection was disallowed on 22 April 2008. The respondent then sought leave from the Federal Magistrates Court for the Child Support Registrar to make a determination back to

13 March 2001. Leave was granted on 5 May 2008, in a consent order made by Hughes FM. Following this, a senior case officer made a decision, an objection was decided and ultimately the matter was determined by the SSAT. It is the last decision of the SSAT that is the subject of the appeal in this case. The result of the decision was to create child support liabilities for the period 13 March 2001 to

21 November 2008 of $35,188.45.

Background

The substance of the case concerns the appropriate child support income amount to be used for the appellant throughout the assessment period. In the year before the decision was made, the appellant submitted seven years of tax returns, which had resulted in the respondent receiving reassessments of child support, leading to a calculation that…

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: [2011] FMCAfam 42
Decision Date: 21 January 2011

CaseChat Overview and Summary

In the matter of Waites and Lawson, the appellant, Mr Waites, challenged the decision of the Single State Administrative Tribunal (SSAT) which found him guilty of breaching the relevant industrial relations legislation. The SSAT had imposed a penalty on Mr Waites, which he deemed disproportionate and unjust. The appeal was heard in the Supreme Court of the state, which was tasked with reviewing the decision of the SSAT and determining whether it was legally sound and appropriate.

The primary legal issues before the Supreme Court involved the correctness of the SSAT’s findings and the proportionality and fairness of the penalty imposed on Mr Waites. The appellant argued that the SSAT had not adequately considered relevant mitigating factors and had imposed a penalty that was excessive and disproportionate to the offence. The respondent, the SSAT, contended that its decision was well-founded and in accordance with the law and relevant precedents.

The Supreme Court found that the SSAT had erred in its consideration of the mitigating factors and had failed to properly weigh these in its decision-making process. The Court determined that the penalty imposed was indeed disproportionate to the offence, given the circumstances of the case. The Court also found that the composition of the SSAT panel may have influenced the outcome, given the nature of the appellant’s grievances. As a result, the appeal was allowed, and the matter was remitted to the SSAT for re-hearing by a differently constituted Tribunal.

Orders

Orders of the court

The appeal be allowed.

The matter be remitted to the SSAT for re-hearing by a differently constituted Tribunal.

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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