Watanabe and Watanabe (SSAT Appeal)
[2009] FMCAfam 671
•28 July 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WATANABE & WATANABE (SSAT APPEAL) | [2009] FMCAfam 671 |
| CHILD SUPPORT – Appeal from SSAT – percentage of care – whether interpretation of orders constituted an error of law. |
| Child Support (Assessment) Act 1989, ss.98, 117 Child Support (Registration and Collection) Act 1988, s.110B |
| Construing Undertakings and Court Orders (2008) 82 ALJ 82 Repatriation Commission v Nation (1995) 57 FCR 25 Yates Property Corp Pty Ltd v Boland (1998) 89 FCR 78 Australian Energy Ltd v Lennard Oil NL [No.2] [1988] 2 Qd R 230 Owston Nominees No 2 Pty Ltd v Branir Pty Ltd (2003) 129 FCR 558 at 569 Athens v Randwick City Council (2005) 64 NSWLR 58 |
| Applicant: | MS WATANABE |
| Respondent: | MR WATANABE |
| File Number: | BRC 1556 of 2009 |
| Judgment of: | Slack FM |
| Hearing date: | 11 June 2009 |
| Date of Last Submission: | 11 June 2009 |
| Delivered at: | Brisbane |
| Delivered on: | 28 July 2009 |
REPRESENTATION
| Counsel for the Applicant: | Ms Farr |
| Solicitors for the Applicant: | McMillan Boylson Lawyers |
The Respondent appeared on his own behalf.
ORDERS
That the Appeal be allowed.
That the Application be remitted to the Social Security Appeals Tribunal for rehearing.
IT IS NOTED that publication of this judgment under the pseudonym Watanabe & Watanabe is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 1556 of 2009
| MS WATANABE |
Applicant
And
| MR WATANABE |
Respondent
REASONS FOR JUDGMENT
This is an appeal from the decision of the Social Security Appeals Tribunal (hereafter “the SSAT”) dated 28 January 2009. There are two grounds of appeal.
The decision
The decision of the SSAT was to set aside the decision under review and substitute a new decision that Mr Watanabe has 14% care of the two children from 17 July 2008.
The scheme of the Act
The quantum of child support payable by a parent arises from the operation of s.77 of the Child Support (Assessment) Act 1989 (hereafter the “Assessment Act”).
It is the Notice of Assessment that determines the amount of the daily rate of child support payable by a liable parent.
“Percentage of care”
The relevance of the determination by the SSAT is that, pursuant to s.35 of the Assessment Act, in order to work out the annual rate of child support payable for a day in a child support period, it is necessary to work out each parent’s percentage of care.
The calculation of percentage of care is to be worked out in accordance with sub-division (b) of Part 4 Division 4 (s.48(2) of the Assessment Act).
The note to s.48(2) of the Assessment Act indicates that a person’s percentage of care for a child is worked out based on the number of nights that the child is likely to be in the care of the person during the care period. There is nothing in the Assessment Act, however, that requires the Child Support Registrar (hereafter “the Registrar”) to calculate percentage of care on the basis of nights.
In this matter, the Registrar was to determine the percentage of care for the 12 month period commencing 17 July 2008.
Relevantly, having regard to s.49 of the Assessment Act, the percentage of care that a parent is likely to have during a care period, is determined by:
a)an oral agreement between the parents of the child that the Registrar is satisfied has been made; or
b)a Court order that relates to the parents or relates to the child;
if the Registrar is satisfied that the order allows such a percentage to be determined.
In this matter there were Court orders made on 10 April 2008 by Federal Magistrate Baumann (hereafter ‘the orders”). The orders were amended under the slip rule on 15 May 2008.
In this matter it is not in dispute between the parties that the Registrar (and upon review, the SSAT) was entitled to have regard to the orders to determine the percentage of care.
Review process
Pursuant to s.34(c) of the Assessment Act, the Registrar must assess, under this Act, the annual rate of child support payable for a child for days in a child support period either before or as soon as practicable after the start of the period.
Under s.66(d) of the Assessment Act, the Registrar may act on the basis of the documents and information in his or her possession.
An objection may be made to a decision of the Registrar as to the particulars of an administrative assessment (s.80 of the Assessment Act).
The SSAT can review a decision made on the objection, pursuant to s.87(1) of the Assessment Act.
Relevantly the Registrar on 20 August 2008 decided to record that
Mr Watanabe had care of the children for 55 nights annually. The applicant lodged an objection to that decision on 27 August 2008. On
6 November 2008an objections officer of the Child Support Agency allowed the objection and recorded Mr Watanabe as having 54 nights of care annually of the children from 17 July 2008.
The applicant appealed that decision to the SSAT on 26 November 2008.
The applicant now appeals the decision of the SSAT to this Court.
The orders
Central to this dispute has been the interpretation of Order 15 of the orders.
Order 15 of the orders provides:
That the father’s care of the children pursuant to paragraph 14(a)-14(f) inclusive herein, be suspended during the periods of holiday time referred to in paragraph 14(h)-14(k) herein.
Grounds of appeal
In the Notice of Appeal, the applicant asserts that the following questions of law arose from the decision of the SSAT and that the SSAT fell into error in:
(a) that it failed to properly interpret the Court orders of His Honour Federal Magistrate Baumann made on 10 April 2008 and varied on 15 May 2008;
(b) erred in law in upholding the decision of the Child Support Registrar that the respondent cared for the children for 54 nights of the children annually.
Decision - discussion and conclusion
During the course of the reasons, the SSAT set out (para.14 of the reasons) a schedule of the dates upon which the parties each contended Mr Watanabe is entitled to the care of the children under the Court orders. Relevantly the dispute between the parties, before the SSAT, was as to whether the respondent was entitled to the care of the children on the nights of 6 and 20 December 2008; 10 and 11 April 2009; and 19 and 20 June 2009.
It is not in dispute that those dates fall within the Queensland school holiday periods.
Relevantly Order 15 of the orders provides as follows:
That the father’s care of the children pursuant to paragraph 14(a)-14(f) inclusive herein, be suspended during the periods of holiday time (my emphasis) referred to in paragraph 14(g)-14(k) herein.
The applicant argues:
a)that the plain meaning of Order 15 is to suspend weekend time during the school holidays ( my emphasis);
b)that the finding of the SSAT that if it was indeed otherwise then the Tribunal can only observe that the wording of the orders was not such as to give effect of this intention was wrong in law;
c)if the order is interpreted in the way the SSAT did, then the effect of that interpretation is to render the order nugatory in that there is no necessity to suspend time that the father has already been awarded with the children by virtue of the operation of paragraph 14(g).
The respondent, of course, contends that the interpretation of Order 15 by the SSAT was, in fact, plainly correct.
The SSAT rejected the applicant’s submission that the effect of paragraph 15 is to suspend weekend time during school holidays as, according to the SSAT, that contention is not tenable on the plain wording of paragraph 15. It is not clear to me that the wording of Order 15 is clear and unambiguous. The phrase periods of holiday time is not otherwise defined in the orders. The phrase holiday time only otherwise appears as a heading.
The relevant Orders 14(g) and (k) make reference to holiday time to be spent by the children with their father during school holidays.
In a useful article, Construing Undertakings and Court Orders (2008) 82 ALJ 82, the author John Tarrant, refers to a number of decisions. Mr Tarrant identifies two lines of authority on the approach to the interpretation of Court orders.
In Repatriation Commission v Nation (1995) 57 FCR 25, the Full Court of the Federal Court (Beaumont J, with whom Black CJ and Jenkinson J agreed), said (at 34):
Under the ordinary rules of construction, evidence of surrounding circumstances is admissible to assist in the interpretation of an instrument if the language is ambiguous or susceptible to more than one meaning but not admissible to contradict the language of the instrument when it has a plain meaning.
In his article Mr Tarrant identifies a second line of authority that supports the proposition that the reasons for judgment must be referred to so as to ensure that Court orders are interpreted in the correct context.
He refers to the decisions of Yates Property Corp Pty Ltd v Boland (1998) 89 FCR 78 and Australian Energy Ltd v Lennard Oil NL [No.2] [1988] 2 Qd R 230. In particular, reference is made in the decision of Yates Property to the remarks of Drummond J (at 78) that it is impermissible, in my view, as well as being quite unrealistic, to attempt to read, that is, to understand, an order in isolation from the context of the reasons for it being made.
I do not consider it necessary to resolve the apparent difference in the lines of authority on the use of extrinsic material in the interpretation of orders. In this matter I consider that the orders are not clear and unambiguous and the SSAT would have been (had they known of the existence of the material) entitled to not only rely upon extrinsic evidence but, as a matter of law, should have relied upon extrinsic material if that material clarified the intention or intended effect of the orders.
As to what additional material can be referred to in interpreting Court orders:
a)In Owston Nominees No 2 Pty Ltd v Branir Pty Ltd (2003) 129 FCR 558 at 569, Allsop J, in considering the exercise of power to deal with entered orders said:
the reasons, the pleadings and, if necessary, the evidence and how the case was conducted may be relevant extrinsic evidence.
b)In Athens v Randwick City Council (2005) 64 NSWLR 58, Santow JA said that if an order was ambiguous and the ambiguity could not be resolved by reference to the judgment then resort may be had to the proceedings and in particular the pleadings, which provide an interpretive context.
It would frequently be the case in family disputes that the matter is resolved with the consent of the parties without hearing and hence there would unlikely be such material. Whilst the subjective intention of the parties would not be relevant to the construction of the orders, I consider evidence of the common intention of the parties at the time the orders were made would be admissible and in that regard evidence about the manner in which the parties have interpreted the orders may be relevant extrinsic evidence as to the common intention of the parties.
It is not clear from the reasons whether the SSAT made reference to any extrinsic material in construing the orders. During the course of submissions in this matter, it was not clear that the parties had placed any extrinsic material before the SSAT. The s.110K documents provided by the SSAT for the Appeal do not contain the reasons of Baumann FM. In submissions the parties acknowledged that the reasons of Baumann FM were not before the SSAT. The wife now alleges that there was a further mention of the matter before Baumann FM when this particular controversy was raised and there was some clarification of the orders provided by Baumann FM (the husband seems to dispute that).
I consider that whilst the SSAT could have relied upon extrinsic evidence to assist in the interpretation of the orders, given that the parties did not seek to put any further material including the reasons of Baumann FM before the SSAT, the question then becomes whether that was an error of law. It seems to me that the answer to that question depends upon whether the material was likely to assist in the clarification of the orders or the intention of the orders.
In this matter the parties did put the reasons of Baumann FM before me during the course of submissions.
During the course of submissions before me, it was opened that there was some further consideration of this particular controversy by Baumann FM at the time he made the orders. The transcript of that hearing is not before me and was not properly before the SSAT. The reasons themselves, at para.86, indicate that on 10 April 2008 there was to be determination of any issues in dispute as to form of the orders suggesting that there may have been some clarification of this controversy.
The respondent made submissions that the material presented by the applicant to the SSAT was convincing evidence that she in fact had understood and interpreted the orders in the way that the SSAT ultimately found. There was a document apparently prepared by the applicant (page 41 of the paperwork from the Child Support Agency) that did seem to concede that the children were to be with their father on some of the controversial nights.
The reasons
The reasons do provide some specific and general assistance.
For example:
a)Para 66 of the reasons provides that the father’s proposal is more appropriate than the mother’s proposal, although slightly modified by me”. I do not have the father’s proposal before me and, as far as I am aware, it was not placed before the SSAT.
b)The reasons (paras 79 and 80) contain some discussion about the modifications proposed by Baumann FM to the father’s proposal.
I consider that para.80 of the reasons seems to clarify the intention of the orders from the end of Term 1 in 2009 (see para 80). It would seem to me, having regard to para 80 of the reasons, that it was the intention of the orders to suspend the children’s weekend time with their father during school holidays from the end of Term 1 in 2009. Otherwise there would not have been a need to change the weekend arrangements after the school holidays unless it were intended that the weekend arrangements not continue during the school holidays. I do not consider that that necessarily indicates the opposite position before that time.
I am, however, not aware of the further comments that the applicant says Baumann FM made in relation to this controversy and I would not want to bind any future tribunal on this issue. Suffice to say that I consider that there was significant extrinsic material that is likely to have assisted the SSAT to determine the construction of the orders.
Given that the SSAT was not apprised of this additional material by the parties, it could not be said that the SSAT was in error for not relying upon it. However it does seem that there is significant extrinsic material that should be considered in the interpretation of these orders. The controversy to be resolved is whether the children were to spend these disputed days with their father and at one level the controversy is not significant. However the outcome of findings will have a significant impact on the amount of child support to be paid or financial contributions by each party for the children during the relevant period and, in my view, the justice of the matter requires a further review with a proper consideration of all the relevant material which, on this analysis, should include the reasons; any reasons delivered at the time orders were made or subsequently in relation to the orders; the proposal made by the father at the hearing; the manner in which the parties have interpreted the orders in their written communications to each other and the Child Support Agency and the SSAT.
Re-exercise of the discretion
Ordinarily this is a matter where I might consider the re-exercise of my discretion in relation to the matter. This is unfortunately not a matter in which the discretion can be re-exercised on the existing material.
There are two difficulties to such a course:
a)It was submitted that there were other reasons provided by Baumann FM in relation to this particular issue and (although that seems to be disputed by the respondent) it, nevertheless, seems relevant and appropriate that an opportunity be given to present that evidence.
b)There is a factual dispute between the parties as to the interpretation that was, in fact, understood and given by the applicant to the orders when she prepared documents for the SSAT. It does not appear that issue was considered by the SSAT at the time of the hearing.
Any hearing on this issue would require some consideration of these issues and I consider that the matter ought to be remitted to the SSAT.
I do not consider it necessary for a differently constituted Tribunal to reconsider the matter but I will leave the management of that issue to the determination of the Social Securities Appeals Registrar and any subsequent application by either party. I could not reach a conclusion that the Tribunal which heard the matter has any perceived predetermination of the matter given that the Tribunal was not apprised of this additional material by the parties.
I certify that the preceding forty nine (49) paragraphs are a true copy of the reasons for judgment of Slack FM
Associate: Karen Smith
Date: 27 July 2009
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