Watanabe & Watanabe (SSAT Appeal)
[2010] FMCAfam 94
•11 February 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WATANABE & WATANABE (SSAT APPEAL) | [2010] FMCAfam 94 |
| CHILD SUPPORT – Appeal from SSAT – interpretation of orders – percentage of care – how to be calculated. |
| Child Support (Assessment) Act 1989 |
| Applicant: | MR WATANABE |
| Respondent: | MS WATANABE |
| File Number: | BRC1556 of 2009 |
| Judgment of: | Slack FM |
| Hearing date: | 28 January 2010 |
| Date of Last Submission: | 28 January 2010 |
| Delivered at: | Brisbane |
| Delivered on: | 11 February 2010 |
REPRESENTATION
The Applicant appeared on his own behalf.
The Respondent appeared on her own behalf.
ORDERS
That the Notice of Appeal (Child Support) filed on 5 October 2009 be dismissed.
That the Respondent’s application for costs be dismissed.
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 |
BRC1556 of 2009
| MR WATANABE |
Applicant
And
| MS WATANABE |
Respondent
REASONS FOR JUDGMENT
This is an appeal from the decision of the Social Security Appeals Tribunal (hereafter “the SSAT”) dated 8 September 2009.
The decision
The decision of the SSAT was to:
Set aside the decision under review and substitute a new decision to not amend Mr Watanabe’s recorded percentage of care of [X] and [Y] from 17 July 2008.
Background to the Appeal
The Respondent to this appeal appealed a decision of the SSAT dated
28 January 2009.
On 28 July 2009 I allowed the respondent’s appeal and remitted the matter to the SSAT.
This appeal arises from the rehearing by the SSAT, save that in this appeal, Mr Watanabe is the applicant.
The reasons given by me in the first appeal remain relevant to this appeal and for the purposes of these reasons I adopt the reasons for my decision dated 28 July 2009. In those reasons I set out the background to this matter and that background remains relevant to this appeal.
Grounds of appeal
The Ground of Appeal in the Notice of Appeal (Child Support) is that the Tribunal erred in law in determining that the percentage of care provided by the parents in the case fairly reflected in the number of nights of care.
Upon consideration of the applicant’s affidavit material and the submissions made in the matter, the applicant identified two grounds of appeal, as far as I can determine:
a)That the SSAT erred in the way that it interpreted the orders of Federal Magistrate Baumann made on 10 April 2008 and in doing so, miscalculated the number of nights the children were in his care (or should have been in his care) for the child support period commencing 17 July 2008.
b)That the SSAT, in determining his application using the number of nights that the children were in his care, erred in that it failed to take into consideration the actual amount of time the children were in his care and a proper consideration of the amount of time results in a conclusion that the children were in his care for more than 14% during the relevant child support period.
The decision of the SSAT
The application relates to the child support period commencing 17 July 2008. The consequence of having 14% of care or less than 14% of care is discussed in the reasons (see para.11of the reasons).
If the calculation is done with reference to nights then 14% is 52 nights in the year.
Central to this dispute between the parties is the interpretation of the orders of FM Baumann and in particular whether those orders intended that the applicant should have the children in his care on weekends during the school holidays in the relevant child support period.
The SSAT carefully considered the nights that the children were to spend with the applicant during the relevant period that were agreed by the parties to be in accordance with the orders of FM Baumann. The finding (para.23 of the reasons) that the applicant would have at least 43 nights during the relevant period does not appear contentious.
The disputed nights were 6 and 20 December 2008; 3 and 17 January 2009; 10 and 11 April 2009; and 19 and 20 June 2009.
In relation to the disputed nights, the SSAT came to the conclusion that even on an interpretation of the orders as was submitted by the applicant, the applicant would have likely had 49 nights care of the children during the 12 months from 17 July 2008.
In his affidavit sworn 28 September 2009, the applicant does not seem to challenge the finding of 49 nights (see the last page of the affidavit).
Whilst I do not necessarily agree with the SSAT conclusion that weekend time was to continue during school holidays after the end of the first term in 2009 (my view of FM Baumann’s reasons at para.80 are sufficiently clear to satisfy me that weekend time was not to continue during those holiday periods), in any event the calculation by the SSAT (which seems to accept many of the applicant’s submissions) does not result in a conclusion that the children were in his care or likely to be in his care for 14% of the time.
Hence that Ground of Appeal should fail.
Did the SSAT err in relying upon the number of nights the children were in the care of the applicant to calculate the percentage of care?
The Child Support (Assessment) Act 1989 (hereafter the “Assessment Act”) does not specify the manner in which the percentage of care ought to be calculated. The SSAT correctly identified (see para.34 of the reasons):
The note to subsection 48(2) states that ‘Generally, 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.’
The applicant submits that in the relevant period the children were in his care initially for the day only and when overnight time commenced they were in his care for two full days. He submits that to calculate the percentage of care by reference to nights results in an unjust determination of the level of care actually provided by him and as a result is an error of law. Alternatively he argues that the SSAT should have considered a calculation other than nights and the failure to do so results in an error in law. He calculates that if the determination had been based on hours of time that the children were in his care that would mean that they were in his care for greater than 14% of the relevant period.
The applicant conceded during submissions in this appeal that he had not raised this particular argument with the SSAT.
The SSAT were alert to the fact that the Act did not bind them to determine the percentage of care based on the number of nights. The SSAT determined (see para.34 of the Reasons):
While it is open to the Tribunal to calculate the percentage of care by some other method, such as hours, the care likely to be provided by the parents in this case is fairly (but not precisely) reflected in the number of nights of care.
The Assessment Act does not prescribe the matters or factors that ought to be taken into account in how to assess the percentage of care. The discretion, though, ought to be exercised within the framework provided by the Act, in particular, the objects of the Act (s.4 of the Assessment Act). I do not though consider that this exercise should become an exercise in mathematical accounting. The nature of the consideration is not capable of precision because the costs of children is not confined to their daily needs nor are those costs uniform across the year (and the Assessment Act recognises that fact).
Whilst the applicant now contends that an assessment based on his arguments about time in care results in the conclusion that the children were with him for more than 14% of the time, that is not something that he argued before the SSAT. I accept that that is not necessarily the end of the consideration in this matter but it is clear that the SSAT was alert to the fact that in the exercise of its discretion, it was not bound to simply rely upon the number of nights the children were in the care of the applicant.
I am also not satisfied, in the exercise of the discretion in the way that it did, that the SSAT were wrong. Whilst they did not set out the particular factors taken into account for determining the matter on the basis of nights, I am satisfied that the reasons do adequately explain the basis for proceeding in that way and the Assessment Act clearly indicates that as an appropriate course in most instances.
I am also not satisfied that the outcome from that approach is unjust.
I am not satisfied that there is any substance to this Ground of Appeal.
For the reasons I have given the appeal must be dismissed.
Costs
The respondent seeks an order for costs in the matter.
The respondent represented herself throughout these proceedings and her submission in relation to costs seems to relate to previous proceedings between the parties. Indeed she seeks an order that the applicant pays my costs of and incidental to these proceedings spanning from January 2008.
I am not persuaded that I ought to consider any application for costs beyond those costs that were incurred in relation to this appeal.
The respondent, as I indicated, represented herself throughout these proceedings and I am not aware of any legal costs or other costs that she has incurred in relation to this particular appeal that might be the subject of some proper claim.
In the circumstances I consider I should dismiss the application.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Slack FM
Associate: Karen Smith
Date: 11 February 2010
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