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Fathers capacity to work

In this SSAT appeal decision handed down by FM Slack, the Federal Magistrates Court found that the SSAT had erred in its finding of the extent of the applicant fathers capacity to work.

Hadley & Hadley(2009) FLC

In this SSAT appeal decision the Federal Magistrates Court found that the SSAT had erred in its finding of the extent of the applicant fathers capacity to work.

The parties had two children and the appeal was brought over outstanding child support for a period from 2006 to 2008. An assessment of $8,840 had been fixed by way of departure decision and an objection to that decision was disallowed on 1 September 2006. The applicant brought a subsequent application for change in assessment that was refused and an objection was disallowed on 1 September 2006. A subsequent claim for support based on Mr Hadleys income being nil was contested by Mrs Hadley. It was found that the applicant had no income beyond a Centrelink benefit. Both parties objected to the decision.

Appeals to the Tribunal were made on 21 and 27 September by Mr and Mrs Hadley respectively. The period of review determined by the Tribunal was 23 May 2006 onwards. The Tribunal reviewed the child support from May 2006 to June 2008. The Tribunal set aside the decision under review and determined an amount for January to December 2007 and for January to June 2008 but not for May to December 2006. In addition, the Tribunal found that Mr Hadley was able to earn $36,000 based on a clerical rate.

In allowing the appeal the court found that:

 1. Objection decisions made during 2006 were not reviewable by the SSAT under Item 77(3) of Sch 3 of the Child Support Legislation Amendment (Reform of the Child Support Scheme  New Formula and Other Measures) Act 2006 (the Reform Act) and should be set aside.

 2. In relation to the 2007/8 period the medical evidence confirmed that Mr Hadley was incapable of employment for an undetermined time.

 3. The SSATs decision to address s 117(7B) of the Child Support (Assessment) Act 1989 looking at whether the parents earning capacity is greater than is reflected in his income was not necessary but rather the proper question was whether the applicants decision not to work was appropriate.

 4. The ground referred to in s 117(2)©(ia) and s 117(2)©(ib) was not made out given that the Tribunals finding that Mr Hadley had not ceased work on medical grounds was not justified on the evidence, the evidence did not support a finding that the applicants income was $36,000 and reliance on Dr Cs evidence was misguided.

 5. The decision relating to 2007 should be set aside.

 6. The decision relating to 2008 should be set aside on the same basis as the decision for the 2007 period.

It is appropriate in my view for the matter to be reheard in the SSAT because the matter is likely to be less costly and to have a quicker determination than might be available in this Court.

Attachment
Hadley & Hadley(2009) FLC - RTF

Executive Secretary - Shared Parenting Council of Australia
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