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Natural justice denied to father in child support case - SSAT dealt to by Federal Magistrates

Natural justice denied to father in child support case - SSAT dealt with by Federal Magistrates

Monday 7 January 2008

It is important for tribunals, such as the Social Security Appeal Tribunal (SSAT), to observe the rules of natural justice when making their decisions. This case involved the question of whether procedural fairness had been accorded to one of the parties, the father, appearing at the tribunal. The court came to the conclusion that the father had not been accorded procedural fairness by the SSAT and its decision was set aside.

The father and mother shared care of their two children from the date of their separation until early October 2006 when the father took care of them full time. The father had been assessed to pay child support to the mother notwithstanding that the care of the children was shared.

The father had sought a departure from the assessment on the basis of the mother's income earning capacity. Prior to their separation the parents were both working at an executive level in the public service. Four years after separation the mother accepted a voluntary redundancy package and did not gain any employment thereafter. The application was ultimately determined in the Federal Magistrates Court and the judge accepted medical evidence that the mother was unable to work, see P & R [2006] FMCAfam 18.

In July 2006 the father commenced a period of unpaid sick leave, electing to preserve his paid sick leave entitlements for the future. This had the effect of reducing the child support payment to be made by the father to nil.

The mother sought an increase in the child support payment to account for orthodontic expenses and on the basis that the father had paid sick leave entitlements which he had elected not to access.

The objection officer made a decision increasing the father's income amount based on the paid sick leave entitlements, but decided that it would not be "just and equitable" to retrospectively increase the assessment payable by the father as the children were then living with the father and the mother was not making any child support payments.

The father objected to his paid sick leave entitlements being taken into consideration and he applied to the SSAT for a review of the decision. The SSAT held a hearing with the father and gave him the opportunity to make submissions. Neither the mother nor the registrar participated in the hearing.

The SSAT set aside the decision under review and sent the matter back to the registrar with directions regarding the father's income and the amount his child support payments were to be increased for the relevant period. The effect of the decision was to create a retrospective debt owing by the father to the mother.

The father appealed the decision of the SSAT to the Federal Magistrates Court on the basis, inter alia, that he was denied procedural fairness in the conduct of the appeal and that the SSAT failed to take relevant considerations into account.
The court allowed the appeal by the father and held the following:

1. It is incumbent upon a tribunal or court to ensure that the parties affected are aware the tribunal is considering issues beyond those on which the parties have conducted their case, see para 47.

2. The appellant had not been accorded procedural fairness at the SSAT hearing and the decision of the SSAT should be set aside, see para 55.

3. When the SSAT makes a decision to increase a child support assessment it must consider the relevant considerations contained in s 117(4) of the Child Support (Assessment) Act 1989 before it can be satisfied that the change proposed will be "just and equitable", see para 76.
The full judgment is reproduced in PJ & Child Support Registrar (SSAT Appeal) [2007] FMCAfam 829 (15 October 2007).

(aka PJ &Child Support Registrar(2007) FLC 98-035)
PJ & Child Support Registrar
(2007) FLC 98-035

Court citation: [2007] FMCAfam 829

Federal Magistrates Court of Australia

Case 15 October 2007

Child support – Appeal from SSAT procedural fairness – Whether tribunal process appropriate – Whether tribunal failed to give applicant notice of issues being considered – Departure application – Whether tribunal took relevant considerations into account – Failure to consider relevant factors in determining what assessment would be "just and equitable" – Financial resources – Availability of paid sick leave – Child Support (Assessment) Act 1989, Pt 6A, Pt 6B, s 98S, 117 – Child Support (Registration and Collection) Act 1988.

The father and mother shared care of their two children from the date of their separation until early October 2006 when the father took care of them full time. The father had been assessed to pay child support to the mother notwithstanding that the care of the children was shared.

The father had sought a departure from the assessment on the basis of the mother's income earning capacity. Prior to their separation the parents were both working at an executive level in the public service. Four years after separation the mother accepted a voluntary redundancy package and did not gain any employment thereafter. The application was ultimately determined in the Federal Magistrates Court and the judge accepted medical evidence that the mother was unable to work, see P & R[2006] FMCAfam 18.

In July 2006 the father commenced a period of unpaid sick leave, electing to preserve his paid sick leave entitlements for the future. This had the effect of reducing the child support payment to be made by the father to nil.

The mother sought an increase in the child support payment to account for orthodontic expenses and on the basis that the father had paid sick leave entitlements which he had elected not to access.

The objection officer made a decision increasing the father's income amount based on the paid sick leave entitlements, but decided that it would not be "just and equitable" to retrospectively increase the assessment payable by the father as the children were then living with the father and the mother was not making any child support payments.

The father objected to his paid sick leave entitlements being taken into consideration and he applied to the Social Security Appeal Tribunal (SSAT) for a review of the decision. The SSAT held a hearing with the father and gave him the opportunity to make submissions. Neither the mother nor the registrar participated in the hearing.

The SSAT set aside the decision under review and sent the matter back to the registrar with directions regarding the father's income and the amount his child support payments were to be increased for the relevant period. The effect of the decision was to create a retrospective debt owing by the father to the mother.

The father appealed the decision of the SSAT to the Federal Magistrates Court on the basis, inter alia, that he was denied procedural fairness in the conduct of the appeal and that the SSAT failed to take relevant considerations into account.

Held: appeal allowed.

1. It is incumbent upon a tribunal or court to ensure that the parties affected are aware the tribunal is considering issues beyond those on which the parties have conducted their case, see para 47.

2. The appellant had not been accorded procedural fairness at the SSAT hearing and the decision of the SSAT should be set aside, see para 55.

3. When the SSAT makes a decision to increase a child support assessment it must consider the relevant considerations contained in s 117(4) of the Child Support (Assessment) Act 1989 before it can be satisfied that the change proposed will be "just and equitable", see para 76.

[Headnote prepared by CCH FAMILY LAW EDITORS]

The applicant appearing in person.

Counsel for the respondent: Ms Sekler.

Solicitors for the respondent: Australian Government Solicitor.

Before: Riethmuller FM.
Also see FLWG My recent experience with SSAT

Attachment
Edited

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