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Chamberlain & Slade [2012] FMCAfam 658

Categories: Carers Allowance, Child Support
Tags: , , , , , , , , ,

Judge Name: Brown FM
Hearing Date:
Decision Date:12/07/2012
Applicant: Mr Chamberlain
Respondent: Ms Slade
Solicitor for the Applicant:
Counsel for the Applicant: In Person
Solicitor for the Respondent: No appearance
Counsel for the Respondent: No Appearance
File Number: ADC 207 of 2008
Legislation Cited: Child Support (Assessment) Act 1989, ss.66A; 66(5)
Child Support (Registration & Collection) Act 1988, ss.110B; 110G(1), 110G(2)
Cases Cited: Chamberlain & Slade[2008] FMCAfam 37
Repatriation Commission v Owens(1996) 70ALJR 904
Neal v Secretary, Department of Transport(1980) 3 ALD 97
Comcare v Etheridge [2006] FCAFC 27
Blackwood Hodge (Australia) Pty Ltd v Collector of Customs (No.2) (1980) 33 ALD 38
Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR
LDME & JMA [2007] FMCAfam 712
Apthorpe v Repatriation Commission (1987) 13 ALD 656
Re Minister for Immigration & Multicultural Affairs: Ex Parte Applicant S20/2002 (2003) 198ALR 59
Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprise Pty Ltd [1993] 43 FCR 280
LDME & JMA [2007] FMCAfam 712
Re Minister for Immigration & Multicultural Affairs: Ex Parte Durairajasingham (2000) 168 ALR 407
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Aronson & Dyer: Judicial Review of Administrative Action (2nd Edition) 2000 LBC Information Services at p.300
Jurisdiction: Family Law Division of the Federal Magistrates Court of Australia
Parental Responsibility Outcome: Not Relevant
Residential Outcome: Not Relevant


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ORDERS

The amended notice of appeal filed 15 March 2011 is dismissed.

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

REASONS FOR JUDGMENT

Introduction

This is an appeal from a decision of the Social Securities Appeal Tribunal “the SSAT” dated 13 October 2010. Pursuant to section 110B of the Child Support (Registration & Collection) Act 1988 “the Collection Act” the only ground on which such an appeal can be bases is an error arising from a question of law.

The appellant is Mr Chamberlain. The formal respondent to the application is Ms Slade. They are the parents of X born (omitted) 1997. The records of the Child Support Agency indicate that X is in the primary care of Ms Slade – that means that X lives with her mother for 365 nights per annum. This is a relevant consideration so far as the calculation of child support is concerned.

It is an understatement to say that the parties have been involved in frequent episodes of litigation with one another in both this court and the Family Court. There have been multiple proceedings between the parties.

These proceedings have invariably been instigated by Mr Chamberlain and have very often concerned issues to do with child support. I have summarised some of Mr Chamberlain’s earlier applications in a prior judgment.

At present, as I have indicated above, the parties’ child X lives exclusively with Ms Slade. She is employed as a (omitted). At the times, which are relevant to the hearing of this appeal, Mr Chamberlain has not been in the paid workforce. In these circumstances, Ms Slade is resigned to the fact that the current proceedings will have little practical application so far as the level of financial support to be provided to her for X.

The decision of the SSAT arises in respect of a child support period from 4 January 2010 to 3 April 2011. During a significant part of this period, Mr Chamberlain was not in receipt of direct social security payments referable to either his unemployment; his invalidity; or other sickness. Rather, for the relevant periods, he received a payment categorised as a Carer Allowance.

The Australian Government, through its Centrelink Department, has described a carer allowance as follows:

“Carer Allowance is a supplementary payment that may be available to you if you are a parent or carer who provides additional daily care and attention for an adult or child with a disability or medical condition, or for an adult who is frail aged. Carer Allowance is free of the income and assets test, is not taxable and can be paid in addition to wages, Carer payment or any other Centrelink payment.”

Mr Chamberlain qualified for a carer allowance whilst he was caring for his mother, who is subject to a significant level of disability because of her age. The level of this allowance paid to Mr Chamberlain was $106.00 per fortnight. At all relevant times, this was the only “income stream”, using this expression in a loose form, which Mr Chamberlain received.

The issue arising in this appeal is whether this sum is to be regarded as income for child support purposes and whether it is legally appropriate for Mr Chamberlain to be assessed to pay the statutory minimum amount of child support to Ms Slade for X, which at relevant times stood at an amount of $360.00 per annum.

The Child Support Registrar has a discretion, arising from section 66A of the Child Support (Assessment) Act 1989, to reduce the annual statutory amount of child support to nil. A delegate of the Registrar declined to exercise this discretion in Mr Chamberlain’s favour during the period of time he was in receipt of a carer’s allowance. On 8 June 2010, this decision was confirmed by an objections officer within the Child Support Agency. This led to Mr Chamberlain’s appeal to the SSAT.

Mr Chamberlain concedes that, if he is successful in his appeal, it will result in him having a credit in a sum of around $240.00 with the Child Support Agency. I accept that, from his perspective, this case concerns a matter of principle. The period in question is from September 2009 to April 2010.

However, this is not a view shared by Ms Slade. At an earlier stage in the proceedings, she wrote to the court in the following terms:

“I request that I be excused from attending on November 7, 2011 at 2.15 pm. I continue to work night duty as a permanent part of my employment and the timing of this matter severely impacts upon my ability to attend to my work duties. I am willing to accept the outcome in this matter and, even if the matter is determined in favour of Mr Chamberlain, such an outcome will have minimal effect on myself as it will mean Mr Chamberlain will not contribute less than $30 a month for his daughter, X.”

Mr Chamberlain’s appeal was previously fixed for hearing on 7 November 2011. He did not attend court promptly on the day in question and his appeal was dismissed. Subsequently, he successfully applied for his appeal to be reinstated.

Ms Slade did not appear at court on the original listing of Mr Chamberlain’s appeal, nor on any subsequent date. I am however satisfied that I can deal with the appeal in the absence of any submissions from her. I accept that the outcome of the matter is of limited interest to her.

The decision of the SSAT, which Mr Chamberlain seeks to challenge as being erroneous at law, is its decision not to disallow a decision of the delegate of the Child Support Registrar not to reduce his minimum assessment of child support to nil. Mr Chamberlain’s appeal to the SSAT in respect of this issue was heard on 2 September 2010. On 12 October the SSAT decided to affirm the decision of the Objections Officer made on 8 June 2010.

The nature and legislative basis of appeals to this court from the SSAT

The nature of an appeal to this court, from a decision of the SSAT, is governed by the provisions of Division 5 of Part 7A of the Collection Act, in particular section 110B, which reads as follows:

“A party to a proceeding before the SSAT under Part VIIA may appeal to a court having jurisdiction under this Act, on a question of law, from any decision of the SSAT in that proceeding.”

This court is authorised to hear such appeals from the SSAT by virtue of the provisions of section 110E of the Collection Act. Pursuant to section 110F of the Collection Act, having determined any such appeal, I am authorised to make any order, which I believe is appropriate but particularly may:

affirm or set aside the decision of the SSAT; or

remit the case to be heard again by the SSAT, either with or without the hearing of further evidence.

The first question to consider is what is the nature of an appeal on a “question of law”? The provisions of the Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006 has significantly reformed the review process in respect of administrative decisions of the Child Support Registrar. The legislation has inaugurated an independent process of review through the SSAT. This process is external of the Agency’s processes and is administrative in nature.

The intent evinced by the legislature, in limiting any appeal from the SSAT to a question of law, is to ensure that the merits of the case are dealt with not by this court but by the SSAT. The High Court has characterised “this distribution of function [as] critical to the correct operation of the administrative review process.”

Accordingly, pursuant to the provisions of section 110B, any further appeal from the SSAT is limited in nature. It is limited only to an examination of how the SSAT applied or failed to apply the applicable principles of law, which were relevant to the determination of the appeal issue which came before it.

As such, an appeal to this court, pursuant to section 110B, does not constitute a rehearing on the merits of the case nor should this court, other than in exceptional circumstances, challenge findings of fact made by the SSAT.

The power of this court, in an appeal from the SSAT, to make finding of facts is limited by the provisions of section 110G of the Collection Act. The court may make a finding only if the following two provisos are satisfied:

Such a finding of fact is not inconsistent with findings of fact made by the SSAT – other than findings made by the SSAT as a result of an error of law.

It is convenient for the court to make such findings of fact.

Pursuant to section 110G(2), for the purpose of making such findings of fact, the court may either have regard to the evidence given in proceedings before the SSAT itself or receive further evidence. However, it is clear that the power to receive further evidence is dependant upon the court discerning an error of law in the decision of the SSAT, which is subject to appeal. Essentially, this court, in its appellant jurisdiction from the SSAT, must be careful not to allow evidence to be adduced in the expectation advanced by any appellant that an error of law will thus be demonstrated.

Accordingly, this court should not be concerned as to whether or not it would have come to the same conclusion as the SSAT did, but only whether the SSAT erred in law, as it is only in “exceptional circumstances” that the decision of the Tribunal should not be the final decision.

It is the function of this court to determine whether the decision of the SSAT was within its legal powers. That is what is meant by a question of law. It is not the function of this court to examine the merits of that decision. Essentially, it is not the function of this court to reappraise the evidence led before the SSAT and re-determine the case, according to the conclusions it draws from the available evidence.

As such, I should be cautious to approach the decision of the SSAT with “an eye [which is] too keenly attuned to perception of error”. Rather I should take a commonsense approach to what the SSAT was saying in its decision and the reasons why it did said what it said. The function of the SSAT is not to produce reasons of “jurisprudential excellence”. It is to provide an informal and expedient level of independent review.

An administrative tribunal exceeds its powers and thus commits a jurisdictional error, which is correctable on appeal in respect of a question of law, if it:

fails to construe properly the legislative provisions applicable;

identifies the wrong issues or asks itself the wrong questions;

ignores relevant material or relies on irrelevant material;

fails to accord procedural fairness to the party before it;

makes an erroneous finding of such a magnitude that it goes to the very jurisdiction which it purports to exercise rendering its decision perverse or unreasonable or otherwise offending logic.

As Gleeson C.J. pointed out in Re Minister for Immigration & Multicultural Affairs: Ex Parte Applicant S20/2002:

“To describe reasoning as illogical, or unreasonable or irrational, may merely be an emphatic way of expressing disagreement with it. If it is suggested that there is a legal consequence, it may be necessary to be more precise as to the nature and quality of the error attributed to the decision maker, and to identify the legal principal or statutory provision that attracts the suggested consequence.”

In Collector of Customs v Pressure Tanker Pty Ltd and Pazzolanic Enterprises Pty Ltd, the Full Court of the Federal Court, in respect of the Administrative Appeals Tribunal, characterised the nature of an appeal, restricted to a question of law, from a fact finding and decision making tribunal as follows:

“… the nature of the task of this court is clear. It is to leave to the tribunal of fact decisions as to the facts and to interfere only when the identified error is one of law.”

In summary, an appeal on a question of law:

is not a review on the merits or a rehearing;

as such, an appeal on a question of law is not one in which findings of fact, per se, can be called into question;

however, bearing in mind the statutory intent implicit in Part VIII of the Collection Act and the purpose of the Federal Magistrates Court itself, in dealing with SSAT appeals, the court should not be unduly legalistic or pedantic, particularly where the appellant concerned is self-represented;

in reviewing a decision of the SSAT for error, the court should not examine the decision in question with an eye “keenly attuned to the perception of error”.

In brief terms, the requirement that a hearing be procedurally fair requires the decision making tribunal concerned to apply the rules of natural justice. There are two traditional rules of natural justice. Firstly, the hearing rule which requires a decision maker to hear a person before making a decision which affects the interests of that person. Secondly, the bias rule which provides for the disqualification of a decision maker where doubts arise as to the actual or perceived impartiality of the decision maker concerned.

The grounds of appeal

In his amended notice of appeal, filed 15 March 2011, Mr Chamberlain has specified the following grounds of appeal:

“1.All relevant information was not considered.

2.My financial expenses were not considered including medication costs.

3.Property settlement funds were considered as income.

4.Bank amounts were considered as income in full were [sic] it should have been the interest on the bank amounts considered as income.

5.A carers payment should not have been considered as income it is non taxable.

6.SSAT reasons for decision (15) Mr Chamberlain is likely to receive a bonus of $600 July 2010 and added that amount to my earnings this information is from a website.”

Mr Chamberlain has acted on his own behalf in the appeal, for which he prepared his own grounds. In his submissions to the court, he has concentrated on ground five. It his position that it is inappropriate for his carer’s payment to have been considered income, for the relevant period, and for the minimum rate of assessment to be applied to it for child support assessment purposes.

In these circumstances, Mr Chamberlain seeks that the decision of the SSAT made on 12 October 2010 be set aside. In lieu of the decision of the SSAT, Mr Chamberlain seeks that an order be made that his child support income, for the period from 4 January 2010 until 1 August 2010, be reduced to nil.

The relevant legislative provisions

Mr Chamberlain’s appeal relates to provisions contained in Part 5 of Division 8 of the Child Support (Assessment) Act 1989 (hereinafter refereed to as “the Assessment Act”). This is the part of the legislation setting out the applicable legal provisions, which relate to the making of child support assessments, particularly in cases where a minimum annual rate of child support applies.

Pursuant to section 66 of the Assessment Act, the Child Support Registrar is mandated to apply a minimum annual rate of child support if the liable parent does not have at least regular care of the child concerned. Regular care is defined in section 5(2). It relates to a person’s percentage care for the child concerned. It is at least fourteen percent, but less than thirty-five percent.

In the present case, there is no dispute that Mr Chamberlain did not have regular care of X. As such, the Registrar is obliged to fix the minimum annual rate of child support. Pursuant to section 66(5) of the Assessment Act, the minimum annual rate of child support is fixed in the sum of $320.00.

There are other complexities dealt with by section 66. These concern cases where a parent has been assessed to pay child support in respect of a number of other children and issues arise as to the calculation of the minimum rate of child support in respect of each of these cases.

These provisions do not relate to Mr Chamberlain, who has only been assessed to pay child support in respect of X. Mr Chamberlain and Ms Slade have another child. She is Y born (omitted) 1991. Accordingly, she was an adult at relevant times and so she has no application to the current matter.

Pursuant to section 66A the Child Support Registrar has a discretion to reduce a child support assessment to nil in appropriate cases. Essentially, the parent concerned must satisfy the Registrar that during a nominated period he or she had a very low income, which was less than the minimum annual rate multiplied by the total number of the parent’s child support cases.

For the purposes of section 66A income is defined in subsection (4) to mean the following:

“income, in relation to a person, means:

(a)any money earned, derived or received by the parent for his or her own use or benefit, other than money earned, derived or received in a manner, or from a source, prescribed by the regulations for the purposes of this paragraph; or

(b)a periodical payment by way of a gift or allowance, other than a payment of a kind prescribed by the regulations for the purposes of this paragraph.”

Regulation 7D of the Child Support (Assessment) Regulations lists a number of payments which are prescribed pursuant to the provisions of section 66A(4)(b) of the Act. These payments are as follows:

amenity allowances paid to prisoners;

the disability support pension;

pensions paid to veterans who are totally and permanently incapacitated and special rate disability pensions for veterans, where at least 85% of the pension is paid to another person for the provision of ongoing care to the pension recipient.

Accordingly, a carer’s allowance is not a prescribed payment for the purposes of regulation 7D. As previously indicated, it is Mr Chamberlain’s position that the carer’s allowance, which he received in the relevant period, does not fall within the definition of income provided by section 66A(4). In particular, that it was not money earned, derived or received by him for his own use.

The findings of the SSAT

The SSAT is the finder of facts in this matter. The Tribunal took evidence from Mr Chamberlain. It is not my function to re-hear the evidence in this matter. Rather, my function is to determine whether the SSAT committed a jurisdictional error, which vitiates its decision because it made an error of law.

The relevant findings of the SSAT, in this matter, can be summarised as follows:

Mr Chamberlain is the payer of child support and Ms Slade is the payee in respect of X born (omitted) 1997. Mr Chamberlain had below regular care of X.

On 1 April 2010, Mr Chamberlain lodged an application to reduce his minimum child support assessment to nil for the period 1 December 2009 to 1 December 2010. This followed an assessment made on 5 March 2010 that Mr Chamberlain pay the minimum annual rate of $360.00 per annum to Ms Slade.

On 7 April 2010 the Child Support Agency declined to accept Mr Chamberlain’s application.

On 14 April 2010 Mr Chamberlain lodged an objection to this decision. The objections officer disallowed Mr Chamberlain’s objection on 8 June 2010.

It was accepted that Mr Chamberlain had been in receipt of a carer’s allowance since 10 September 2009 in relation to the care he provided to his 77 year old mother.

A carer’s allowance is a fortnightly payment payable by Centrelink that recognises the care provided to a person with a disability or medical condition in a private home.

Mr Chamberlain lived closed to his mother and assisted her with medical appointments and shopping. She had an extensive regime of medication and Mr Chamberlain assisted her with that.

At some time in April of 2009 Mr Chamberlain had received a compensation payment of $105,000.00.

Prior to his receipt of this payment, he had been in receipt of some form of income support payment from Centrelink.

Centrelink had applied a preclusion period to Mr Chamberlain due to his receipt of the compensation period. The preclusion period was twelve months. A person cannot receive an income support payment from Centrelink during a preclusion period.

Mr Chamberlain conceded that he had no dispute that his child assessment should revert to the minimum of $360.00 per annum, when the preclusion period ceased, as he would resume income support payments from Centrelink.

From September 2009 onwards, Mr Chamberlain received a carer’s allowance, in an amount of $50.00 per week, from Centrelink. This equates to an annual sum of $2,600.00. He did not otherwise receive income support payments.

The sum of $2,600.00 is greater than the minimum annual rate, which at the relevant time was $360.00.

If Mr Chamberlain had been in receipt of a Newstart allowance, he would have received a sum of $15,000.00 per annum from Centrelink.

It was accepted by the SSAT that the entirety of the carer’s allowance received by Mr Chamberlain, at relevant times, was used up by the costs incurred in caring for his mother, particularly petrol costs.

Mr Chamberlain’s evidence to the SSAT

Mr Chamberlain deposed to the Tribunal that he used $50,000.00 of his compensation payment to pay off his home mortgage. He further deposed that another sum of $50,000.00 was paid to his ex-wife as part of a property settlement. Mr Chamberlain asserted that his mortgage payments were $200.00 per month, at relevant times.

Mr Chamberlain deposed that he had no money in the bank and was in arrears with his council and water rates on his home. He asserted that he had been living off money that he had saved and money given to him by his family. One of his major recurrent expenses was for medication for himself, which cost him $120.00 per month.

In addition, Mr Chamberlain acknowledged that he had a credit card with the Bendigo Bank, which was in debit in the sum of $1,000.00. Mr Chamberlain deposed that he used this credit card to pay his bills. He also conceded that he had withdrawn from a bank account to pay bills and to buy a new car.

The clear implication of this evidence was that Mr Chamberlain did not have any other sources of income or financial resources, during the relevant period, to satisfy any child support assessment, no matter how modest. As will be subsequently revealed, the SSAT had access to other sources of evidence, which caused it not to accept this evidence and to doubt Mr Chamberlain’s credibility. This finding was germane in its decision not to exercise the discretion available to it, in respect of reducing his child support assessment to nil, in Mr Chamberlain’s favour.

Other evidence available to the SSAT

Both the objections officer and the SSAT had access to bank records, particularly in respect of a credit card, relating to Mr Chamberlain. These records showed Mr Chamberlain had funds, which he had transferred to his credit card account in December 2009, which card permitted cash advances.

The decision of the SSAT

The SSAT considered the definition of income contained in section 66A(4) of the Assessment Act and considered it to be a wide one. The Tribunal placed a significant emphasis on the expression “for personal use or benefit” contained in the definition. It concluded that the carer’s allowance paid to Mr Chamberlain could in fact be used in any way Mr Chamberlain considered fit. It therefore concluded as follows:

“The allowance is therefore money he [Mr Chamberlain] receives for his own use, within the very broad wording of section 66A(4), even if it is all spent for the “benefit” of a third party.”

Accordingly, although it found the issue to be not a clear cut one, on balance, the SSAT was satisfied that the carer’s allowance received by Mr Chamberlain was income for the purposes of section 66A(4) of the Act. Therefore, it concluded that Mr Chamberlain’s income for the nominated period was greater than the minimum annual rate of child support.

I do not consider that this decision is erroneous as a matter of law. Some may view it as controversial, given the nature and purpose of a carer’s allowance. However, I do not consider the reasoning of the Tribunal to be either perverse or illogical. In the context of the applicable legislation, the Tribunal asked itself the right question and the answer it provided to that question falls within rational parameters. As such, I do not think it can be said the SSAT has misconstrued the applicable provision.

However, more significantly in this matter, the SSAT nevertheless went on to consider what should occur if its categorisation of the carer’s allowance received by Mr Chamberlain as income was erroneous. In my view, this is the real gravamen of its decision. In this context, the SSAT noted that the power conferred on the Child Support Registrar, pursuant to section 66A of the Assessment Act, to reduce a child support assessment to nil, was a discretionary one.

The SSAT determined that it would not exercise this discretion in Mr Chamberlain’s favour because of the circumstances surrounding his compensation payment, which had lead him to be precluded from receipt of social security payments. In this context, the SSAT found as follows:

“That he received a compensation pay out of $105,000 some 18 months ago and he could have made provision out of that sum to pay child support at the minimum rate at least until his preclusion period ended.

That a CSA request for information from Westpac disclosed that as at 1 April 2010 Mr Chamberlain’s Mastercard was $50,000 in credit. This money was transferred from his “Westpac One” account on 21 December 2009. This evidence contradicted his verbal evidence as how his compensation payout has been used and provides support for the view that he could increase his income by investing his money in a different way. Alternatively, he has resources out of which he could pay the minimum assessment.”

Essentially, the SSAT determined that, as Mr Chamberlain had access to funds, in the relevant period, which were considerable in excess of the statutory minimum assessment of child support, it would neither proper nor in keeping with the ethos of the provision, for it to exercise its discretion to reduce Mr Chamberlain’s child support assessment to nil. Given, the SSAT’s findings regarding Mr Chamberlain’s credibility in respect of the issue, I can find no legal error in the manner in which it exercised the discretion reposing in it.

Conclusions

As I have previously indicated, the SSAT is the sole finder of fact in this matter. In determining Mr Chamberlain’s application it received evidence from him and considered other documentary sources of evidence. In the light of this documentary evidence, it found that Mr Chamberlain’s evidence lacked credibility.

In my view, on the evidence available to it, this finding regarding Mr Chamberlain’s credibility was open to it and was relevant to how the Tribunal determined to exercise its discretion arising under section 66A of the Assessment Act. As McHugh J has remarked, findings on credibility are a function of the primary decision maker “par excellence” and as such a decision maker needs not give detailed reasons as to why a particular witness was not believed. In any event, the SSAT had clear documentary evidence, which contradicted Mr Chamberlain’s evidence.

In this case, the SSAT found that Mr Chamberlain had been disingenuous regarding how he had utilised his compensation payment during the relevant period. It determined that Mr Chamberlain had had access to a significant sum of money, to withdraw for his personal use, which was well in excess of the minimum annual rate of child support. As such, it determined not to exercise the discretion available to it in Mr Chamberlain’s favour.

Again, in my view, how a discretion is to be exercised is a matter which falls within the sole domain of the decision maker concerned. As such, a court called upon to review such a discretionary decision should interfere only if it can be demonstrated that the discretion concerned has been exercised in bad faith, dishonestly, unreasonably or without proper reference to any applicable criteria relating to its exercise. If any of these grounds are made out, it may be open to a court exercising jurisdictional review functions to determine that there has been no “real exercise of the discretion” in question.

Given the SSAT’s finding that Mr Chamberlain had access to a significant sum of money during the relevant period, which he had not been candid about, I do not think that it can be said that its decision not to exercise the discretion reposed in it, pursuant to section 66A, in Mr Chamberlain’s favour, was either an unreasonable or irrational one. In my view, it was a determination clearly open to the Tribunal on the facts as it found them to be.

In my view, the intent of the applicable legislation is that parents of children should make some financial provision for children not in their care regardless of their financial situation. For this reason, it legislated to create the concept of the minimum child support assessment, which at the relevant time was $360.00 per annum. This minimum applies to the vast majority of social security recipients and others in receipt of low incomes.

To this end, the Child Support Registrar is mandated by the applicable legislation to fix the minimum statutory amount in all cases. However a discretion is created by the applicable legislation, which is conferred on the Child Support Registrar, to ameliorate the possible unfairness of this presumption, so far as very low income earners are concerned.

However, even if a liable parent’s income is less than $360.00 per annum, it does not follow as a matter of course that the relevant child support assessment is to be reduced to nil. Rather, the registrar has a discretion to so reduce it. Necessarily, such a discretion must be exercised rationally and reasonably and by reference to the objects of the legislation creating the discretion in question.

Prior to the receipt of his compensation payment, it seems clear that Mr Chamberlain was in receipt of social security payments. He concedes that, given the intent of Part 5 of Division 8 of the Assessment Act, it is appropriate that the minimum assessment provisions apply to his situation, when he is in receipt of income support payments.

Mr Chamberlain was precluded from applying for social security due to his compensation payment. The compensation payment was a significant sum of money. Clearly, the SSAT concluded that it was a sum available to Mr Chamberlain for his sole use and benefit. Again, it is not possible for me to conclude, given the nature of the evidence as found by the Tribunal, that this was either an irrational or unreasonable determination.

On that basis, the authorities at Centrelink determined to preclude Mr Chamberlain from income support payments for a prescribed period of time. The rationale for this decision, no doubt, was that it was considered Mr Chamberlain had an alternative source of income, at least for a definable period of time.

Essentially, on the same basis on which Centrelink applied a preclusion period, the SSAT determined that it would not be appropriate for Mr Chamberlain to have his child support assessment reduced to nil – he had assets from which he could supply his day to day needs therefore he should not be excluded from the statutorily created minimum assessment of child support.

Clearly, these were all matters relevant to the ultimate decision of the SSAT and the exercise of its discretion. In this sense, its characterisation of the carer’s allowance is, in my view, a peripheral issue as are the other various grounds of Mr Chamberlain’s appeal. In any event, in my view, the manner in which the Tribunal approached its task in respect of section 66A does not appear to me to have legally miscarried.

For all these reasons, I have come to the conclusion that Mr Chamberlain’s appeal must be dismissed.

For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.”

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Brown FM

Date: 12 July 2012


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