Backman and Starkey (Child support) - [2019] AATA 2522

Backman and Starkey (Child support) [2019] AATA 2522 (6 June 2019)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER: 2018/MC014972
2018/MC015032

APPLICANT: Ms Backman
Mr Starkey

OTHER PARTIES: Child Support Registrar
Mr Starkey
Ms Backman

TRIBUNAL:Member R Anderson
DECISION DATE: 6 June 2019
DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that:

the annual rate of child support payable by Mr Starkey is varied to $1,200 per annum in respect of the period 17 January 2017 to 30 June 2017;
the annual rate of child support payable by Mr Starkey is varied to $2,900 per annum in respect of the period 1 July 2017 to 30 June 2018;
the annual rate of child support payable by Mr Starkey is varied to $1,100 per annum in respect of the period 1 July 2018 to 30 June 2019 and
the annual rate of child support payable by Mr Starkey is varied to $1,200 per annum in respect of the period 1 July 2019 to 31 March 2020.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the liable parent - benefits derived from self-employment - decision under review set aside and substituted

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988.

REASONS FOR DECISION

BACKGROUND

Mr Starkey and Ms Backman are the parents of [Child 1]. According to records of the Department of Human Services – Child Support (the Department), the child support assessment was registered on 15 October 2012, less than 12 months after [Child 1’s] birth. However, it was not until 6 December 2012 that the Department became responsible for the collection of child support from Mr Starkey.
The child support liability is generally calculated in accordance with the administrative assessment, as provided in the Child Support (Assessment) Act 1989 (the Act). In this case there have been numerous departure decisions, the most recent being made in January 2016, whereby the adjusted taxable income of Mr Starkey was varied to $74,400 per annum in respect of the period 1 January 2016 to 30 April 2018. If no departure decision is in place, the administrative assessment reverts to being calculated on the basis of the income recorded by each parent in their most recently completed tax returns, as lodged with the Australian Taxation Office, or the most recent estimate accepted by the Department.
It is open to either parent to lodge an application for a departure from the administrative assessment under Part 6A of the Act if they consider the administrative assessment results in an unfair amount of child support payable by one parent. Mr Starkey and Ms Backman each lodged such an application in March 2018, on the basis that the administrative assessment produced an unfair outcome due to the income,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Backman and Starkey (Child support)

Details

AGLC: Backman and Starkey (Child support) [2019] AATA 2522
Case: [2019] AATA 2522
Decision Date: 6 June 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the child support assessment for the liable parent, Mr. Backman, in a dispute with Ms. Starkey. The matter concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth), specifically challenging the assessment of Mr. Backman's income and financial resources derived from his self-employment.

The primary legal issue before the Tribunal was whether Mr. Backman's actual income and financial resources, as derived from his self-employment, differed significantly from the income assessed under the standard child support formula. This required the Tribunal to determine if the circumstances warranted a departure from the assessed amount, considering the benefits Mr. Backman derived from his business activities.

The Tribunal reviewed the evidence presented regarding Mr. Backman's income and expenses related to his self-employment. It applied the principles governing departure determinations, focusing on whether the assessed income accurately reflected his capacity to pay child support. The Tribunal found that the evidence supported a departure from the assessed amount, concluding that Mr. Backman's actual financial position was different from that which would be determined using the standard assessment provisions. Consequently, the Tribunal set aside the original decision and substituted its own determination.

Orders