Bambra and McBeth (Child support) - [2021] AATA 4494

Bambra and McBeth (Child support) [2021] AATA 4494 (7 October 2021)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2021/HC020945
APPLICANT:  Miss Bambra
OTHER PARTIES:  Child Support Registrar
Mr McBeth

TRIBUNAL:Member M Martellotta
DECISION DATE: 7 October 2021
DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that for the period 4 May 2020 until a child support assessment terminating event occurs in relation to the child [Child 1] (born [February] 2006), Mr McBeth’s adjusted taxable income is varied to $110,000 per annum.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the liable parent – a ground for departure established – decision to depart – 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 omitted 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

Miss Bambra and Mr McBeth are the parents of two children. The child [Child 1] was born [in] February 2006. According to Services Australia – Child Support (the Agency) records, [Child 1] is in the mother’s 100% care. Another child, [Child 2], was born [in] July 2009 and he is in the father’s 100% care.[1]
[1] Another child is over the age of 18 years of age and not part of the child support assessment. Both parents also have other dependants relevant to the administrative assessment of child support.
On 4 May 2020 Miss Bambra lodged a change of assessment application on the ground of Mr McBeth’s income, financial resources, and property (reason 8A). Mr McBeth made a cross application on the same ground, namely Miss Bambra’s income, financial resources, and property.
At the time, the following administrative assessment was in place:
·For the period 1 March 2020 to 27 Aril 2020 Mr McBeth was assessed at the annual rate of $20,141 based on his 2018/19 adjusted taxable income (ATI) of $268,562 and Miss Bambra’s 2018/19 income tax declaration of $23,000.

·For the period 28 April 2020 to 31 May 2021 Mr McBeth was assessed at a nil annual rate based upon his 2019/20 nil income estimate and Miss Bambra’s 2018/19 income tax declaration of $23,000.

An Agency decision maker decided that the ground to depart was established and varied the assessment so that for the period 28 April 2020 until a terminating child support event for [Child 1] Mr McBeth was to be assessed on an ATI of $350,000 per annum.
Mr McBeth’s objection[2] to that decision was allowed and another decisionmaker decided to vary the assessment so that for the period 1 March 2020 to 28 February 2021 Mr McBeth was to be assessed on an ATI of $74,353 per annum and thereafter the administrative assessment would apply as per the legislative formula.
[2] The Agency granted Mr McBeth and extension of time within…

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 Bambra and McBeth (Child support)

Details

AGLC: Bambra and McBeth (Child support) [2021] AATA 4494
Case: [2021] AATA 4494
Decision Date: 7 October 2021

CaseChat Overview and Summary

This matter concerned an application by the liable parent, Mr Bambra, for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth). The dispute centred on whether the child support assessment should be departed from due to the liable parent's income, property, and financial resources. The case was heard by M Martellotta M.

The primary legal issue before the Court was whether the liable parent had established a ground for departure from the child support assessment. This required the Court to consider whether the liable parent's actual financial circumstances were such that the assessed amount of child support was not just and equitable. The Court also had to determine whether, if a ground for departure was established, it was appropriate to make a departure determination and, if so, what that determination should be.

The Court's reasoning focused on the specific financial information provided by the liable parent. It was found that the liable parent possessed income, property, and financial resources that were not reflected in the child support assessment. The Court applied the principles of the *Child Support (Registration and Collection) Act 1988* (Cth) which permit departure from an assessment where it would be 'just and equitable' to do so, having regard to the liable parent's financial position. The Court concluded that a ground for departure was established.

The Court set aside the original decision and substituted its own determination, finding it was just and equitable to depart from the assessment.

Orders