Bannon and Applegate (Child support) - [2018] AATA 3286

Bannon and Applegate (Child support) [2018] AATA 3286 (4 June 2018)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2018/BC013468
APPLICANT:  Ms Bannon
OTHER PARTIES:  Child Support Registrar
Mr Applegate

TRIBUNAL:Member M Baulch
DECISION DATE: 4 June 2018
DECISION:

The tribunal set aside the decision under review and, in substitution, decided that there are to be departure determinations, pursuant to paragraph 98S(1)(a) of the Child Support (Assessment) Act 1989, such that:

From 25 October 2017 until 31 December 2017 the annual rate of child support payable by Mr Applegate is varied to $11,568;
From 1 January 2018 until 31 December 2018 the annual rate of child support payable by Mr Applegate is varied to $13,512;
From 1 January 2019 until 30 January 2019 the annual rate of child support payable by Mr Applegate is varied to $13,917;
From 31 January 2019 until 26 March 2019 the annual rate of child support payable by Mr Applegate is varied to $16,053;
From 27 March 2019 until 31 December 2019 the annual rate of child support payable by Mr Applegate is varied to $17,155;
From 1 January 2020 until 31 December 2020 the annual rate of child support payable by Mr Applegate is varied to $17,670.

CATCHWORDS

Child support - Departure determination - Income, property and financial resources of liable parent - Non-compliance with directions - Costs of special needs not significant - Costs of education of children - A ground for departure established - Annual rate payable varied - 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

This application for review concerns the amount of child support paid by Mr Applegate to Ms Bannon in respect of their children, [Child 1], who was born in 2006, and [Child 2], who was born in 2009.
The Child Support (Assessment) Act 1989 (the Act) provides for an administrative assessment of the child support payable by one separated parent to the other. It uses a statutory formula which contains variables such as the parents’ incomes, the number of children, their ages and the percentages of care.
A parent can make an application to the Department of Human Services – Child Support (the Department) for a change to the administrative assessment based on the statutory formula in the special circumstances of their case – referred to in the Act as a departure determination. Ms Bannon made such an application on 25 October 2017.
On 7 December 2017, a departmental decision-maker considered the application and decided that there should be a change to the child support assessment such that Mr Applegate’ adjusted taxable income was set at $95,000 per annum for the period 25 October 2017 to 31 December 2020.
Mr Applegate lodged an…

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 Bannon and Applegate (Child support)

Details

AGLC: Bannon and Applegate (Child support) [2018] AATA 3286
Case: [2018] AATA 3286
Decision Date: 4 June 2018

CaseChat Overview and Summary

The case of Bannon and Applegate concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth). The applicant sought to vary the assessed rate of child support payable by the respondent. The matter came before the court for review of a previous decision.

The primary legal issues before the court were whether the costs associated with the children's education constituted a ground for departure from the child support assessment, and whether the income, property, and financial resources of the liable parent were relevant to this determination. The court also considered the respondent's non-compliance with directions issued during the proceedings.

The court found that the costs of the children's education were a significant factor that justified a departure from the standard assessment. It reasoned that the specific educational needs of the children, which were not adequately met by the standard assessment, constituted a relevant ground for variation. While acknowledging the respondent's non-compliance with directions, the court ultimately focused on the merits of the departure application concerning the children's educational expenses.

The court set aside the previous decision and substituted its own, varying the annual rate of child support payable.

Orders