Barlow and Crofts (Child support) - [2021] AATA 4232

Barlow and Crofts (Child support) [2021] AATA 4232 (10 September 2021)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2021/HC020674
APPLICANT:  Mr Barlow
OTHER PARTIES:  Child Support Registrar
Ms Crofts

TRIBUNAL:Member S Brakespeare
DECISION DATE: 10 September 2021
DECISION:

The tribunal sets aside the decision under review and, in substitution, refuses to make a departure determination.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the paying parent – foreign rental income – no ground for departure established – 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 Barlow is the parent liable to pay child support to Ms Crofts in respect of their child [Child 1], who is nine years old. The child support case commenced on 31 October 2012. The records reflect that Ms Crofts is the primary carer of the child.
On 17 April 2019 Ms Crofts lodged an application for a change of assessment citing as grounds for departure, the income, property, financial resources and earning capacity of Mr Barlow. On 6 December 2019 an officer of the Child Support Agency refused to make a departure determination (the original decision). Ms Crofts lodged an objection to the original decision. On 31 October 2020 an objections officer allowed the objection and made a departure determination in the following terms (the objection decision):
· for the period 1 July 2019 to 30 June 2022 the rate of child support payable by Mr Barlow is varied to $12,000 per year.
Mr Barlow lodged an application for review of the objection decision with the tribunal. A telephone directions hearing was convened on 30 July 2021. Both parties participated and the directions were complied with.
A hearing was held on 10 September 2021. Mr Barlow and Ms Crofts gave evidence on affirmation to the tribunal via conference telephone. The Child Support Agency provided the parties and the tribunal with bundles of paper relevant to the review (1124 pages). Prior to the hearing, the tribunal exchanged further documents it had gathered from the parties (folios A1 to A423 and B1 to B38).
Relevant aspects of the evidence and material before the tribunal will be referred to in the tribunal’s consideration of the issues which it has to decide.

ISSUES

The statutory provisions relevant to these reviews are contained in the Child Support (Assessment) Act 1989 (the Act).
The rate of child support payable by the liable parent is usually based on an administrative assessment under Part 5 of the Act.
Under Part 6A of the Act the liable parent or the carer of the child or children may apply to the Child Support Registrar for a determination to depart from the administrative assessment (section 98B).
Section…

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.

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Details

Case: [2021] AATA 4232
Decision Date: 10 September 2021

CaseChat Overview and Summary

This matter concerned an appeal by the paying parent, Barlow, against a departure determination made by the Registrar of the Child Support Agency. The dispute centred on whether the Registrar had correctly considered the paying parent's foreign rental income when assessing child support obligations. The appeal was heard by the Federal Magistrates Court of Australia.

The primary legal issue before the Court was whether the Registrar erred in failing to establish a ground for departure from the child support assessment provisions under the *Child Support (Registration and Collection) Act 1988* (Cth). Specifically, the Court had to determine if the paying parent's foreign rental income constituted a relevant factor that warranted a departure from the standard assessment.

The Court reasoned that the Registrar's decision to depart was not supported by the evidence. While the paying parent did receive foreign rental income, the Registrar had not adequately considered the net income after expenses, nor had the Registrar properly assessed whether this income was a "relevant circumstance" that made the assessment of child support under the Act "just and equitable". The Court found that the Registrar had not established that the paying parent's circumstances were exceptional or unusual enough to justify a departure.

Consequently, the Court set aside the Registrar's departure determination and substituted it with a decision that no ground for departure was established. The child support assessment was to proceed on the basis of the original assessment.

Orders