Bateson and McDonald (Child support) - [2018] AATA 3079

Bateson and McDonald (Child support) [2018] AATA 3079 (21 June 2018)

DIVISION: Social Services & Child Support Division

REVIEW NUMBER: 2018/SC013422

APPLICANT: Mr Bateson

OTHER PARTIES: Child Support Registrar

Ms McDonald

TRIBUNAL: Member J Cuthbert

DECISION DATE: 21 June 2018

DECISION:

The tribunal sets aside the decision under review and substitutes a decision to depart from the child support assessment from 1 September 2017 to 31 January 2020 by varying the annual rate of child support payable by Mr Bateson to the maximum amount payable for a child of 0 to 12 years of age under the Costs of the Children Table for the relevant child support period.

CATCHWORDS

Child support - Departure determination - Income, property, financial resources and earning capacity of liable parent - Business income - Transaction to transfer ownership not at arm’s length - Criteria for earning capacity met - Ground for departure established - Annual rate of child support 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

HISTORY

This review concerns an application for a change to a child support assessment made by Mr Bateson on 1 September 2017.
Mr Bateson and Ms McDonald are the parents of [Child 1] (born 2014). There has been a child support assessment in place, made by the Department of Human Services – Child Support, since 15 April 2015. The child support assessment is based on Ms McDonald having a care percentage of 100% for [Child 1].
A decision was made by an objections officer from the Department on 6 June 2016 to depart from the child support assessment by varying the annual rate of child support payable by Mr Bateson to $21,603 from 5 February 2016 to 28 February 2018. Mr Bateson’s application to this tribunal for an extension of time in which to lodge an application for a review of that decision was refused on 15 August 2017.
On 1 September 2017 Mr Bateson applied to the Department for a departure from the assessment on the grounds that his income, property and financial resources were not properly reflected in the assessment. A decision was made not to depart from the child support assessment on 5 October 2017.
Mr Bateson lodged an objection to that decision. On 12 January 2018 his objection was allowed. The objections officer set aside the decision made on 5 October 2017 and decided to extend the departure from the child support assessment by varying the annual rate of child support payable by Mr Bateson to $21,603 from 1 March 2018 to 31 December 2019.
On 2 February 2018 Mr Bateson lodged an application for a review of the objection decision with the tribunal.
The matter was heard on 21…

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 Bateson and McDonald (Child support)

Details

AGLC: Bateson and McDonald (Child support) [2018] AATA 3079
Case: [2018] AATA 3079
Decision Date: 21 June 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the child support obligations of the liable parent, Mr Bateson, in relation to his child with Ms McDonald. The dispute concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth), seeking to vary the assessed annual rate of child support payable by Mr Bateson. The core of the disagreement lay in the valuation of Mr Bateson's business income and earning capacity.

The Tribunal was required to determine whether the criteria for a departure from the child support assessment were met, specifically focusing on whether Mr Bateson's actual income, property, financial resources, and earning capacity were significantly different from those used in the assessment. A key question was whether a transaction involving the transfer of ownership of a business was conducted at arm's length, and if not, whether this indicated a deliberate reduction in his assessed income or earning capacity.

The Tribunal found that Mr Bateson's earning capacity was significantly higher than that reflected in the child support assessment. It reasoned that the transaction to transfer ownership of his business was not at arm's length, and that this, along with other evidence regarding his financial resources and continued involvement in the business, demonstrated a deliberate attempt to reduce his child support liability. Consequently, the Tribunal concluded that the grounds for a departure determination were established.

The Tribunal set aside the original decision and substituted its own, varying the annual rate of child support payable by Mr Bateson.

Orders