Batton and Batton (Child support) - [2022] AATA 1183

Batton and Batton (Child support) [2022] AATA 1183 (28 March 2022)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2021/PC022579
APPLICANT:  Mr Batton
OTHER PARTIES:  Child Support Registrar
Mrs Batton

TRIBUNAL:Member S Hoffman
DECISION DATE: 28 March 2022
DECISION:

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

For the period from 25 March 2021 to 30 June 2021, Mr Batton’s adjusted taxable income is varied to $260,205.
For the period from 1 July 2021 to 31 March 2024, Mr Batton’s adjusted taxable income is varied to $200,286.
For the period from 25 March 2021 to 20 October 2021, Mrs Batton’s adjusted taxable income is varied to $65,692.

For the period from 21 October 2021 to 31 March 2024, Ms Batton’s adjusted taxable income is varied to $127,000.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of both parents - benefits derived from business - income from family trust - 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 review is about the child support assessments in respect of [Child 1] and [Child 2], who are 15 and 13 years old respectively.
The case was registered with Services Australia – Child Support (the CSA) on 2 September 2020. The CSA has been involved with the collection of child support since then.
On 25 March 2021, the mother applied for a change of assessment. At that time, the father was required to pay an annual rate of child support of $2,330 to the mother, based on his 2019/20 adjusted taxable income of $114,116, the mother’s 2019/20 adjusted taxable income of $64,357 and the care of the children according to the CSA’s records. The father was recorded as providing 100% of [Child 1]’s care and 21% of [Child 2]’ care. The mother was recorded as provided nil care for [Child 1] and 79% care for [Child 2].

On 2 July 2021, a case officer from the CSA decided to vary the father’s adjusted taxable income to $159,769 a year for the period from 25 March 2021 to 30 June 2023 (the original decision).
The letter advising the parties of the decision being made was dated 5 July 2021.[1] With this type of decision, a party seeking to object to it must lodge their written objection within 28 days of the day that they were served with a written notice of that decision. When calculating the start of the 28-day period, allowance is made for the time it takes for the written notice to be received by the person via the mail.[2]
[1] Pages 135 and 136 of the CSA documents.
[2] The Child Support Guide sets out departmental policy in relation…

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 Batton and Batton (Child support)

Details

AGLC: Batton and Batton (Child support) [2022] AATA 1183
Case: [2022] AATA 1183
Decision Date: 28 March 2022

CaseChat Overview and Summary

This matter concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth) by the respondent parent, Mr Batton, against a child support assessment made in favour of the applicant parent, Ms Batton. The dispute centred on the income, property, and financial resources of both parents, particularly benefits derived from a business and income from a family trust. The decision under review was set aside and substituted.

The primary legal issue before the court was whether the existing child support assessment was likely to be less than the amount of child support that would be assessed if the assessment were made under the *Child Support (Assessment) Act 1989* (Cth), having regard to the specific circumstances of the case. This required the court to consider the income, property, and financial resources of both parents, including any benefits derived from business activities and income generated through a family trust, to determine if a departure from the standard assessment was justified.

The court's reasoning focused on the actual financial capacity of the respondent parent. It was found that the respondent parent had access to significant financial resources through his business and a family trust, which were not fully reflected in his assessed income for child support purposes. The court applied the principles of the *Child Support (Assessment) Act 1989* (Cth) to consider these resources, determining that the respondent parent's effective income and financial capacity were substantially greater than what was being considered under the existing assessment. This led to the conclusion that a departure was warranted to ensure a more equitable and appropriate child support obligation.

The court set aside the original child support assessment and substituted it with a new assessment that more accurately reflected the respondent parent's financial capacity, taking into account the benefits derived from his business and family trust.

Orders