Bayes and Bayes (Child support) - [2022] AATA 350

Bayes and Bayes (Child support) [2022] AATA 350 (18 January 2022)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2021/SC021716
APPLICANT:  Ms Bayes
OTHER PARTIES:  Child Support Registrar
Mr Bayes

TRIBUNAL:Member M Douglas
DECISION DATE: 18 January 2022
DECISION:

The decision under review is varied such that the period during which Mr Bayes’ adjusted taxable income has been varied to $51,777 shall end on 31 October 2022.

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 varied

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

Ms Bayes and Mr Bayes are the parents of [Child 1], [Child 2], [Child 3] and [Child 4], in regard to whom the Child Support Registrar has issued administrative assessments of child support with the first having effect from 18 May 2020.
An assessment of child support is made in accordance with the provisions of Part 5 of the Child Support (Assessment) Act1989 (the Act). Broadly speaking, those provisions prescribe formulae that apply to several variables to work out the amount of child support one parent must pay the other. Those variables include the parents’ taxable incomes from the financial year before the start of the child support period to which the assessment relates, the level of care that each parent provides for their children and the cost of the children.
If a parent believes there are special circumstances in their case, the parent may apply to the Registrar under section 98B of the Act for a determination to depart from those provisions of the Act by which an assessment of child support is made. The Registrar, who acts through persons employed within Services Australia – Child Support (hereafter Services Australia), describes such an application as a “change of assessment application”.
On 8 December 2020 Ms Bayes made such an application to Services Australia, seeking a change be made to the assessment that had issued for the period after 1 November 2020. That assessment required Mr Bayes to pay child support to Ms Bayes for the children at an annual rate of $4,400. The assessment was based on Mr Bayes’ 2019 taxable income of $19,965 and Ms Bayes’ 2019 taxable income of $25,169. It was also based on Ms Bayes having care of the children all of the time.
Ms Bayes’ reason for making her change of assessment application, as articulated in her application form, was, briefly, that Mr Bayes was receiving greater income than his 2019 taxable income.
On 10 February 2021 Services Australia decided that there should be a departure from the provisions of the Act with respect to assessment of child support and determined that…

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: [2022] AATA 350
Decision Date: 18 January 2022

CaseChat Overview and Summary

This matter concerned an appeal to the Full Court of the Family Court of Australia regarding a departure determination made under the *Child Support (Registration and Collection) Act 1988* (Cth). The appeal was brought by the liable parent, Mr Bayes, against a decision of a single judge of the Family Court which had affirmed a departure determination made by the Registrar of the Child Support Agency. The dispute centred on whether the Registrar had erred in departing from the usual child support assessment formula on the basis of the liable parent's income, property, and financial resources.

The primary legal issue before the Full Court was whether the Registrar had correctly applied the principles for departure from a child support assessment, specifically concerning the consideration of the liable parent's financial circumstances. The court was required to determine if the Registrar's finding that a ground for departure was established, and the subsequent decision to depart, were legally sound and supported by the evidence.

The Full Court considered the provisions of section 117 of the *Child Support (Registration and Collection) Act 1988*, which outlines the grounds upon which a departure determination may be made. The court affirmed that the Registrar had a broad discretion to consider all relevant circumstances, including the liable parent's income, property, and financial resources, when determining whether to depart from the standard assessment. The Full Court found that the Registrar had properly exercised this discretion, having regard to the evidence presented regarding Mr Bayes' financial position. The appeal was accordingly dismissed.

Orders