Belchier and Belchier (Child support) - [2022] AATA 3054

Belchier and Belchier (Child support) [2022] AATA 3054 (23 June 2022)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2021/PC022564
APPLICANT:  Miss Belchier
OTHER PARTIES:  Child Support Registrar
Mr Belchier

TRIBUNAL:Senior Member R Ellis
DECISION DATE: 23 June 2022
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that:

for the period from 22 April 2021 until a terminating event for [Child 1] the adjusted taxable income of Ms Belchier is varied to $50,000; and

for the period from 22 April 2021 until a terminating event for [Child 1] the adjusted taxable income of Mr Belchier is varied to $116,000.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of both parents – a ground for departure established – decision to depart – 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 omitted 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 whether or not there should be a departure from the administrative assessment of child support.
Ms Belchier and Mr Belchier are the parents of [Child 1] (born September 2003). There has been a child support assessment in place since 5 January 2006 and Mr Belchier is the liable parent under the assessment.
The following administrative assessments of child support are under consideration:
·     for the period from 1 April 2020 to 10 February 2021 Mr Belchier was assessed to pay an annual rate of $4,803 based on a 2018-19 provisional adjusted taxable income of $54,181[1] for Mr Belchier and a 2018-19 adjusted taxable income for Ms Belchier of $16,998;
·     for the period from 11 February 2021 to 30 June 2021 Mr Belchier was assessed to pay an annual rate of $1,558 based on a 2018-19 adjusted taxable income of $34,855 for Mr Belchier and a 2018-19 adjusted taxable income for Ms Belchier of $16,998; and
·     for the period from 1 July 2021 to 26 November 2021 Mr Belchier was assessed to pay an annual rate of $4,405 based on an amount derived from Male Total Average Weekly Earnings (MTAWE) of $52,638 for both parents.
[1] Pending lodgement of his 2018-19 tax return
On 22 April 2021 Ms Belchier applied to the Child Support Agency for a change to the assessment on the basis of a parent’s income, property, financial resources and earning capacity (the grounds commonly referred to as Reasons 8A and 8B).
On 16 July 2021 the Child Support Agency made the decision to change the assessment so that for the period from 1 May 2021 to 26 November 2021 the adjusted taxable income of Mr Belchier is set at $120,629 (the original decision).
On 31 July 2021 Ms Belchier objected to this decision and on 3 October 2021 the Child Support Agency…

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 Belchier and Belchier (Child support)

Details

AGLC: Belchier and Belchier (Child support) [2022] AATA 3054
Case: [2022] AATA 3054
Decision Date: 23 June 2022

CaseChat Overview and Summary

This matter concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth) brought by the applicant parent, Mr Belchier, against the respondent parent, Ms Belchier. The dispute centred on the assessment of child support payable for the parties' child.

The primary legal issue before the court was whether a departure from the administrative assessment of child support was justified under section 117 of the *Child Support (Registration and Collection) Act 1988*. This required the court to consider whether the existing assessment was likely to be less than the amount of child support that would have been assessed if the assessment had been made under the *Assessment Act* and whether the departure would be otherwise just and equitable. The court was also required to consider the income, property, and financial resources of both parents.

The court found that a ground for departure was established, having regard to the specific circumstances of the parties. The court reasoned that the standard assessment did not adequately reflect the parties' financial positions and that a departure was necessary to achieve a just and equitable outcome for the child. The court then exercised its discretion to depart from the assessment.

The court set aside the original departure determination and substituted its own decision, ordering a revised child support amount.

Orders