Benson and Pendelton (Child support) - [2022] AATA 1701

Benson and Pendelton (Child support) [2022] AATA 1701 (2 March 2022)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2021/MC022928
APPLICANT:  Mr Benson
OTHER PARTIES:  Child Support Registrar
Ms Pendelton

TRIBUNAL:Member K Dordevic
DECISION DATE: 2 March 2022
DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – child support agreement – whether termination of binding child support agreement occurred – no terminating event – decision under review affirmed

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 application for review is about whether the correct decision was made to refuse to terminate a binding child support agreement (BCSA) between Mr Benson and Ms Pendelton.
Mr Benson and Ms Pendelton are the parents of two children, in respect of whom a BCSA was entered into on 13 September 2019. The BCSA was registered by Services Australia – Child Support (the Agency) from 3 December 2019 and this was the basis for the assessment of child support.
On 20 August 2021 Mr Benson contacted the Agency and advised that one of the conditions which cause the BCSA to end (clause 12(d)) had been met in that Ms Pendelton’s taxable income had increased by 50% or more from her 2019 taxable income. Mr Benson asked for the BCSA to be removed and for the assessment of child support to revert to the usual formula assessment.
On 26 August 2021 the Agency refused to end the registration of the BCSA between Mr Benson and Ms Pendelton. Mr Benson lodged an objection to the decision on 14 September 2021 and an objections officer disallowed his objection on 10 November 2021.
On 14 December 2021 Mr Benson lodged an application for review by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal). On 22 December 2021 he lodged a request to be represented by [Ms A], barrister. His request was granted on 1 February 2022. On the same day Ms Pendelton’s request to have a support person present was refused, given the private nature of the proceedings.
The application was heard on 2 March 2022. Both parents attended by MS Teams audio. The Child Support Registrar did not attend the hearing. At hearing Mr Benson advised that he would not be represented. He was unable to provide a satisfactory reason for why he did not, as a matter of courtesy, advise the tribunal of this prior to hearing. Mr Benson provided written submissions two days prior to hearing (folios A1 to A18). At hearing he was unable to adequately explain why he provided the evidence on which he intended to rely some two days prior to hearing, despite the Child Support Directions clearly stating that all such evidence that a party intends to rely…

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 Benson and Pendelton (Child support)

Details

AGLC: Benson and Pendelton (Child support) [2022] AATA 1701
Case: [2022] AATA 1701
Decision Date: 2 March 2022

CaseChat Overview and Summary

This matter concerned an appeal to the Federal Circuit and Family Court of Australia regarding a child support agreement. The parties, Benson and Pendelton, were involved in a dispute over whether their binding child support agreement had been terminated. The decision under review affirmed a prior determination that no terminating event had occurred.

The central legal issue before the court was to determine whether the binding child support agreement between Benson and Pendelton had been validly terminated according to its terms or the relevant provisions of the *Child Support (Registration and Collection) Act 1988* (Cth). The court was required to assess the evidence presented to ascertain if any of the specified terminating events had been met.

The court's reasoning focused on the specific clauses within the binding child support agreement that stipulated conditions for its termination. It was found that none of the events described in the agreement as leading to its termination had transpired. Consequently, the court applied the principle that a binding child support agreement remains in force unless a terminating event, as defined by the agreement itself or by statute, is demonstrably proven to have occurred.

The appeal was dismissed, and the decision under review, which found that the binding child support agreement had not been terminated, was affirmed.

Orders