Bernard v Mill

This matter concerned an appeal by Mr Bernard (the Applicant) against a decision of the Administrative Appeals Tribunal (AAT). The dispute arose in the context of child support payments between the Applicant and Ms Mill (the First Respondent), the parents of two children. The Applicant sought to exclude certain post-separation income from the child support assessment.

The central legal issue before the court was whether the AAT had erred in its determination regarding the Applicant's eligibility to exclude post-separation income under section 44(1)(d) of the Child Support (Assessment) Act 1989 (Cth). Specifically, the court needed to consider whether the Applicant had established a pattern of earning income after separation that would justify the exclusion.

Tonkin J found that the AAT had fallen into error. The Tribunal member had considered the Applicant's receipt of increased incapacity payments from the Department of Veterans' Affairs (DVA) as evidence of a new pattern of earning. However, the Applicant's case was that the actual receipt of these higher payments, which occurred after the separation, constituted the material change. The Tribunal member's reasoning, which focused on the determination of the increased payments rather than their actual receipt, was found to be inconsistent with the Applicant's submission and the underlying policy intent of the legislation, which aims to allow parents to recover financially after separation. The court applied the principle that tribunals should consider relevant government policy and the objects of the legislation.

The appeal was allowed, and the decision of the AAT was set aside. The matter was remitted to the AAT to be determined according to law.