Bisek and Bisek (Child support) - [2020] AATA 5834

Bisek and Bisek (Child support) [2020] AATA 5834 (11 November 2020)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2020/MC019391
APPLICANT:  Mr Bisek
OTHER PARTIES:  Child Support Registrar
Ms Bisek

TRIBUNAL:Member S Brakespeare
DECISION DATE: 11 November 2020
DECISION:

The decision under review is varied so that there is a departure determination in the following terms:

For the period 10 February 2020 to 30 June 2020 Mr Bisek’s adjusted taxable income is varied to $61,708;
From 1 July 2020 the child support liability is as per the ordinary administrative assessment of child support.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the liable parent – a ground for departure established – decision under review varied

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

Mr Bisek is a parent liable to pay child support to Ms Bisek in respect of their children [Child 1] who is 14 and [Child 2] who is 12. According to the Child Support Agency records Ms Bisek has 93% care of the children and Mr Bisek has 7% care of the children.
On 10 February 2020 Mr Bisek lodged an application for a change of assessment with the Child Support Agency on the ground relating to the administrative assessment being unjust and inequitable because of his income, property and financial resources.
At the time the administrative assessment required Mr Bisek to pay an annual child support liability of $16,824. This assessment was based on an adjusted taxable income for Mr Bisek of $89,654 (set by a departure termination)[1] and Ms Bisek’s 2019/20 income estimate amount of $19,666.
[1] On 19 August 2019 an officer of the Child Support Agency varied Mr Bisek’s adjusted taxable income to $89,654 for the period 17 July 2019 to 8 September 2019 and for the period 14 October 2019 to 31 December 2020
On 25 April 2020 an officer of the Child Support Agency refused to make a departure determination (the original decision). Mr Bisek lodged an objection to the original decision. On 19 June 2020 an officer of the Child Support Agency allowed the objection in part and made the following departure determination (the objection decision):
·for the period 17 July 2019 to 30 June 2020 Mr Bisek’s adjusted taxable income is varied to $89,654;
·from 1 July 2020 income of $89,654 is used as per the ordinary administrative assessment.
On 26 June 2020 Mr Bisek lodged an application for review of the objection decision with the tribunal. A telephone directions hearing was held on 7 October 2020 with both parties participating. A hearing was held on 11 November 2020. Mr Bisek and Ms Bisek gave evidence on affirmation to the tribunal by conference telephone. 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.

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Details

Case: [2020] AATA 5834
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application by Mr Bisek for a departure determination regarding his child support liability to Ms Bisek. Mr Bisek sought to vary his child support assessment on the grounds that it was unjust and inequitable due to his income, property, and financial resources. The original administrative assessment required Mr Bisek to pay $16,824 annually, based on an adjusted taxable income of $89,654.

The tribunal was required to determine whether a ground existed to depart from the administrative assessment, whether it would be just and equitable to make a departure determination, and if so, whether it was otherwise proper to do so. Specifically, the tribunal had to consider if the circumstances were special, out of the ordinary, and peculiar to the case, such that applying the standard assessment would result in an unjust and inequitable outcome regarding the level of financial support. This involved assessing Mr Bisek's income, property, financial resources, and earning capacity, as well as Ms Bisek's circumstances and the needs of the children.

The tribunal found that a ground for departure was established. Mr Bisek had voluntarily ceased employment earning $70,000 per annum and subsequently accepted a position earning $65,000 per annum, which was a reduction in income. While Mr Bisek's income had fluctuated due to redundancy and a period of income support, the tribunal considered his current employment and income. The tribunal determined that applying the administrative assessment based on his previous higher income would be unjust and inequitable given his current financial situation. The tribunal also considered the factors outlined in subsection 117(4) of the Child Support (Assessment) Act 1989, including the needs of the children, the financial circumstances of both parents, and their respective commitments and earning capacities.

The tribunal varied the decision under review. For the period from 10 February 2020 to 30 June 2020, Mr Bisek's adjusted taxable income was varied to $61,708. From 1 July 2020 onwards, the child support liability was to be determined by the ordinary administrative assessment, reflecting his current income of $65,000 per annum.

Orders