Bosanguet and Bosanguet (Child support) - [2024] AATA 2767

Bosanguet and Bosanguet (Child support) [2024] AATA 2767 (4 July 2024)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2024/AC027409
APPLICANT:  Mr Bosanguet
OTHER PARTIES:  Child Support Registrar
Ms Bosanguet

TRIBUNAL:Senior Member S De Bono
DECISION DATE: 04 July 2024
DECISION:

The decision of the objections officer is varied so that, for the period 1 January 2024 to 30 June 2024 Mr Bosanguet’s adjusted taxable income is set at $45,000.

CATCHWORDS
CHILD SUPPORT – change of assessment – ceased to be able to work due to car accident – an unjust and inequitable determination of the level of financial support – a ground for departure is established – adjusted taxable income varied – decision of the objections officer is 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 theChild Support (Registration and Collection) Act 1988

REASONS FOR DECISION

BACKGROUND

The issue to be considered in this application is whether there is a reason to change the administrative assessment of child support and, if so, whether it is just and equitable and otherwise proper to do so.
Ms Bosanguet and Mr Bosanguet are the parents of [Child 1]. Ms Bosanguet is recorded as having 75% care and Mr Bosanguet is recorded as having 25% of [Child 1], which has applied to the administrative assessment of child support from 17 January 2020. There has been a child support assessment in place from 2 September 2016. Mr Bosanguet has been the parent liable to pay child support. Child support has been collected from Services Australia (Child Support) from 13 January 2020.
The administrative assessments in place prior to the change of assessment application were as follows:
·      For the period 1 September 2022 to 30 June 2023 Mr Bosanguet was assessed to pay child support of $0 (nil) per annum based on his $11,445 2022/2023 estimated income, and the 2021/2022 adjusted taxable income (ATI) of $49,464 for Ms Bosanguet.
·      For the period 1 July 2023 to 31 August 2023 Mr Bosanguet was assessed to pay child support of $4,629 per annum based on his 2021/2022 ATI of $60,941 and Ms Bosanguet’s 2021/2022 ATI of $49,464.
·      For the period 1 September 2023 to 30 November 2023 Mr Bosanguet was assessed to pay child support of $0 (nil) based on his 2022/2023 provisional income of $8,875 and Ms Bosanguet’s ATI of $47,241 for the 2022/2023 financial year.
On 8 October 2023 Mr Bosanguet applied for a change of assessment on the basis of Reason 8A – that the income, property and financial resources for him were not an accurate reflection of his current situation and, Reason 8B – his earning capacity, on the basis that he had a reduced earning capacity due to injuries sustained in a motor vehicle accident in January 2022.
On 4 December 2023 a Delegate of…

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: [2024] AATA 2767
Decision Date: 4 July 2024

CaseChat Overview and Summary

The matter of *Bosanguet and Bosanguet* concerned an application for a change of assessment regarding child support payments. The applicant argued that a change in their circumstances, specifically their inability to work due to a car accident, rendered the existing assessment unjust and inequitable. The case was heard by Senior Member S De Bono.

The central legal issue before the court was whether the applicant's changed circumstances constituted a ground for departure from the standard child support assessment. Specifically, the court had to determine if the inability to work following a car accident made the current level of financial support unjust and inequitable, thereby justifying an adjustment to the assessed taxable income.

Senior Member De Bono found that the applicant's inability to work due to the car accident did indeed establish a ground for departure. The court reasoned that the purpose of child support legislation is to ensure fair and equitable financial arrangements, and a significant, involuntary change in earning capacity due to unforeseen circumstances, such as a serious accident, could lead to an unjust outcome if not addressed. Applying this principle, the court concluded that the adjusted taxable income should be varied to reflect the applicant's reduced capacity to earn. The decision of the objections officer was consequently varied.

Orders