Bratt and Warwick (Child support) - [2023] AATA 1045

Bratt and Warwick (Child support) [2023] AATA 1045 (3 April 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2022/MC025054
APPLICANT:  Mr Bratt
OTHER PARTIES:  Child Support Registrar
Ms Warwick

TRIBUNAL:Member P Noonan
DECISION DATE: 03 April 2023
DECISION:

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

For the period 17 March 2022 to 31 December 2024 Mr Bratt’s adjusted taxable income is varied to $82,145 per annum.
On 1 January 2024, Mr Bratt’s income is to be increased by the relevant child support inflation factor.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the liable parent - benefits derived from business - 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

Mr Bratt and Ms Warwick are the parents of three children who are currently relevant to the child support assessment.
A child support case was first registered with Services Australia (the Agency) on 11 September 2018 and child support has been registered for collection by the Agency since 19 October 2018. The Agency currently maintains a case completion date for this matter of 9 September 2031.
On 1 November 2021 a review of the child support assessment was commenced by the Child Support Registrar and the matter was referred to an Agency decision maker on 17 March 2022. On 26 July 2022, an Agency officer, acting as a delegate of the Registrar, found that a ground for departure was established and decided to depart from the assessment in the following terms:
· For the period 17 March 2022 to 16 March 2024, the adjusted taxable income for Mr Bratt shall be set at $163,000.
Mr Bratt objected to this decision and on 21 October 2022 an Agency objections officer part allowed his objection in the following terms:
· From 17 March 2022 to 31 December 2025, the adjusted taxable income for Mr Bratt is set to $106,000;
· On 1 January 2024, Mr Bratt’s income is to be increased by the relevant child support inflation factor.
The Tribunal notes that the objections officer stated that their decision would generate an annual child support liability of $14,226 however subsequent assessments generated an annual liability of $20,814 using the income set by the objections officer for Mr Bratt.
Mr Bratt subsequently applied to the Tribunal for an independent hearing of the Agency’s decision. A hearing for the matter was held on 3 April 2023 by conference telephone. The Child Support Registrar did not attend the hearing. Both Mr Bratt and Ms Warwick attended the hearing and gave evidence on affirmation.
Pursuant to paragraph 98C(1)(b) of the Child Support (Assessment) Act 1989 (the Act), a decision to depart from…

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

AGLC: Bratt and Warwick (Child support) [2023] AATA 1045
Case: [2023] AATA 1045
Decision Date: 3 April 2023

CaseChat Overview and Summary

The matter of *Bratt and Warwick* concerned an appeal to the Full Court of the Family Court of Australia regarding a departure determination made under the *Child Support (Registration and Collection) Act 1988* (Cth). The dispute centred on the assessment of the liable parent's income, property, and financial resources, specifically the benefits derived from their business.

The primary legal issue before the Full Court was whether the Registrar's initial decision to depart from the child support assessment, based on the liable parent's business income, was correct. This required the Court to consider the proper characterisation of income and financial resources derived from a business for the purposes of child support assessments and the application of the relevant provisions of the *Child Support (Registration and Collection) Act 1988*.

The Full Court analysed the evidence concerning the liable parent's business operations and the financial benefits flowing from it. It applied established principles regarding the assessment of income for child support purposes, particularly where a parent operates a business. The Court considered whether the Registrar had correctly identified and quantified the income and financial resources available to the liable parent, taking into account the nature of the business and its profitability. The Court found that the Registrar had erred in their assessment and that the departure determination was not justified on the evidence presented.

Consequently, the Full Court set aside the Registrar's departure determination and substituted its own decision.

Orders