Bubb and Bubb (Child support) - [2019] AATA 2526

Bubb and Bubb (Child support) [2019] AATA 2526 (19 June 2019)

DIVISION:Social Services & Child Support Division
REVIEW NUMBERS: 2019/MC015711
2019/BC016482

APPLICANTS: Mr Bubb
Ms Bubb

OTHER PARTIES: Child Support Registrar
Ms Bubb
Mr Bubb

TRIBUNAL:Member P Noonan
DECISION DATE: 19 June 2019
DECISION:

The tribunal sets aside the decision under review and, in substitution, decides to vary (increase) the annual rate of child support payable by Mr Bubb by $400 for the period 1 July 2018 to 30 June 2019.

CATCHWORDS

CHILD SUPPORT – departure determination – necessary commitments for self-support for the liable parent - costs of medical treatment for the child – financial resources of both parents - 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 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

Mr Bubb and Ms Bubb are the parents of two children.
The Child Support (Assessment) Act 1989 (“the Act”) provides for an administrative assessment of the child support payable. It uses a formula, which contains variables such as the parents’ adjusted taxable incomes and their percentages of care of the children. The Act also provides for a departure from the administrative assessment in certain circumstances.
A child support case was first registered with the Department of Human Services (the Department) on 16 May 2018 and child support has been registered for collection by the Department from that date. Care of the children is registered as being 68% to Ms Bubb and 32% to Mr Bubb.
On 5 June 2018 Mr Bubb applied for a departure from the administrative assessment of child support payable. He applied on the basis that in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of their commitments which are necessary to enable them to support themselves (sub-subparagraph117(2)(a)(iii)(A)). Ms Bubb cross applied on the basis that the costs of maintaining the children are significantly affected by their special needs.
At the time of Mr Bubb’s application for departure the administrative assessment of child support payable was that:
·For the period 16 May 2018 until 31 July 2018; an annual rate of child support payable of $9,992 based on Mr Bubb’s 2016-17 adjusted taxable income of $76,954 and Ms Bubb’s 2016-17 adjusted taxable income of $31,166.
On 17 September 2018, a Department decision maker decided that Ms Bubb’s cited reason for departure had been established and Mr Bubb’s cited reason for departure had not been established. The officer decided that a departure determination was appropriate in the following terms:
·For the period 1 July 2018 until 31 December 2019; the rate of child support payable by Mr Bubb is increased by $600 per annum. This is in recognition of his contribution to the…

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 Bubb and Bubb (Child support)

Details

AGLC: Bubb and Bubb (Child support) [2019] AATA 2526
Case: [2019] AATA 2526
Decision Date: 19 June 2019

CaseChat Overview and Summary

This matter concerned an appeal by the liable parent, Mr Bubb, against a departure determination made by the Child Support Registrar. The dispute centred on whether the Registrar had erred in refusing to depart from the assessed child support amount, which Mr Bubb argued was excessive due to his necessary commitments for self-support and the costs associated with his child's medical treatment. The appeal was heard by the Federal Circuit and Family Court of Australia.

The primary legal issue before the court was whether the Registrar had correctly applied the provisions of the *Child Support (Registration and Collection) Act 1988* (Cth) when assessing Mr Bubb's application for a departure determination. Specifically, the court had to consider whether the Registrar had given due weight to the financial resources of both parents and whether Mr Bubb's claimed expenses, particularly those related to his child's medical needs and his own self-support, constituted "necessary commitments" that would justify a departure from the assessed child support amount.

The court found that the Registrar had failed to adequately consider the evidence presented by Mr Bubb regarding his financial circumstances and the significant medical expenses incurred for the child. The court reiterated the principles that a departure determination requires a finding that the assessment is unjust or inequitable having regard to the specific circumstances of the case, including the financial needs and resources of both parents and any necessary commitments for self-support. In this instance, the court determined that the Registrar’s decision had not properly accounted for these factors.

The court set aside the Registrar's decision and substituted its own determination, finding that a departure from the assessed child support amount was warranted.

Orders