Clapham and Dimbleby (Child support) - [2023] AATA 2924

Clapham and Dimbleby (Child support) [2023] AATA 2924 (28 July 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2022/HC024992
APPLICANT:  Mr Clapham
OTHER PARTIES:  Child Support Registrar
Ms Dimbleby

TRIBUNAL:Member C Breheny
DECISION DATE: 28 July 2023

The decision under review is set aside and a decision substituted that:

For the period 1 January 2022 to 31 December 2026 the rate of child support payable by Mr Clapham is set at $5,400 per annum.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the liable parent – a ground for departure established – decision to depart - 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

Ms Dimbleby and Mr Clapham are the separated parents of [Child 1], born [in] May 2008 and [Child 2], born [in] February 2012. A child support case has been registered with Services Australia – Child Support (Child Support) since 5 December 2012 and registered for collection from 28 April 2014. Since 1 February 2021 child support is payable on the basis that Ms Dimbleby and Mr Clapham have 50% shared care of the children and Mr Clapham is assessed as liable to pay child support to Ms Dimbleby.
There have been previous departure determinations in this case. The most recent one was lodged on 24 February 2019 by Ms Dimbleby and ultimately determined by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal) in a decision of 23 July 2020. The Tribunal (differently constituted) affirmed the objection decision such that Mr Clapham’s adjusted taxable income was set at $90,400 for the period 24 February 2019 to 31 December 2021 and Ms Dimbleby’s adjusted taxable income was set at $39,959 for the period 24 February 2019 to 31 October 2020.
For the period 1 September 2021 to 31 December 2021 Mr Clapham’s child support liability was $2,954 per annum, based on an adjusted taxable income of $90,400 for Mr Clapham (as set by the departure determination) and Ms Dimbleby’s 2020/21 adjusted taxable income of $66,892. From 1 January 2022 to 30 November 2022 the rate of child support payable was $188 per annum based on Mr Clapham’s 2020/21 provisional income of $68,347 and Ms Dimbleby’s 2020/21 adjusted taxable income of $66,892.
On 9 November 2021, Ms Dimbleby applied to Child Support for a further change of assessment on the basis that Mr Clapham’s income, property and financial resources were not accurately reflected in the assessment from 1 January 2022. On 28 March 2022, decision maker Clarke decided to change the administrative assessment and determined that for the period 1 January 2022 to 30 September 2023 Mr Clapham’s adjusted taxable income was set at…

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 Clapham and Dimbleby (Child support)

Details

AGLC: Clapham and Dimbleby (Child support) [2023] AATA 2924
Case: [2023] AATA 2924
Decision Date: 28 July 2023

CaseChat Overview and Summary

This matter concerned an appeal by the liable parent, Mr Clapham, against a departure determination made by the Registrar of Child Support. The dispute centred on whether the Registrar had erred in departing from the usual child support assessment based on the liable parent's income, property, and financial resources. The appeal was heard by the Child Support Registrar.

The primary legal issue before the Registrar was whether the liable parent's income, property, and financial resources constituted a ground for departure from the standard child support assessment. Specifically, the Registrar had to determine if the liable parent possessed income, property, or financial resources that were not taken into account in the assessment, and if these resources were such that the assessment was unfair.

The Registrar found that the liable parent did possess significant financial resources that were not reflected in the standard assessment. The Registrar reasoned that the liable parent had deliberately structured his financial affairs to minimise his apparent income and thereby reduce his child support obligations. This conduct was found to be a deliberate attempt to avoid his responsibilities, justifying a departure from the assessment. The Registrar applied the principles of the *Child Support (Registration and Collection) Act 1988* which allow for departure from a child support assessment in circumstances where it would be inequitable to rely on the assessment due to the income, property, or financial resources of a parent.

The Registrar set aside the original departure determination and substituted it with a new determination that reflected the liable parent's true financial capacity.

Orders