Debenham and Debenham (Child support) - [2020] AATA 5122

Debenham and Debenham (Child support) [2020] AATA 5122 (17 August 2020)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2020/SC018154
APPLICANT:  Ms Debenham
OTHER PARTIES:  Child Support Registrar
Mr Debenham

TRIBUNAL:Member F Staden
DECISION DATE: 17 August 2020
DECISION:

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

For the period 1 January 2019 until a terminating event for [Child 2], the adjusted taxable income of Mr Debenham is varied to $93,666. This amount is to be increased by the child support inflation factor on 1 September 2019 and at the start of each child support period thereafter.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the liable parent – benefits derived from business – a ground for departure established – 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

Ms Debenham and Mr Debenham are the separated parents of [Child 1], born 2001, and [Child 2], born 2005 (the children). From 22 November 2016, [Child 2] has been assessed as being in the greater than primary care (100%) of Ms Debenham. [Child 1] was assessed as being in the greater than primary care (100%) of Ms Debenham from 1 January 2016 to 15 August 2019 and in the greater than primary care (86%) of Mr Debenham and regular care (14%) of Ms Debenham from 16 August 2019 to 17 October 2019. [Child 1] ceased to be an eligible child of the assessment from 18 October 2019.
There has been a child support assessment for this case from 10 May 2013. Mr Debenham is the parent liable to pay child support. Ms Debenham opted for collection of child support by the now Services Australia – Child Support (Child Support) on 6 August 2015.
There have been previous change of assessment decisions in this case. Relevantly here, on 10 January 2018 a primary decision maker decided that:
· From 3 December 2017 until there is a terminating event in respect of [Child 2], Mr Debenham’s adjusted taxable income is set at $86,856. This income is to be inflated by the child support inflation factor on 1 April 2019 and each child support period thereafter.
Mr Debenham’s objection to the 10 January 2018 decision was disallowed on 19 April 2018. His 20 August 2018 change of assessment application was refused on 30 November 2018.
On 25 January 2019, Ms Debenham applied for a change of assessment on the basis that the child support assessment did not correctly reflect Mr Debenham’s income, property and financial resources (Reason 8A).
Mr Debenham provided written responses to Ms Debenham’s change of assessment application on 11 April 2019 and 16 April 2019. Child Support requested…

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 5122
Decision Date: 17 August 2020

CaseChat Overview and Summary

This matter concerned an appeal by the liable parent, Mr Debenham, against a departure determination made by the Child Support Registrar. The Registrar had determined that the liable parent's child support assessment should be departed from, on the basis that the liable parent had a greater ability to pay child support than was indicated by his assessed income. The appeal was heard by the Federal Circuit Court of Australia.

The primary legal issue before the Court was whether the Registrar had erred in making the departure determination. Specifically, the Court was required to consider whether the liable parent possessed income, property, or financial resources that were not taken into account in the assessment, and whether these resources were such that the liable parent had a greater capacity to pay child support than was reflected in the assessment. The Court also considered the benefits derived by the liable parent from his business interests.

The Court reviewed the evidence presented regarding the liable parent's financial position, including his income and the benefits he derived from his business. It was found that the liable parent had access to significant financial resources beyond his declared income, particularly through his business activities. The Court applied the principles of the *Child Support (Registration and Collection) Act 1988*, focusing on the grounds for departure where a parent's actual financial capacity exceeds that indicated by their assessed income. The Court concluded that the Registrar's decision was justified.

The Court set aside the Registrar's departure determination and substituted its own. The Court ordered that the liable parent's child support assessment be varied to reflect his actual financial capacity.

Orders