Ely v Ely & Anor

This matter concerned an appeal by the mother and the Child Support Registrar against a decision of the Administrative Appeals Tribunal. The dispute centred on the Tribunal's assessment of the father's child support obligations, specifically its characterisation of certain superannuation payments and a Total Permanent Disablement (TPD) payment as not being part of the property settlement between the parties.

The court was required to determine whether the Administrative Appeals Tribunal had committed an error of law in its findings regarding the father's superannuation and TPD payment. Specifically, the court had to consider whether these amounts were correctly characterised as not being part of the property settlement, and if not, whether this mischaracterisation constituted a significant error of fact that impacted the Tribunal's subsequent assessment of child support and its decision to depart from established principles.

The court found that while the Tribunal's finding that the father's 2016 superannuation drawdown was not part of the property settlement was open to it, its conclusion that the TPD payment and the remaining superannuation were not part of the property settlement was an error of law. The court reasoned that these amounts were clearly established as part of the property settlement, citing relevant orders and case law. This mischaracterisation led the Tribunal to fail to consider the impact of departing from the Child Support Guide principle and to focus on the father's actions with his share of the settlement without inquiring into the value of the property retained by the mother, which was a significant error given the substantial size of the TPD payment.

The decision of the Administrative Appeals Tribunal was set aside, and the matter was remitted to the Tribunal for a rehearing.