Flint and Palfrey (Child support) - [2023] AATA 3299

Flint and Palfrey (Child support) [2023] AATA 3299 (8 August 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2022/AC024943
APPLICANT:  Ms Flint
OTHER PARTIES:  Child Support Registrar
Mr Palfrey

TRIBUNAL:Senior Member M Kennedy
DECISION DATE: 8 August 2023
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the objection is allowed so as to make the following departure determinations:

Mr Palfrey’s adjusted taxable income is varied to $220,093 for the period 22 February 2022 to 30 June 2022.
Mr Palfrey’s adjusted taxable income is varied to $195,000 for the period 1 July 2022 to 31 October 2023.
1. Ms Flint’s adjusted taxable income is varied to $80,368 from 22 February 2022 to 31 October 2023.
The costs of the child component of the formula for [Child 1] is varied by increasing it by $2800 for the period 22 February 2022 to 31 December 2025.
The costs of the child component of the formula for [Child 1] is varied by increasing it by $3916 for the period 1 October 2022 to 1 October 2023.

Services Australia must calculate the effect of determination (5) for the purpose of identifying any disability expense maintenance amount for the purpose of family assistance entitlements.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of both parents – cost of educating child – special needs of child – 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

Ms Flint and Mr Palfrey are the parents of [Child 2] (13) and [Child 1] (10), in respect of whom a child support assessment is in place. As at 22 February 2022, under that assessment, Mr Palfrey had a liability to pay child support to Ms Flint of $6904 based on his adjusted taxable income for 2019/2020 of $93,980 and Ms Flint’s adjusted taxable income of $70,579 for 2019/2020. At that time Ms Flint had 61% care of the children and Mr Palfrey had 39% care of the children.
On 22 February 2022, Ms Flint applied for a departure from the administrative assessment (a ‘change of assessment’) raising the grounds known as Reason 7 and Reason 8A.
A decision maker in Services Australia – Child Support (hereafter Child Support) decided to allow the application, finding the ground known as Reason 8A was established, but the ground known as Reason 7 was not.
Specifically, Child Support noted that Ms Flint had raised Reason 7 on the basis that she was finding the cost of servicing the extended mortgage she now had in relation to the former family home after property settlement to be very difficult. Child Support found that meeting the costs of a mortgage was not relevantly a special circumstance. In…

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 Flint and Palfrey (Child support)

Details

AGLC: Flint and Palfrey (Child support) [2023] AATA 3299
Case: [2023] AATA 3299
Decision Date: 8 August 2023

CaseChat Overview and Summary

The case of *Flint and Palfrey* concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth). The dispute involved the child support assessment for the parties' child, with the applicant seeking to have the assessment varied based on the income, property, and financial resources of both parents, as well as the costs associated with the child's education and special needs. The matter was heard by M Kennedy SM.

The primary legal issue before the Court was whether the existing child support assessment was likely to be `c` `a` `u` `s` `e` `u` `n` `d` `u` `e` `h` `a` `r` `d` `s` `h` `i` `p` or `g` `r` `e` `a` `t` `e` `r` `h` `a` `r` `d` `s` `h` `i` `p` for either parent or the child, having regard to the specific circumstances of the case. This required the Court to consider the financial positions of both parents and the particular expenses related to the child's upbringing, including educational costs and any special needs.

In reaching its decision, the Court applied the principles governing departure determinations under the *Child Support (Registration and Collection) Act 1988*. The Court considered evidence relating to the income, property, and financial resources of both Flint and Palfrey. It also took into account the specific costs incurred and anticipated in relation to the child's education and any special needs the child might have. The Court found that the existing assessment did indeed result in undue hardship.

Consequently, the Court set aside the original child support determination and substituted it with a new assessment that reflected the circumstances found to be relevant to the undue hardship.

Orders