Jenson and Jenson (Child support) - [2024] AATA 3246

Jenson and Jenson (Child support) [2024] AATA 3246 (24 July 2024)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/BC027124
APPLICANT:  Mr Jenson
OTHER PARTIES:  Child Support Registrar
Ms Jenson

TRIBUNAL:Member E Kidston
DECISION DATE: 24 July 2024
DECISION:

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

For the period 10 May 2022 to 30 June 2022 Mr Jenson’s adjusted taxable income will be varied to $198,886;
For the period 1 July 2022 to 30 June 2023 Mr Jenson’s adjusted taxable income will be varied to $334,485;
For the period 1 July 2023 to 30 June 2025 Mr Jenson’s adjusted taxable income will be varied to $231,500.

CATCHWORDS

CHILD SUPPORT – departure from the administrative assessment – income, property and financial resources – father’s adjusted taxable income – no jurisdiction to consider father’s claim of procedural unfairness – inaccurate and unfair amounts – self-employment company structures, financial information, change of accountants and Family Court and ATO proceedings – significantly higher additional financial benefits from business – mother and child’s hardship if departure determination not made – 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

Mr Jenson and Ms Jenson are the separated parents of [the child] (born 2017). A child support case was registered with Services Australia − Child Support (Child Support) in March 2017 with collection from 10 February 2022.
The Child Support (Assessment) Act 1989 (the Assessment Act) provides for an administrative assessment of child support payable. It uses a statutory formula which takes into account factors such as the number and age of the children, the level of care provided by each parent and the income of each parent. The Assessment Act also provides for a departure from the administrative assessment (commonly termed a change of assessment) in certain circumstances.
On 10 May 2023 Ms Jenson made an application for a change of assessment on the basis of Mr Jenson’s income and financial resources not being fairly reflected in the assessment for child support. The administrative assessments relevantly in place from that time were:
For the period 10 February 2022 to 30 April 2022, Mr Jenson was assessed to pay child support at annual rate of $5721. This assessment was based on Ms Jenson’s 2020-21 provisional adjusted taxable income amount of $50 000 and Mr Jenson’s 2020-21 adjusted taxable income amount of $122 549.
For the period 1 May 2022 to 14 June 2022, Mr Jenson was assessed to pay child support at annual rate of $5986. This assessment was based on Ms Jenson’s 2020-21 provisional adjusted taxable income amount of $50 000 and Mr Jenson’s 2020-21 adjusted taxable income amount of $122 549. Ms Jenson’s allowances changed 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 Jenson and Jenson (Child support)

Details

AGLC: Jenson and Jenson (Child support) [2024] AATA 3246
Case: [2024] AATA 3246
Decision Date: 24 July 2024

CaseChat Overview and Summary

The case of *Jenson and Jenson (Child Support)* concerned an application to depart from a child support administrative assessment. The primary dispute involved the father's adjusted taxable income and the extent to which certain financial benefits derived from his business should be considered in the child support calculation. The matter came before Member E Kidston of the [relevant tribunal or court].

The court was required to determine whether it had jurisdiction to consider the father's claim of procedural unfairness in relation to the assessment. Furthermore, the court had to decide whether the existing assessment was inaccurate and unfair, particularly in light of the father's self-employment, the use of company structures, changes in his accounting arrangements, and ongoing proceedings in the Family Court and with the Australian Taxation Office. A key issue was whether the father received significantly higher additional financial benefits from his business than were reflected in the administrative assessment, and whether the mother and child would suffer hardship if a departure determination was not made.

Member Kidston reasoned that the tribunal lacked jurisdiction to consider the father's claim of procedural unfairness, as this fell outside the scope of the child support legislation governing departure from assessments. However, the Member found that the administrative assessment was indeed inaccurate and unfair. This conclusion was based on evidence demonstrating that the father received substantial financial benefits from his business that were not adequately captured by the assessment. The court applied the principles of the *Child Support (Registration and Collection) Act 1988*, focusing on the need to ensure assessments accurately reflect a parent's financial capacity and to prevent hardship.

The decision under review was set aside and substituted with a new determination that took into account the additional financial benefits received by the father, thereby ensuring a more equitable child support obligation and preventing hardship for the mother and child.

Orders