Kaetzel and Babe (Child support) - [2020] AATA 5823

Kaetzel and Babe (Child support) [2020] AATA 5823 (1 December 2020)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2019/SC017747
APPLICANT:  Mr Kaetzel
OTHER PARTIES:  Child Support Registrar
Ms Babe

TRIBUNAL:Senior Member A Freeman
DECISION DATE: 1 December 2020
DECISION:

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

·     for the period from 9 April 2019 to 30 June 2021, Mr Kaetzel’s adjusted taxable income is varied to $37,859;
·     for the period from 23 January 2019 to 30 June 2019, Ms Babe’s adjusted taxable income is varied to $57,637; and
·     for the period from 1 July 2019 to 30 June 2021, Ms Babe’s adjusted taxable income is varied to $72,000.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the carer entitled to receive – 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

Mr Kaetzel and Ms Babe are the parents of six children, four of whom are currently subject to the assessment of child support. Mr Kaetzel’s care percentage at the time of the objection decision was recorded for the purposes of assessing child support as being 89% for the eldest child [Child 1], 38% for [Child 2] and [Child 3] and 33% for [Child 4] and [Child 5]. [Child 1] ceased to be an eligible child for the purposes of the assessment in October 2019.
Ms Babe lodged an application with the Department of Human Services (now Services Australia) (the Agency) on 18 April 2019 seeking a departure from the administrative assessment of child support on the basis that Mr Kaetzel’s income and financial resources made the assessment of child support unfair. At the time of the application, Ms Babe was liable to pay an annual rate of child support of $4,321 to Mr Kaetzel. This was calculated using an adjusted taxable income (ATI) of $70,025 for Ms Babe and an ATI of $19,278 for Mr Kaetzel.
On 18 July 2019, the Agency found that grounds to depart existed and varied Mr Kaetzel’s ATI to $120,000 for a period from 9 April 2019 to 30 November 2020 and varied Ms Babe’s ATI to $69,000 for a period from 23 January 2019 to 30 November 2020.
Mr Kaetzel objected to this decision and on 2 October 2019 an objections officer allowed the objection and set aside the earlier decision, making the following decision in substitution:
· Mr Kaetzel’s ATI was varied to $120,000 for a period from 9 April 2019 to 15 July 2019;
· Ms Babe’s ATI was varied to $69,000 for a period from 23 January 2019 to 15 July 2019 and
·…

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 Kaetzel and Babe (Child support)

Details

AGLC: Kaetzel and Babe (Child support) [2020] AATA 5823
Case: [2020] AATA 5823
Decision Date

CaseChat Overview and Summary

This matter concerned an application by Mr Kaetzel for a review of a child support departure determination made by the Child Support Registrar. The dispute arose from an application by Ms Babe seeking a departure from the administrative assessment of child support, arguing that Mr Kaetzel’s income and financial resources made the assessment unfair. The original assessment involved Ms Babe paying Mr Kaetzel child support, calculated using their respective adjusted taxable incomes (ATIs). An initial departure determination varied both parties' ATIs, but a subsequent objection decision set the annual child support rate at $0 for a specified period, which Mr Kaetzel sought to have reviewed by the Tribunal.

The Tribunal was required to determine whether a ground for departure from the administrative assessment of child support existed, and if so, whether making a departure order would be just and equitable having regard to the circumstances of both parents and the children. Specifically, the Tribunal needed to consider if the application of the administrative assessment would result in an unjust and inequitable determination of financial support due to the income, earning capacity, property, and financial resources of either parent. The Tribunal also had to assess the proper needs of the children, the necessary commitments of each parent to support themselves and any other dependants, the costs incurred by the carer parent, and any hardship that might arise from making or refusing a departure order.

The Tribunal found that a ground for departure was established because Mr Kaetzel's income and financial resources, particularly during the period of his full-time employment from April to July 2019, were greater than initially assessed for child support purposes, making the assessment unfair in the special circumstances of the case. In considering whether a departure would be just and equitable, the Tribunal examined the financial positions of both parents. It noted Mr Kaetzel's fluctuating income, his reliance on savings and Centrelink payments, his ongoing expenses including school fees for the children, and his intention to repay a loan. It also considered Ms Babe's stable full-time employment and her property ownership. The Tribunal ultimately varied the adjusted taxable incomes for both parties for different periods to reflect their financial circumstances more accurately.

In substitution for the decision under review, the Tribunal ordered that Mr Kaetzel's adjusted taxable income be varied to $37,859 for the period from 9 April 2019 to 30 June 2021. Ms Babe's adjusted taxable income was varied to $57,637 for the period from 23 January 2019 to 30 June 2019, and to $72,000 for the period from 1 July 2019 to 30 June 2021.

Orders