Kelbarch and Kelbarch (Child support) - [2024] AATA 4132

Kelbarch and Kelbarch (Child support) [2024] AATA 4132 (22 August 2024)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2024/AC027446
APPLICANT:  Mr Kelbarch
OTHER PARTIES:  Child Support Registrar
Ms Kelbarch

TRIBUNAL:Senior Member S De Bono
DECISION DATE: 22 August 2024
DECISION:

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

For the period 1 January 2023 to 30 June 2023 Mr Kelbarch’s ATI is set at $83,356.
For the period 1 July 2023 to 31 December 2024 Mr Kelbarch’s ATI is set at $67,392.
For the period 1 January 2023 until [Child 1] finishes primary school Mr Kelbarch’s child support is increased by $3,375 annually being his contribution to [Child 1]’s school fees.

CATCHWORDS
CHILD SUPPORT – change of assessment – a ground for departure established – special circumstances exist – decision not to work is justified on the basis of his state of health – earning capacity is not greater than the income – mental health – 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 theChild Support (Registration and Collection) Act 1988.

REASONS FOR DECISION

BACKGROUND

The issue to be considered in this application is whether there is a reason to change the administrative assessment of child support and, if so, whether it is just and equitable and otherwise proper to do so.
Ms Kelbarch and Mr Kelbarch are the parents of [Child 1] and [Child 2] (the children). Ms Kelbarch is recorded as having 100% care and Mr Kelbarch is recorded as having 0% care, which has applied to the administrative assessment of child support from the start of the assessment on 11 March 2020. Mr Kelbarch has been the parent liable to pay child support. Child support has been collected from Services Australia (Child Support) from 8 July 2020.
There was a change of assessment determination made by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal) on 3 December 2021. The Tribunal established Reason 3 and Reason 8A and made the following departure determination:
·From 8 August 2020 to 16 September 2021, Mr Kelbarch’s adjusted taxable income is varied to $45,000 per annum;
·From 17 September 2021 to 31 December 2022, Mr Kelbarch’s adjusted taxable income is varied to $189,000 per annum;
·From 8 August 2020 to 31 December 2020, Mr Kelbarch’s rate of child support payable is increased by $2,850 per annum;
·From 1 January 2021 to 16 September 2021, Mr Kelbarch’s rate of child support payable is increased by $3,100 per annum; and
·From 17 September 2021 to 31 December 2022, Mr Kelbarch’s rate of child support payable is increased by $9,900 per annum.
On 14 June 2022 Mr Kelbarch applied for a change of assessment on the basis of Reason 8A –…

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 Kelbarch and Kelbarch (Child support)

Details

AGLC: Kelbarch and Kelbarch (Child support) [2024] AATA 4132
Case: [2024] AATA 4132
Decision Date: 22 August 2024

CaseChat Overview and Summary

This matter concerned an application for a child support assessment to be changed, brought by the applicant parent, Kelbarch, against the respondent parent, also named Kelbarch. The dispute centred on whether a departure from the standard child support assessment was warranted due to special circumstances.

The court was required to determine whether the respondent's decision not to work was justified by his state of health, and consequently, whether his earning capacity was not greater than his actual income. The core legal issue was whether these circumstances constituted "special circumstances" sufficient to justify a departure from the standard assessment under the relevant legislation.

Senior Member S De Bono found that the respondent's decision not to work was indeed justified by his mental health condition. The evidence presented established that his earning capacity was not greater than his current income, thereby satisfying the criteria for special circumstances. The Senior Member concluded that the existing assessment did not properly reflect the respondent's actual financial situation due to his health limitations.

Consequently, the decision under review was set aside and substituted with a new assessment that took into account the respondent's justified inability to earn at a higher capacity.

Orders