Lomas and Randel (Child support) - [2024] ARTA 210

Lomas and Randel (Child support) [2024] ARTA 210 (26 November 2024)

Applicant/s: Mr Lomas

Respondent: Child Support Registrar

Other Parties: Ms Randel

Tribunal Number: 2024/PC028213
Tribunal:Member M Martellotta
Place:Perth
Date:26 November 2024

Decision:The Tribunal affirms the decision under review.

CATCHWORDS

CHILD SUPPORT – departure determination – costs of contact – mother and child living in another country – costs of past travel do not reach specified threshold as high – possibility of departure prohibition order on father – provision of money, goods or property – more than year’s worth of maintenance paid when mother and child departed – funds drawn from joint account and provided voluntarily – earning capacity – father in effect self-employed through own company – undistributed profits used to grow business – mother’s work and earning capacity – decision under review affirmed

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 pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.

Statement of Reasons

BACKGROUND

The applicant and second party are the parents of a child born 11 September 2017. The child is in the above primary care of the second party. The applicant is the payee. The second party resides in [Country].[1]
[1] [Country] is a reciprocating jurisdiction – Schedule 2 to the Child Support (Registration and Collection) Regulations 2018.
The applicant lodged a change of assessment application with Services Australia – Child Support on 3 July 2023. He raised as his grounds:
·Reason 1 – the costs of maintaining the child are significantly affected because of high costs involved in enabling the parent to spend time or communicate with the child.
·Reason 5 – the payee, child or third party has received money, goods or property from the liable parent for the benefit of the child.
·Reason 8B – the second party’s earning capacity.
At the time of the application the assessment in place was as follows:
·1 September 2022–31 August 2023: annual rate of $16,391 based on the applicant’s 2021/22 adjusted taxable income (ATI) of $147,267 and the 2021/22 ATI of $63,180 for the second party;
·1 September 2023–30 November 2024: annual rate of $12,669 based on the applicant’s 2022/23 ATI of $109,961 and the 2022/23 ATI of $63,180 for the second party.
The application lodged by the applicant was refused on the basis that no ground to depart from the assessment had been established. That decision dated 5 October 2023 was upheld on objection (25 June 2024).[2]
[2] The applicant was granted an extension of time by Child Support to make his objection.
The parties participated in a telephone directions hearing convened on 4 October 2024. The parties were directed to provide further information and documents. The parties participated in a hearing conducted by telephone on 13 November 2024 to present submissions and evidence.
The following materials were also provided: Child Support hearing papers containing documents 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.

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Details

Case: [2024] ARTA 210
Decision Date: 26 November 2024

CaseChat Overview and Summary

The matter before the Administrative Review Tribunal (ART) in Lomas and Randel involved an application by Mr Lomas to depart from the administrative assessment of child support. The Tribunal was required to determine whether there were grounds to depart from the assessment and, if so, whether it was just and equitable to do so. The central issues were whether the costs of maintaining contact with the child were significantly affected due to high travel expenses, whether the mother had received financial support from the father, and whether the mother's earning capacity was accurately reflected in the assessment.

The Tribunal examined each ground for departure in turn. Regarding the costs of contact, the Tribunal found that the father's out-of-pocket expenses for travel did not reach the threshold of 5% of his adjusted taxable income, and thus did not establish a ground for departure. Concerning the provision of money, goods, or property, the Tribunal was not satisfied that the father had provided a motor vehicle for the mother's use, nor did the evidence support that the funds provided were for the benefit of the child. Lastly, regarding the mother's earning capacity, the Tribunal noted that while there had been changes in her employment, these did not meet the criteria for departure. The Tribunal also considered the father's income derived from his self-employment but concluded that, while there were undistributed profits, these were being used to grow the business rather than being available to him as a financial resource.

Ultimately, the Tribunal found that no ground to depart from the administrative assessment had been established. It affirmed the decision under review, upholding the assessment of child support as calculated by the Child Support Registrar.

Orders