Malghum and Greaves (Child support) - [2021] AATA 468

Malghum and Greaves (Child support) [2021] AATA 468 (18 January 2021)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2020/BC019661
APPLICANT:  Miss Malghum
OTHER PARTIES:  Child Support Registrar
Mr Greaves

TRIBUNAL:Member P Noonan
DECISION DATE: 18 January 2021
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides to refuse to make a determination pursuant to section 98F of the Child Support (Assessment) Act 1989.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the liable parent – special needs of the child – costs of special needs do not significantly affect the cost of maintaining the child – no ground for departure established – refuse to make determination – s98F Child Support (Assessment) Act 1989 – 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

Miss Malghum and Mr Greaves are the parents of one child who is currently relevant to the child support assessment.
The Child Support (Assessment) Act 1989 (“the Act”) provides for an administrative assessment of the child support payable. It uses a formula, which contains variables such as the parents’ adjusted taxable incomes and their percentages of care of the children. The Act also provides for a departure from the administrative assessment in certain circumstances.
A child support case was first registered with the Department of Human Services (the Department) on 22 November 2016 and child support was registered for collection by the Department from the same date. The Department maintains a case completion date for this matter of 4 October 2034.
On 14 November 2019 Miss Malghum applied for a departure from the assessment of child support payable at that time. Care of the child was registered as being 365 nights per year to Miss Malghum. At the time of Miss Malghum’s departure application the applicable assessment of child support payable was that for the period 25 September 2019 to 19 December 2019, Mr Greaves was assessed to pay child support of $1,863, per annum based on based on his 2018/19 adjusted taxable income of $40,560 and Miss Malghum’s 2018/19 adjusted taxable income of $40,793.
On 26 February 2020, a Department officer acting as a delegate of the Child Support Registrar, found that a ground for departure was established and decided to depart from the assessment such that for the period 14 November 2019 to 30 November 2021, Mr Greaves’ adjusted taxable income is set at $68,780.
Mr Greaves objected to this decision and on 10 July 2020 a Department objections officer allowed his objection. The officer decided to depart in the following terms:
·For the period 14 November 2019 to 29 March 2020, Mr Greaves’ adjusted taxable income is set at $63,293.
·For the…

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.

Keep reading for free

Create a free CaseChat account to read Malghum and Greaves (Child support) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] AATA 468
Decision Date: 18 January 2021

CaseChat Overview and Summary

The matter of *Malghum and Greaves* concerned an application for a departure determination under the *Child Support (Assessment) Act 1989* (Cth). The applicant sought to have the child support assessment varied on the basis of the liable parent's income, property, and financial resources, and the special needs of the child. The decision was made by P Noonan M.

The primary legal issue before the court was whether the costs associated with the child's special needs significantly affected the cost of maintaining the child, thereby establishing a ground for departure from the standard child support assessment. The court was required to consider the provisions of section 98F of the *Child Support (Assessment) Act 1989* in determining if the threshold for a departure determination had been met.

The court reasoned that while the child did have special needs, the evidence did not demonstrate that the costs incurred in meeting those needs significantly impacted the overall cost of maintaining the child. Applying the principles of section 98F, the court found that no ground for departure was established. Consequently, the court refused to make a departure determination. The decision under review was set aside and substituted with the court's own determination.

Orders