Malleson and Medwin (Child support) - [2022] AATA 4989

Malleson and Medwin (Child support) [2022] AATA 4989 (21 October 2022)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2021/MC022811
APPLICANT:  Ms Malleson
OTHER PARTIES:  Child Support Registrar
Mr Medwin

TRIBUNAL:Senior Member J Longo (Presiding Member)
Senior Member S De Bono

DECISION DATE: 21 October 2022
DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the liable parent – a ground for departure established – decision to depart - decision under review affirmed

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed 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

The issue to be determined in this application is whether there is a reason to change the administrative assessment of child support and whether it is just and equitable and otherwise proper to do so.
Mr Medwin and Ms Malleson are the parents of [Child 1] and [Child 2]. Mr Medwin is the parent liable to pay child support. The application for child support was registered with Services Australia – Child Support (the Agency) from 6 June 2008 and is currently subject to collection. The children are in the primary care of Ms Malleson.
Prior to the application for a change of assessment, Mr Medwin was assessed to pay an annual rate of child support as follows:

For the period 1 November 2020 to 13 April 2021, the annual rate of child support payable by Mr Medwin was $34,275, based on income of $157,000 for Mr Medwin and a 2019/2020 adjusted taxable income of $68,282 for Ms Malleson.
For the period 14 April 2021 to 31 January 2022, the annual rate of child support payable by Mr Medwin was $28,598, based on the income of $157,000 for Mr Medwin and a 2019/2020 adjusted taxable income of $68,282 for Ms Malleson. The decrease in the annual rate was due to [Child 2] turning 18 years of age.

Mr Medwin applied to the Agency for a departure from the administrative assessment on 15 April 2021 on the basis that, in the special circumstances of the case, his capacity to provide financial support for the children is significantly affected because of a reduction in his income, property and financial resources (Reason 8A) and in the special circumstances of the case, his capacity to provide financial support for the children is significantly affected because of his duty to maintain another child or another person (Reason 9).
On 28 May 2021 the Agency did not find change the assessment as a Reason was not established.
Mr Medwin objected to the decision on 23 July 2021. An objections officer of the Agency allowed the objection in part on 28 October 2021 and changed the assessment as follows:

For the period 15 August 2021 until 30 September 2021, Mr Medwin’s…

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 Malleson and Medwin (Child support)

Details

AGLC: Malleson and Medwin (Child support) [2022] AATA 4989
Case: [2022] AATA 4989
Decision Date: 21 October 2022

CaseChat Overview and Summary

This matter concerned an appeal by the liable parent, Malleson, against a departure determination made by the Registrar of Child Support. The dispute centred on whether the Registrar had correctly considered the income, property, and financial resources of Malleson when making the determination to depart from the administrative assessment of child support. The appeal was heard by SM J Longo.

The primary legal issue before the court was whether the Registrar had erred in law or fact in making the departure determination. Specifically, the court was required to consider whether the Registrar had properly assessed Malleson's financial circumstances and whether these circumstances warranted a departure from the standard child support assessment.

SM J Longo affirmed the Registrar's decision, finding that a ground for departure had been established. The court reasoned that the Registrar had adequately considered the relevant financial information provided by Malleson and had applied the correct legal principles in determining that the standard assessment would not be just and equitable in the circumstances. The court was satisfied that the Registrar’s decision was sound and supported by the evidence.

Orders