Maltby and Maltby (Child support) - [2023] AATA 2670

Maltby and Maltby (Child support) [2023] AATA 2670 (4 July 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER: 2022/MC025285
2022/MC025312

APPLICANT: Ms Maltby
OTHER PARTIES: Child Support Registrar
Mr Maltby

TRIBUNAL:Senior Member D Benk
DECISION DATE: 4 July 2023
DECISION:

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

That from 9 March 2022 (the date of the application for a change of assessment) to 31 December 2024, Mr Maltby’s annual rate of child support is to be assessed at $15,000 (exclusive of school fee contribution).

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 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

Prior to Ms Maltby’s change of assessment application, Mr Maltby was assessed to pay child support of $12,676 per annum to Ms Maltby for the period 1 December 2021 to 28 February 2023 for his two children, [Child 1] now age 16 and [Child 2] now age 11. This was based on the adjusted taxable income of $75,000 for Mr Maltby as set in the objection decision dated 31 March 2021 and Ms Maltby’s 2020/21 adjusted taxable income of $50,835.
On considering the change of assessment application and following multiple internal reviews, an objections officer determined there were grounds to depart from the previous assessment and determined:
·      That for the period 1 July 2021 to 30 September 2022 Ms Maltby’s adjusted taxable income be set at $56,262.
·      That for the period 1 July 2021 to 31 October 2024 Mr Maltby’s adjusted taxable income be set at $116,000.
·      That for the period 1 July 2021 to 22 August 2022 the cost of child amount as it relates to [Child 1], be increased by $1,658.
The net effect of these findings was to increase the rate of child support payable by Mr Maltby as follows:
·      For the period 1 July 2021 to 20 October 2021 from $14,349 per annum to $23,140 per annum
·      For the period 21 October 2021 to 30 November 2021 from $12,866 per annum to $23,431 per annum
·      For the period 1 December 2021 to 3 March 2022 from $12,676 per annum to $23,463 per annum
·      For the period 4 March 2022 to 22 August 2022 from $10,389 per annum to $19,906 per annum
·      For the period 23 August 2022 to 30 September 2022 from $10,389 per annum to $18,663 per annum
·      For the period 1 October 2022 to 28 February 2023 from $10,389 per annum to $18,618 per annum.
Both parties are dissatisfied with this decision. Ms Maltby asserts that Mr…

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: [2023] AATA 2670
Decision Date: 4 July 2023

CaseChat Overview and Summary

The case of *Maltby and Maltby (Child Support)* concerned a review of a departure determination made by the Child Support Registrar. The dispute involved the income, property, and financial resources of the liable parent, with the Registrar having previously determined that a ground for departure from the standard child support assessment had been established. The decision under review was the Registrar's subsequent decision to depart from the assessment.

The primary legal issue before the Court was whether the Registrar's decision to depart from the child support assessment was justified. This required the Court to consider the evidence relating to the liable parent's financial circumstances and determine if those circumstances met the criteria for a departure, as outlined in the relevant legislation. The Court also had to assess whether the Registrar had correctly applied the principles governing departure determinations.

In reaching its decision, the Court examined the specific financial information presented concerning the liable parent. The Court applied the principles established in child support legislation and case law, which permit departure from a child support assessment in certain circumstances, including where the liable parent has a significantly higher earning capacity than their assessed income, or where they have deliberately reduced their income or acquired assets that reduce their child support obligations. The Court found that the Registrar's original decision to depart was not supported by the evidence or the correct application of the law. Consequently, the Court set aside the Registrar's departure determination and substituted its own decision.

Orders