Marson and Jonas (Child support) - [2021] AATA 2723

Marson and Jonas (Child support) [2021] AATA 2723 (28 May 2021)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2020/AC020329
APPLICANT:  Mr Marson
OTHER PARTIES:  Child Support Registrar
Mrs Jonas

TRIBUNAL:Member P Noonan
DECISION DATE: 28 May 2021
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that Mr Marson’s adjusted taxable income is varied to $59,347.79 per annum from 14 January 2020 to 30 June 2020 and to $46,691.00 from 1 July 2020 to 30 June 2021.

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 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

Mr Marson and Mrs Jonas are the parents of two children who are 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 Services Australia (‘the Department’) on 12 January 2012 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 23 May 2025.
On 13 March 2020 Mr Marson applied for a departure from the assessment of child support payable at that time. Care of the children was registered as being 100% to Mrs Jonas. At the time of Mr Marson’s departure application the applicable assessment of child support payable was that Mr Marson was assessed to pay an annual rate of child support of $966.00. This assessment was based on an estimated 2019–20 adjusted taxable income of $28,678.00 for Mr Marson, and a provisional 2018–19 adjusted taxable income of $16,925.00 for Mrs Jonas.
On 17 July 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 January 2020 to 13 January 2021, the adjusted taxable income of Mr Marson is set at $59,488.00.
Mr Marson objected to this decision and on 18 August 2020 a Department objections officer disallowed his objection.
On 26 November 2020 Mr Marson applied to the Administrative Appeals Tribunal (the Tribunal) for an independent review.
A hearing for the matter was held on 28 May 2021. Both Mr Marson and Mrs Jonas attended the hearing by conference telephone and gave evidence on affirmation. Mr Marson is represented…

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 Marson and Jonas (Child support)

Details

AGLC: Marson and Jonas (Child support) [2021] AATA 2723
Case: [2021] AATA 2723
Decision Date: 28 May 2021

CaseChat Overview and Summary

This matter concerned an application by Mr Marson for a departure determination from a child support assessment made in relation to Mrs Jonas. The dispute centred on whether the administrative assessment accurately reflected the parties' respective incomes, property, and financial resources, and whether a departure from that assessment would be just and equitable. The decision was made by a Tribunal.

The Tribunal was required to determine if a ground for departure existed under subparagraph 117(2)(c)(ia) of the Child Support (Registration and Collection) Act 1988, which relates to the income, property, and financial resources of the liable parent. It also had to consider whether departing from the administrative assessment would be just and equitable, having regard to the proper needs of the children, the manner in which they were being cared for, educated, or trained, and any special needs they might have, as stipulated by subsection 117(6) of the Act.

The Tribunal found that Mrs Jonas was reliant on Commonwealth income support payments and had no significant assets, apart from a share in the former matrimonial home occupied by Mr Marson, which had not been subject to property settlement. Mr Marson maintained the mortgage on this property. The Tribunal accepted Mrs Jonas's disclosed income of $16,925.00 as a reasonable reflection of her financial resources. In contrast, the Tribunal determined that Mr Marson's income and financial resources at the time of the departure application were reflective of an income of $59,347.79 per annum, a figure significantly different from the $16,925.00 used in the administrative assessment. This material difference established special circumstances, meaning a ground for departure under subparagraph 117(2)(c)(ia) did not exist. The Tribunal also considered Mr Marson's disclosed assets, including superannuation of $230,000.00, and concluded he had sufficient income to meet his expenses. It accepted Mrs Jonas's disclosed expenses as reasonable and noted that any child support payable would assist her in maintaining the children. The Tribunal referenced established principles regarding the consideration of children's needs in departure applications, including the reasonableness of disclosed needs, the use of published guidelines, and the costs of children used in formula assessments.

The Tribunal set aside the decision to depart from the administrative assessment and substituted its own decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The evidence before the Tribunal indicates that Mrs Jonas is entirely reliant upon Commonwealth income support payments and this was also the case at the time of Mr Marson’s departure application. Mrs Jonas rents privately and has no assets of any note to her name, other than a joint share in her former residence with Mr Marson, which Mr Marson lives in and which has not been subject to a property settlement. The Tribunal notes that Mr Marson maintains the mortgage with respect to that property. The Tribunal is satisfied that the income maintained in the administrative assessment of $16,925.00 with respect to Mrs Jonas is a reasonable reflection of her overall income and access to financial resources. Departure ground conclusion Under the applicable assessment, the rate of child support payable by Mr Marson is $966.00 per annum. The Tribunal has determined that his income and overall access to financial resources is reflective of an income of $59,347.79 per annum at the time of the departure application. The annual amount of child support payable by Mr Marson using this figure and Mrs Jonas’s income of $16,925.00 is approximately $9,794.00 per annum. Such an amount is materially different and establishes special circumstances in this matter. Accordingly, a ground for departure under subparagraph 117(2)(c)(ia) of the Act does not exist. Would departure from the administrative assessment be just and equitable?Mr Marson In his Statement of Financial Circumstances Mr Marson disclosed the former matrimonial home, minimal funds in the bank, a car worth $5,000.00, superannuation of $230,000.00, a mortgage of $200,000.00, a small amount of credit card debt and weekly household expenses of $550.00 or $28,600.00 per annum. He confirmed that he continues to work in the same employment. Overall the Tribunal concludes that Mr Marson has sufficient income to meet his necessary expenses for self-support and that his financial disclosures are reasonable. Mrs Jonas did not disclose any assets or liabilities of note. She listed weekly household expenses of $840.00 or $43,680.00 per annum. On the evidence before it, the Tribunal accepts Mrs Jonas’s financial disclosures to be reasonable. Clearly any child support payable to her will be of assistance to her in maintaining the children. In determining the proper needs of the child, it is necessary to have regard to the manner in which the children are being, and in which the parents expected the children to be, cared for, educated or trained, and any special needs of the children (subsection 117(6) of the Act). In Eades & Cadell (SSAT Appeal) [2009] FMCAfam 275 at paragraph 22, Slack FM stated as follows:In considering the proper needs of the child [s 117(4)(b)], the SSAT:a.would ordinarily consider the evidence of the parties about the needs of the children to assess the reasonableness and quantum of those needs;b.may have regard to publish guidelines as to the needs of the children (see Hallinan & Witynski at 94.323).c.may also have regard to the costs of children used in the assessment of child support under the existing formula arrangements (although it is not sufficient or appropriate to rely upon the formula to perform that task, Lindenmayer J in Dwyer & McGuire (1993) FLC92-420 (and see also Gyselman (supra) at 79.078).

Ratio Decidendi

Legal Principle Established

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