Nunez and Bentley (Child support) - [2023] AATA 2669

Nunez and Bentley (Child support) [2023] AATA 2669 (21 June 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/MC025470
APPLICANT:  Ms Nunez
OTHER PARTIES:  Child Support Registrar
Mr Bentley

TRIBUNAL:Member M Baulch
DECISION DATE: 21 June 2023
DECISION:

The decision under review is varied to the extent that from 1 January 2022 to 31 December 2022, the annual rate of child support otherwise payable by Mr Bentley is increased by $1,179 as Mr Bentley’s contribution to the costs of meeting [Child 1]’s special needs.

CATCHWORDS

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

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

This application for review concerns the amount of child support to be paid by Mr Bentley to Ms Nunez in respect of [Child 1], who was born in 2012.
The Child Support (Assessment) Act 1989 (the Act) provides for an administrative assessment of the child support payable by one separated parent to the other. It uses a statutory formula which contains variables such as the parents’ incomes, the number of children, their ages and their percentages of care.
Since 7 April 2014, Mr Bentley has been assessed as liable, by Services Australia – Child Support (Child Support), to pay child support to Ms Nunez in respect of [Child 1]. Since 1 November 2021 Mr Bentley has been assessed to pay the statutory minimum amount of child support, being $446 per annum.
A parent can make an application to Child Support for a change to the administrative assessment based on the statutory formula in the special circumstances of their case – referred to in the Act as a departure determination. Ms Nunez made such an application on 4 January 2022. The grounds relied upon by Ms Nunez in her application were:
·      the child had special needs;
·      there are extra costs in caring for, educating or training the child in the way both parents intended;
·      the administrative assessment did not correctly reflect one or both of the parents’ income, property or financial resources; and
·      the administrative assessment did not correctly reflect one or both of the parents’ capacity to earn.
The application was considered by a Child Support decision maker who decided, on 15 June 2022, that there was to be a determination departing from the administrative assessment of child support such that for the period 4 January 2022 to 31 December 2024, Mr Bentley’s adjusted taxable income was set at $89,300.
Mr Bentley objected to that decision and, on 19 January 2023, that objection was partly allowed. The objections officer decided to set…

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 Nunez and Bentley (Child support)

Details

AGLC: Nunez and Bentley (Child support) [2023] AATA 2669
Case: [2023] AATA 2669
Decision Date: 21 June 2023

CaseChat Overview and Summary

This matter concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth) by the liable parent, Mr Nunez, against a child support assessment made in favour of Ms Bentley. The application was heard by Member Baulch of the Child Support Special Circumstances Branch.

The primary legal issue before the Member was whether the liable parent had established grounds for a departure from the child support assessment, specifically concerning the income, property, and financial resources of the liable parent, and the special needs of the child. The Member was required to determine if the existing assessment was unfair given these circumstances and whether a departure was justified.

The Member found that a ground for departure was established, noting that the liable parent's income, property, and financial resources were not accurately reflected in the assessment. Furthermore, the Member considered the special needs of the child, which were not adequately accounted for under the standard assessment provisions. Applying the principles of fairness and the objectives of the *Child Support (Registration and Collection) Act 1988*, the Member concluded that a departure from the assessment was warranted.

The decision to depart was varied, resulting in an amended child support assessment that better reflected the financial realities and the child's specific needs.

Orders