Rylance and Lobell (Child support) - [2023] AATA 2959

Rylance and Lobell (Child support) [2023] AATA 2959 (25 July 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/PC025902
APPLICANT:  Mr Rylance
OTHER PARTIES:  Child Support Registrar
Ms Lobell

TRIBUNAL:Senior Member R Ellis
DECISION DATE: 25 July 2023
DECISION:

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

for the period from 7 June 2022 to 16 November 2022 the adjusted taxable income of Mr Rylance is varied to $91,746; and
for the period from 7 June 2022 to 30 October 2023 the adjusted taxable income of Ms Lobell is varied to $86,965.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of both parents – a ground for departure established b– 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

This review is about whether or not there should be a departure from the administrative assessment of child support.
Mr Rylance and Ms Lobell are the parents of [Child 1] (born July 2004) and [Child 2] (born September 2006). There has been a child support assessment in place since 15 August 2013 and Ms Lobell is currently the liable parent under the assessment.
The following administrative assessments of child support are under consideration:
·     for the period from 24 December 2021 to 30 September 2022 Mr Rylance was assessed to pay an annual rate of $1,572 based on a 2020-21 adjusted taxable income of $55,479 for Mr Rylance and a 2020-21 adjusted taxable income for Ms Lobell of $44,575;
·     for the period from 1 October 2022 to 18 November 2022 Ms Lobell was assessed to pay an annual rate of $4,338 based on a 2021-22 adjusted taxable income of $56,196 for Mr Rylance and a 2021-22 adjusted taxable income for Ms Lobell of $86,965; and
·     for the period from 19 November 2022 to 31 December 2023 Ms Lobell was assessed to pay an annual rate of $12,924 based on a 2021-22 adjusted taxable income of $56,196 for Mr Rylance and a 2021-22 adjusted taxable income for Ms Lobell of $86,965.
The Tribunal notes that the increase in the annual rate payable by Ms Lobell arose when [Child 1] ceased to be an eligible child of the assessment on 19 November 2022.
On 7 June 2022 Mr Rylance applied to Services Australia – Child Support (Child Support) for a change to the assessment on the basis of a parent’s income, property and financial resources (the ground commonly known as Reason 8A).
On 3 January 2023 Child Support made the decision to refuse to change the assessment under section 98F of the Child Support (Assessment) Act 1989 (the Act) as it was not just and…

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 Rylance and Lobell (Child support)

Details

AGLC: Rylance and Lobell (Child support) [2023] AATA 2959
Case: [2023] AATA 2959
Decision Date: 25 July 2023

CaseChat Overview and Summary

This matter concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth) brought by the applicant, Rylance, against the respondent, Lobell. The dispute centred on the assessment of child support payable by Lobell for the parties' child. The decision was made by Senior Member R Ellis.

The primary legal issue before the court was whether the existing child support assessment should be departed from. This required the court to consider whether any of the grounds for departure, as set out in the *Child Support (Registration and Collection) Act 1988*, were established, and if so, whether it was just and equitable to make a departure determination. Specifically, the court had to examine the income, property, and financial resources of both Rylance and Lobell.

Senior Member Ellis found that a ground for departure was established, having regard to the financial circumstances of both parties. The court then considered whether it was just and equitable to depart from the assessment. After weighing the relevant factors, the Senior Member concluded that a departure was warranted.

The decision under review was set aside and substituted with a new determination.

Orders