Thimbleby and Thimbleby (Child support) - [2021] AATA 3854

Thimbleby and Thimbleby (Child support) [2021] AATA 3854 (24 August 2021)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2021/SC020966
APPLICANT:  Ms Thimbleby
OTHER PARTIES:  Child Support Registrar
Mr Thimbleby

TRIBUNAL:Member M Douglas
DECISION DATE: 24 August 2021
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the annual rate of child support payable by Mr Thimbleby be varied to $446 for the period 1 July 2021 to 31 January 2022.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the liable parent – business income – low capacity to pay child support – 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

The parties to this proceeding are Ms Thimbleby, Mr Thimbleby and the Child Support Registrar. The Registrar acts through a government department known as Services Australia - Child Support and hereafter the Tribunal’s reference to Services Australia is to be taken as a reference to the Registrar.
Mr Thimbleby and Ms Thimbleby are the parents of [Child 1]. Services Australia has issued administrative assessments of child support for [Child 1] since 24 July 2009 that have obligated Mr Thimbleby to pay child support to Ms Thimbleby for him.
On 16 October 2020 Services Australia received an application from Mr Thimbleby for a determination to be made under Part 6A of the Child Support (Assessment) Act 1999 (the Act) to depart from the provisions of the Act relating to the assessment of child support for [Child 1]. Services Australia refers to such an application as a “change of assessment application” and the departure determinations it makes in response to such an application as a “change of assessment decision”. The Tribunal shall adopt those terms in these Reasons.
The assessment in force at the time Mr Thimbleby made his change of assessment application obligated him to pay child support for [Child 1] at an annual rate of $5,886. That assessment was calculated in accordance with a change of assessment decision Services Australia made on 14 October 2018. The decision Services Australia made on 14 October 2018 was in response to an objection Mr Thimbleby had made to an earlier change of assessment decision dated 5 September 2018.
Services Australia made two changes to the assessment by its decision of 14 October 2018. One related to Ms Thimbleby’s adjusted taxable income, and the effect of that change expired on 31 August 2018 and has no relevance to the present matter. The second change was to Mr Thimbleby’s adjusted taxable income which was varied to $74,350 for the period 1 June 2018 to 31 December 2022, with further variations to be made on 1 July each year within that period such…

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

AGLC: Thimbleby and Thimbleby (Child support) [2021] AATA 3854
Case: [2021] AATA 3854
Decision Date: 24 August 2021

CaseChat Overview and Summary

The matter of *Thimbleby and Thimbleby* concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth). The applicant sought to have the assessed child support payable by the respondent parent reduced, arguing that the respondent had a low capacity to pay the assessed amount due to their financial circumstances. The decision under review was made by the Registrar of the Child Support Agency.

The primary legal issue before the court was whether the Registrar had erred in refusing to make a departure determination. Specifically, the court was required to consider whether the respondent's income, property, and financial resources were such that their capacity to pay the assessed child support was unduly affected, thereby justifying a departure from the standard assessment. This involved an examination of the respondent's business income and overall financial position.

The court found that the Registrar had failed to adequately consider the respondent's actual financial capacity, particularly in relation to their business income. The court applied the principles of child support departure, which allow for adjustments to assessed amounts where specific circumstances, such as a low capacity to pay, are demonstrated. The court determined that the respondent's financial position, as presented, warranted a departure from the assessed child support amount.

Consequently, the court set aside the Registrar's decision and substituted its own determination, ordering a reduced child support payment for the respondent.

Orders