Aguilar and Aguilar (Child support)

This case concerned a review by Mr Aguilar of a decision by the Child Support Registrar to vary his adjusted taxable income for child support purposes. Mr Aguilar and Ms Aguilar are the parents of a child born in June 2003. The Child Support Registrar had varied Mr Aguilar's adjusted taxable income to $70,000 for the period 1 November 2019 to 31 October 2020, disallowing Mr Aguilar's objection to this change. Mr Aguilar sought a review of this decision before the Social Services and Child Support Division of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether there were "special circumstances" that would justify a departure from the standard administrative assessment of child support, specifically under subparagraph 117(2)(c)(ia) of the Child Support (Assessment) Act 1989, which relates to the income, property, and financial resources of a parent. The Tribunal also had to consider whether any such departure would be just and equitable and otherwise proper. Mr Aguilar contended that his termination payment should not be assessed as income for child support purposes, as he had spent it on necessary expenses and was now in receipt of a disability support pension. Ms Aguilar argued that the assessment should reflect Mr Aguilar's actual income and financial resources.

The Tribunal reasoned that while the child support formula should generally apply, a departure is permissible in special circumstances where the standard assessment would result in an unjust and inequitable determination. It noted that it is common for redundancy payments to be considered as available financial resources for child support purposes for a reasonable period after receipt, as children should share in such resources. The Tribunal found that Mr Aguilar's lump sum payment of approximately $85,000 (net $53,000) was not adequately reflected in the initial assessment of nil income. Despite acknowledging Mr Aguilar's medical expenses and the impact of tax on his lump sum, the Tribunal determined that a fair assessment of his adjusted taxable income for the period 1 November 2019 to 31 October 2020 was $70,000, considering it just and equitable in the interests of the child. The Tribunal also found that a departure was proper, as parents have the primary duty to maintain their children.

The Tribunal affirmed the decision of the Child Support Registrar, meaning Mr Aguilar's adjusted taxable income was to remain at $70,000 for the specified period. The Tribunal noted that from November 2020, Mr Aguilar's assessment had reverted to the minimum annual rate, reflecting his status as a disability support pensioner, and that he could manage his outstanding arrears over time.