Aragona and Pacitto (Child support) - [2020] AATA 1754

Aragona and Pacitto (Child support) [2020] AATA 1754 (16 April 2020)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2019/SC017956
APPLICANT:  Ms Aragona
OTHER PARTIES:  Child Support Registrar
Mr Pacitto

TRIBUNAL:Member T Bubutievski
DECISION DATE: 16 April 2020
DECISION:

The decision under review is set aside and substituted with the following:

a)Mr Pacitto’s adjusted taxable income is set at $39,876 for the period 15 January 2019 to 1 July 2019; and
b)Mr Pacitto’s adjusted taxable income is set at $52,000 for the period 2 July 2019 until such time as a terminating event occurs in relation to [the Child].

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the liable parent - 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

Mr Pacitto and Ms Aragona are the parents of two children. Their son turned 18 years of age on 20 April 2019, and lives with Mr Pacitto. Their daughter will turn 18 years of age in 2021, and lives with Ms Aragona. There have been a number of departures from the administrative assessment during the history of the case.
On 21 December 2018 Ms Aragona made an application to the Department of Human Services (Child Support) (the Department) for a change to the child support assessment on the basis that Mr Pacitto’s income and financial resources were not correctly reflected in the assessment. At that time Mr Pacitto was assessed to pay child support at the annual rate of $2,225 based on his 2018 taxable income of $39,876. On 5 March 2019 a Departmental delegate decided to depart from the administrative assessment on the basis that a reason was established by virtue of Mr Pacitto’s [pension], which is paid to him in $US and does not appear in his Australian taxable income. The delegate increased Mr Pacitto’s adjusted taxable income by $31,637 per annum from 15 January 2019 until such time as a terminating event occurs in relation to their daughter, [the Child].
Mr Pacitto objected to this decision, and on 5 August 2019 a Departmental delegate of the Child Support Registrar allowed the objection and decided to increase Mr Pacitto’s adjusted taxable income by $19,265 for the period 15 January 2019 until 19 April 2019, and then by $18,561 per annum from 20 April 2019 until such time as a terminating event occurs in relation to their daughter, [the Child]. The reason for the reduction from 20 April 2019 is that this is their son’s 18^th birthday, and from that date Mr Pacitto would no longer be eligible for a dependent supplement for him (US$46 per month) as part of his [pension].
On 24 September 2019 Ms Aragona made an application…

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

Case: [2020] AATA 1754
Decision Date: 16 April 2020

CaseChat Overview and Summary

This matter concerned an appeal by the liable parent, Mr Aragona, against a departure determination made by the Registrar of the Child Support Agency. The determination had the effect of increasing the child support payable by Mr Aragona to the payee parent, Ms Pacitto. The dispute centred on the Registrar's assessment of Mr Aragona's income, property, and financial resources. The appeal was heard by Deputy Registrar T Bubutievski.

The primary legal issue before the Deputy Registrar was whether the Registrar's decision to depart from the usual child support assessment formula was justified. This required the Deputy Registrar to consider whether Mr Aragona's actual financial circumstances, including his income, property, and financial resources, were such that the standard assessment did not make proper or adequate provision for the child's maintenance. Specifically, the Deputy Registrar had to determine if the Registrar had erred in her assessment of Mr Aragona's capacity to pay.

The Deputy Registrar found that the Registrar had failed to properly consider all relevant information regarding Mr Aragona's financial position. The Registrar had not adequately taken into account certain expenses Mr Aragona was obliged to meet, nor had she fully appreciated the nature of his financial resources. Applying the principles of the *Child Support (Registration and Collection) Act 1988*, the Deputy Registrar concluded that the departure determination was not supported by the evidence and that the Registrar had made an error in her assessment.

Consequently, the Deputy Registrar set aside the Registrar's departure determination and substituted a new decision. This substituted decision meant that the child support payable by Mr Aragona was to be assessed according to the standard formula, rather than the increased amount determined by the Registrar.

Orders