Archer and Merval (Child support) - [2020] AATA 575

Archer and Merval (Child support) [2020] AATA 575 (15 January 2020)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2019/MC016511
APPLICANT:  Ms Archer
OTHER PARTIES:  Child Support Registrar
Mr Merval

TRIBUNAL:Member P Noonan
DECISION DATE: 15 January 2020
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides for the period 3 November 2018 to 31 December 2022 Mr Merval’s adjusted taxable income is varied to a default income of two-thirds of the annualised male total average weekly earnings figure for each applicable calendar year adjusted from 1 January 2019 and on 1 January of each year thereafter.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the liable parent – parent refused to disclose financial details – failure to comply with directions - 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 Merval and Ms Archer are the parents of three children who are currently relevant to the child support assessment.
The Child Support (Assessment) Act 1989 (“the Act”) provides for an administrative assessment of the child support payable. It uses a formula, which contains variables such as the parents’ adjusted taxable incomes and their percentages of care of the children. The Act also provides for a departure from the administrative assessment in certain circumstances.
A child support case was first registered with the Department of Human Services (the Department) [in] November 2014 and child support has been registered for collection by the Department from [June] 2015. The Department currently maintains a case completion date for this matter of 30 October 2027.
[In] September 2018 Ms Archer applied for a departure from the assessment of child support payable. Prior to 1 October 2018 a previous change of assessment decision was in place which resulted in the annual rate of child support payable by Mr Merval being $5,200. Care of the children at the time of the application for a departure was registered as being 365 nights per year to Mr Merval for the eldest child and 365 nights a year to Ms Archer in respect to the two younger children. Ms Archer also has a younger dependent child who is not a child of this assessment. Relevant administrative assessments of child support payable are as follows:
· From 1 October 2018 to 2 November 2018, Mr Merval was assessed to pay an annual rate of child support of $7,125. This assessment was based on a default income equal to two-thirds of the annualised male total average weekly earnings (MTAWE) of $48,308 for Mr Merval and a 2016-17 adjusted taxable income of $17,261 for Ms Archer.
· From 3 November 2018 to 20 November 2018, Mr Merval was assessed to…

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 Archer and Merval (Child support)

Details

AGLC: Archer and Merval (Child support) [2020] AATA 575
Case: [2020] AATA 575
Decision Date: 15 January 2020

CaseChat Overview and Summary

This matter concerned an appeal to the Federal Circuit Court of Australia regarding a departure determination made by the Registrar of the Child Support Registrar. The appeal was brought by the liable parent, Mr Archer, against the decision to depart from the formula assessment of child support payable to the payee parent, Ms Merval. The core of the dispute revolved around Mr Archer's refusal to disclose his financial details and his failure to comply with directions issued by the Registrar.

The primary legal issue before the Court was whether the Registrar had erred in making a departure determination in the absence of full financial disclosure from the liable parent. Specifically, the Court had to consider the extent to which a departure determination could be made based on inferred or presumed financial resources when a party deliberately withheld information, and whether such a determination was just and equitable. The Court also considered the implications of the liable parent's non-compliance with procedural directions on the fairness and validity of the departure determination.

The Court found that while the Registrar has the power to make a departure determination based on available information, including inferences drawn from a party's failure to disclose, this power must be exercised judiciously. The Court noted that the Registrar's decision was based on an assumption that Mr Archer had undisclosed income and financial resources, which was a consequence of his deliberate refusal to provide information. However, the Court determined that the Registrar had not adequately considered alternative approaches or the potential prejudice caused by the lack of full disclosure, particularly in relation to the specific needs of the child. The Court concluded that the departure determination was not sufficiently supported by the evidence and the reasoning was flawed.

The Court set aside the Registrar's departure determination and substituted its own decision. The Court ordered that the child support assessment revert to the formula assessment, effectively dismissing the application for a departure determination.

Orders