Barkworth and Barkworth (Child support) - [2024] AATA 3584

Barkworth and Barkworth (Child support) [2024] AATA 3584 (2 August 2024)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2024/AC027533
APPLICANT:  Mr Barkworth
OTHER PARTIES:  Child Support Registrar
Ms Barkworth

TRIBUNAL:Member S Hoffman
DECISION DATE: 2 August 2024
DECISION:

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

Mr Barkworth’s adjusted taxable income is varied as follows:
oFrom 1 March 2023 to 30 June 2023, to $103,000
oFrom 1 July 2023 to 31 December 2024, to $105,000
Ms Barkworth’s adjusted taxable income is varied as follows:
oFrom 1 March 2023 to 30 June 2023, to $34,373
oFrom 1 July 2023 to 31 December 2024, to $25,000
The annual rate of child support payable by the father is increased as follows:
oFor the period 1 March 2023 to 31 December 2023, by $940
oFor the period 1 January 2024 to 31 December 2024, by $968
oFor the period 1 January 2025 to 31 December 2025, by $997
oFor the period 1 January 2026 to 31 December 2026, by $1,035
oFor the period 1 January 2027 to 31 December 2027, by $1,066.

CATCHWORDS
CHILD SUPPORT – departure determination – ground for departure – income, property and financial resources – just and equitable – date of determination – 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 child support case relevant to this review was registered with Services Australia – Child Support (Child Support) on 10 December 2015. Child Support has been involved with the collection of child support since 19 April 2023.
The father pays child support to the mother for the two children, [Child 1] and [Child 2], aged eight and six respectively.
For the period 16 March 2023 to 31 August 2023, the father was assessed to pay the minimum annual rate of child support of $459 a year, based on his adjusted taxable income of $16,404 for 2021-22 and the mother’s adjusted taxable income of $22,451 for 2021-22.
On 2 April 2023, the mother applied for a change of assessment (COA). At the time the mother had 100% care of both children.
An original decision was made on 7 July 2023, as follows:
· For the period 2 April 2023 to 31 October 2024, the father’s adjusted taxable income is varied to $107,000.

· For the period 21 August 2023 to 31 December 2024, the annual rate of child support otherwise payable is increased by the sum of 50% of the costs of tuition fees, capital development levy and school card less any relevant school card discount.

On 26 July 2023, the father objected to the original decision.
On 2 February 2024, an objections officer from Child Support set aside the original…

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: [2024] AATA 3584
Decision Date: 2 August 2024

CaseChat Overview and Summary

This matter concerned an application by the mother for a departure determination regarding child support payable by the father. The dispute centred on whether the administrative assessment of child support was unjust and inequitable due to the father's income, property, and financial resources. The decision was made by Member S Hoffman of the Tribunal.

The primary legal issue before the Tribunal was to determine if a ground for departure existed under subparagraph 117(2)(c)(ia) of the Act. This ground is established if, in the special circumstances of the case, the administrative assessment of child support would result in an unjust and inequitable determination due to the income, property, and financial resources of either parent. The Tribunal also considered the parties' stated desires for a fair outcome and their willingness to forgo pursuing certain issues raised during the process.

The Tribunal's reasoning focused on assessing the father's income. It noted the father's taxable income for previous financial years and his commencement of employment as a [Occupation 1] in January 2023. Based on a payslip covering January to June 2023, the Tribunal calculated an annual equivalent gross pay of $110,580, which it adjusted to $103,000 after allowing for deductions. For the 2023-24 financial year, a further payslip indicated an annual gross pay of $112,768, which the Tribunal estimated as $105,000 after deductions. The Tribunal acknowledged the father's statement about having a second child support case and deductions from his pay exceeding the assessed liability, but noted it could not confirm the exact mechanism for arrears payments from the provided documentation.

The Tribunal determined that the father's income for child support purposes was adequately reflected by $103,000 for the period from 11 January 2023 to 30 June 2023, and $105,000 for the 2023-24 financial year. The decision under review was set aside and substituted with a new determination based on these income figures.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal asked the mother what she thought about this. She said she wanted a decision that was fair and if she was entitled to arrears of child support, then she wanted those paid. The father also said that over $700 was taken from his pay every fortnight but only about $600 was paid to the mother. The father said he has a second child support case for which he also pays child support. This is consistent with information in the Child Support documents. The Tribunal observes that currently the father’s fortnightly child support liability for this case is $621.25 and that $683.86 was credited to him on 15 July 2024 which suggests that an extra amount is being deducted from his pay to be put towards his arrears.[2] The Tribunal cannot tell with any certainty from the documents if this is the case. If the father wants to follow this up, he should do so with Child Support.[2] Page 484 of the Child Support documents. The Tribunal also notes that each of the parents raised certain issues in the relation to the other in writing and at the hearing but said they did not want to pursue these. The Tribunal will note some of these briefly in these Reasons for Decision for the record. The Tribunal would also acknowledge that it appreciated each of the parents clarifying what the main concerns were and that they both said they were not interested in pursuing some of the other issues that had been raised during the COA process and in documents they provided to the AAT. These Reasons have been written accordingly. Subparagraph 117(2)(c)(ia) of the Act provides a ground for departure exists where, in the special circumstances of the case, the administrative assessment of child support would result in an unjust and inequitable determination of the rate of child support because of the income, property and financial resources of either parent. According to Child Support records, the father’s taxable income was $21,557 for 2020-21, $16,404 for 2021-22 and $54,498 for 2022-23. The father said he was unemployed until January 2023 when he started work as a [Occupation 1] for [Company 1]. The father still works for them. Based on a payslip that covered the period 11 January 2023 to 30 June 2023 (171 days), the father’s gross pay was $51,806. As just noted, his taxable income for 2022-23 based on Australian Taxation Office (ATO) records was $54,498. Child Support ascertained that he was paid $9,392 in income support payments during 2022-23. That suggests that the father also claimed allowable deductions of $6,700 ($51,806 + $9,392 = $61,198 - $54,498). The annual equivalent of the father’s pay as a [Occupation 1] during 2022-23 was $110,580 ($51,806 / 171 = $302.96 x 365). Allowing, say, $7,580 as deductions results in annual pay of $103,000. In relation to 2023-24, the father’s payslip recorded his annual gross pay to be $112,768. Allowing the same amount as for the previous year for deductions results in an income of $105,188; say, $105,000. The Tribunal considers that $103,000 adequately reflects the father’s income for child support purposes from 11 January 2023 to 30 June 2023, and that $105,000 reflects his income for the 2023-24 financial year.

Ratio Decidendi

Legal Principle Established

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