Burks and Gowler (Child support) - [2021] AATA 5251

Burks and Gowler (Child support) [2021] AATA 5251 (12 July 2021)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2021/MC020899
APPLICANT:  Mr Burks
OTHER PARTIES:  Child Support Registrar
Ms Gowler

TRIBUNAL:Member F Staden
DECISION DATE: 12 July 2021
DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the liable parent – a ground for departure established – decision not to depart - decision under review affirmed

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 Burks and Ms Gowler are the separated parents of three children, [Child 1] and [Child 2], born 2001, and [Child 3], born 2004 (the children). A child support assessment for this case was first registered from 20 November 2006.
At the relevant times, [Child 1] and [Child 3] were in the equally shared care of Mr Burks and Ms Gowler and [Child 2] was in the greater than primary care (100%) of Ms Gowler. The assessment for [Child 1] and [Child 2] ended from 7 October 2019.
Ms Gowler is currently the parent liable to pay child support but has previously been the receiving parent. Ms Gowler opted for collection of child support by Services Australia – Child Support (Child Support) from 17 April 2009 and Mr Burks from 1 November 2013.
There have been five previous change of assessment decisions in this case. None were in place in the period relevant to the decision under review.
The initial assessment for the child support period 1 December 2018 to 29 February 2020 was that Ms Gowler was the parent liable to pay child support with her liability calculated based on her 2017/18 adjusted taxable income of $54,413 and Mr Burks’ provisional adjusted taxable income of $26,413.
Following his 2017/18 income tax assessment, on 8 June 2019 Mr Burks’ 2017/18 adjusted taxable income was found to be $566,734. On that day, Child Support issued, relevantly here, a new assessment for the period 1 December 2018 to 6 October 2019 under which Mr Burks was liable to pay child support with his annual liability of $32,113 calculated based on his 2017/18 adjusted taxable income of $566,734 and Ms Gowler’s 2017/18 adjusted taxable income of $54,413.
On 8 June 2019, Child Support informed Mr Burks of the revised calculation of his child support liability for the period 1 December 2018 to 6 October 2019, noting he now owed Ms Gowler child support arrears of $16,056.48. On 13 June 2019, Child Support garnisheed $16,056.48 from Mr Burks’ 2017/18 income tax refund of $47,804.15.
On 1 July 2019, Mr Burks applied for a change of assessment in relation to 2018/19 on the basis that the child support assessment did not correctly reflect his income,…

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 Burks and Gowler (Child support)

Details

AGLC: Burks and Gowler (Child support) [2021] AATA 5251
Case: [2021] AATA 5251
Decision Date: 12 July 2021

CaseChat Overview and Summary

This matter concerned an application for review of a departure determination made by the Registrar of the Child Support Agency. The applicants, Burks and Gowler, sought to challenge the Registrar's decision not to depart from the administrative assessment of child support payable by the liable parent.

The primary legal issue before the court was whether the Registrar had erred in law by failing to depart from the child support assessment, despite finding that a ground for departure was established. Specifically, the court was required to consider whether the Registrar's discretion to depart was exercised reasonably and in accordance with the relevant provisions of the *Child Support (Registration and Collection) Act 1988*.

The court affirmed the Registrar's decision, finding that while a ground for departure was established, the Registrar had properly considered all relevant factors, including the income, property, and financial resources of the liable parent, and had concluded that it would not be just and equitable to depart from the assessment. The court applied the principles of administrative law, emphasizing that a discretionary power must be exercised according to law and that the Registrar's decision was not demonstrably unreasonable or based on an error of law.

Orders