Cada and D’Uva (Child support) - [2020] AATA 4926

Cada and D’Uva (Child support) [2020] AATA 4926 (8 October 2020)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2020/SC019678
APPLICANT:  Mr Cada
OTHER PARTIES:  Child Support Registrar
Ms D’Uva

TRIBUNAL:Senior Member R Ellis
DECISION DATE: 8 October 2020
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the estimate of income lodged by Ms D’Uva on 23 April 2020 should be refused.

CATCHWORDS

CHILD SUPPORT – particulars of the administrative assessment – estimate of income - whether the estimated income is less than the amount likely to be the actual income - discretion to refuse should be exercised - 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

This review is about the acceptance of an estimate election used to assess child support in respect of the children [Child 1] and [Child 2].
Mr Cada and Ms D’Uva are the parents of [Child 1] (born May 2007) and [Child 2] (born March 2013) and Mr Cada is the parent liable to pay child support under the assessment.
On 23 April 2020 the Child Support Agency made the decision to accept an income estimate from Ms D’Uva of $31,077 (annualised) to be used in the child support assessment from 23 April 2020 to 30 June 2020.
On 15 May 2020 Mr Cada objected to this decision and on 14 August 2020 the Child Support Agency disallowed the objection (the objection decision).
On 17 August 2020 Mr Cada applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.
The Tribunal conducted a hearing into the application on 8 October 2020. Mr Cada gave evidence on affirmation by conference telephone. On 3 September 2020 the Tribunal wrote to Ms D’Uva advising her of the date and time of the hearing. On 7 October 2020 Ms D’Uva was sent a SMS text reminding her of the details of the hearing. The Tribunal attempted to contact Ms D’Uva on 8 October 2020 as advised but was not successful. Ms D’Uva did not participate in the hearing.
The Child Support Agency provided the Tribunal and the parties with papers relevant to the matter (91 pages). Mr Cada provided additional documents prior to the hearing and these were distributed to the parties (A1-A4).

ISSUES

The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act).
The Child Support Agency makes child support assessments for a child support period using a formula outlined in Part 5 of the Act. The variables in the formula include the adjusted taxable incomes of both parents and ordinarily this is equal to the taxable income and supplementary amounts for the financial year…

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 4926
Decision Date: 8 October 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the dispute between Cada and D’Uva concerning a child support administrative assessment. The applicant, Cada, sought to have the estimated income used in the assessment reviewed.

The Tribunal was required to determine whether the estimated income used in the child support assessment was less than the amount likely to be the actual income of the liable parent. The Tribunal also had to consider whether, in light of this determination, its discretion to refuse the review should be exercised.

Senior Member R Ellis reasoned that the purpose of the Child Support (Registration and Collection) Act 1988 is to ensure that child support assessments accurately reflect the parties' financial circumstances. The Tribunal found that the estimated income was indeed less than the likely actual income, and therefore, it was appropriate to exercise its discretion to review the assessment. The Tribunal set aside the original decision and substituted it with a revised assessment based on a more accurate income estimate.

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