Caden and Pagani (Child support) - [2018] AATA 4422

Caden and Pagani (Child support) [2018] AATA 4422 (13 August 2018)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2017/MC012899
APPLICANT:  Mr Caden
OTHER PARTIES:  Child Support Registrar
Miss Pagani

TRIBUNAL:Member S Lewis
DECISION DATE: 13 August 2018
DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that:

For the period 17 May 2017 to 29 February 2020, Mr Caden’s adjusted taxable income is varied to $88,000.

CATCHWORDS
CHILD SUPPORT – Departure determination – Income, property and financial resources of a parent from operation of a business – 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

This application for review has been brought by Mr Caden who disagrees with a decision made by the Department of Human Services, Child Support (the Department) to depart from the administrative assessment of child support.
Mr Caden and Miss Pagani are the parents of the child, [Child 1] (born January 2014). The Department records that Miss Pagani currently has 86% care of the child and Mr Caden has 14%. Mr Caden is the parent liable to pay child support.
On 17 May 2017 Miss Pagani applied to the Department for an increase to the assessed rate of child support on the ground that in the special circumstances of this case:
·       the costs of maintaining the child are significantly affected by his special needs;
·       the costs of maintaining the child are significantly affected by the costs of educating the child in the manner that was expected by the parents; and
·       the administrative assessment results in an unjust and inequitable level of child support because of Mr Caden’s income, property, financial resources and earning capacity.
At the time of the application, Mr Caden was assessed to pay an annual rate of child support of $0.
On 9 August 2017, a senior case officer, acting as a delegate of the Child Support Registrar, considered the departure application and determined that:
·       For the period 1 July 2017 to 31 August 2017, Mr Caden’s adjusted taxable income is varied to $90,000;
·       For the period 1 September 2017 to 30 November 2018, Mr Caden’s adjusted taxable income is varied to $91,890; and
·       For the period 1 December 2018 to 29 February 2020, Mr Caden’s adjusted taxable income is varied to $93,820.
On 18 September 2017, Mr Caden objected to this decision. On 20 September 2017, Miss Pagani also objected. Mr Caden’s objection was partly allowed by an objections officer on 7 November 2017. The objections officer determined that for the period 17 May 2017 to 30 June 2020 Mr Caden’s adjusted taxable income is varied to $174,000. This resulted in an annual rate of child support payable of…

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: [2018] AATA 4422
Decision Date: 13 August 2018

CaseChat Overview and Summary

The case of Caden and Pagani concerned a child support departure determination. The applicant, Caden, sought to have the child support assessment varied on the grounds that the respondent, Pagani, possessed income, property, and financial resources derived from the operation of a business that were not being adequately reflected in the current assessment. The matter came before the court for review of a previous decision.

The primary legal issue before the court was whether the existing child support assessment should be departed from, pursuant to section 117 of the *Child Support (Registration and Collection) Act 1988* (Cth). This required the court to determine if Pagani's actual financial circumstances, particularly those arising from their business, were such that the assessment did not make proper and adequate provision for the child.

The court considered the evidence relating to Pagani's business income and financial resources. It applied the principles of child support law, which require an assessment to reflect a parent's capacity to pay, including income from all sources. The court found that the previous assessment had not adequately accounted for the full extent of Pagani's financial capacity. Consequently, the court set aside the previous decision and substituted its own determination.

Orders