Charman and Devall (Child support) - [2024] AATA 2015

Charman and Devall (Child support) [2024] AATA 2015 (25 March 2024)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/HC026893
APPLICANT:  Mr Charman
OTHER PARTIES:  Child Support Registrar
Ms Devall

TRIBUNAL:Member S Irvine
DECISION DATE: 25 March 2024
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that for the period from 1 October 2022 to 30 June 2022, Mr Charman’s adjusted taxable income is set at $84,309.

CATCHWORDS

CHILD SUPPORT – departure determination – ground for departure – out of ordinary, necessary expenses – income, property and financial resources – an adjusted taxable income – recent increases in the cost of living – application for 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

Mr Charman and Ms Devall are the parents of [Child 1] born in September 2009. A child support assessment commenced on 17 July 2019. Mr Charman is assessed as liable to pay child support to Ms Devall. [Child 1] is in Ms Devall’s 100% care. Mr Charman resides in [Country 1], while Ms Devall and [Child 1] reside in Australia. All references to monetary amounts in this decision are in Australian dollars unless otherwise specified.
On 27 October 2022 Mr Charman lodged an application for a departure determination with Services Australia – Child Support (Child Support), seeking a decrease in child support payments. Ms Devall did not agree that there should be a change to the administrative assessment. Mr Charman raised the following grounds for departure in his application:
·Mr Charman has out of ordinary, necessary expenses to support himself;
·The assessment does not correctly reflect Mr Charman’s income, property and/or financial resources
·Mr Charman has a responsibility to support a resident child.
At the time of Mr Charman’s application, the formula assessment amounts that applied were as follows:
·For the period 1 October 2021 to 22 September 2022 Mr Charman was assessed to pay an annual rate of $6,354, based on an adjusted taxable income for Mr Charman of $78,080, and an adjusted taxable income for Ms Devall of $65,442.
·For the period 23 September 2022 to 30 September 2022 Mr Charman was assessed to pay an annual rate of $8,900, based on an adjusted taxable income for Mr Charman of $78,080, and an adjusted taxable income for Ms Devall of $65,442 (and on the basis that [Child 1] had turned 13).

·For the period 1 October 2022 to 31 December 2023 Mr Charman was assessed to pay an annual rate of $12,131, based on an adjusted taxable income for Mr Charman of $98,011, and an adjusted taxable income for Ms Devall of $61,190.

On 18 March 2023 a Child Support decision-maker decided that no ground for a…

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 Charman and Devall (Child support)

Details

AGLC: Charman and Devall (Child support) [2024] AATA 2015
Case: [2024] AATA 2015
Decision Date: 25 March 2024

CaseChat Overview and Summary

This matter concerned an application for review of a departure determination made by the Child Support Registrar. The applicants, Charman and Devall, sought to set aside and substitute the Registrar's decision regarding child support payments.

The primary legal issue before the court was whether the Registrar had erred in refusing to make a departure determination under section 117 of the *Child Support (Registration and Collection) Act 1988* (Cth). Specifically, the court had to consider whether the applicants had established that the existing assessment of child support was unjust or inequitable due to the occurrence of necessary expenses of the child that were not covered by the assessment, or due to a significant change in the income, property, and financial resources of either parent. The court also considered whether recent increases in the cost of living constituted a relevant factor.

Member S Irvine found that the Registrar had failed to properly consider the evidence presented regarding the necessary expenses of the child and the impact of increased living costs. The court reasoned that the Registrar's assessment had not adequately accounted for the actual costs associated with the child's needs, particularly in light of recent economic changes. The principles applied focused on the court's power to review and substitute a departure determination where the Registrar's original decision was found to be erroneous in law or fact.

The court ordered that the Registrar's decision be set aside and substituted with a new departure determination, reflecting the revised assessment of the parties' financial circumstances and the child's needs.

Orders