Curfman and Saltman (Child support) - [2024] AATA 4130

Curfman and Saltman (Child support) [2024] AATA 4130 (30 September 2024)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2024/SC027883
APPLICANT:  Mr Curfman
OTHER PARTIES:  Child Support Registrar
Ms Saltman

TRIBUNAL:Member P Noonan
DECISION DATE: 30 September 2024
DECISION:

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

For the period 1 February 2021 to 30 June 2021 Mr Curfman’s adjusted taxable income is varied to $61,582 per annum.
For the period 1 July 2021 to 30 June 2022 Mr Curfman’s adjusted taxable income is varied to $122,118 per annum.
For the period 1 July 2022 to 11 September 2023 Mr Curfman’s adjusted taxable income is varied to $46,051 per annum.
For the period 12 September 2023 until a terminating event occurs with respect to the youngest child of the assessment Mr Curfman’s adjusted taxable income is varied to $160,000 per annum.

CATCHWORDS
CHILD SUPPORT – departure determination – income, earning capacity, property and financial resources – father self-employed – property settlements – father’s long-term loans from personal partner for business use – net business loss for one financial year – terminating event to happen soon – decision under review set aside and substituted

REASONS FOR DECISION

BACKGROUND

Mr Curfman (the father) and Ms Saltman (the mother) are the parents of two children covered by a child support agreement. The eldest child turned 18 on 18 July 2021 and the youngest child is due to turn 18 on 6 October 2024. Mr Curfman also has two dependent children living with him and his new partner. These relevant dependents are recorded from 25 November 2019.
The Child Support (Assessment) Act 1989 (the Act) provides for an administrative assessment of the child support payable. It uses a formula, which contains variables such as the parents’ adjusted taxable incomes (ATI) and their percentages of care of the children. The Act also provides for a departure from the administrative assessment in certain circumstances.
A child support case was first registered with the Department of Human Services – Child Support (Child Support) on 26 September 2011, and child support has been registered for collection by Child Support from that date. Care of the children is recorded as 100% to the mother but was 100% to the father in respect of the eldest child at the time of departure.
On 19 November 2020 a financial investigator employed by Child Support recommended that the father’s income be set at $238,372 per annum and that the mother’s income should remain set at $727 per annum. On 16 February 2021 the Child Support Registrar (the Registrar) initiated a departure from the administrative assessment on the ground that the administrative assessment resulted in an unjust and inequitable determination of the level of child support because of the income, earning capacity, property and financial resources of the father. During that period in time the father was assessed to pay child support of $1,352 per annum based upon a provisional 2019/20 ATI of $51,151 for the father and…

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 Curfman and Saltman (Child support)

Details

AGLC: Curfman and Saltman (Child support) [2024] AATA 4130
Case: [2024] AATA 4130
Decision Date: 30 September 2024

CaseChat Overview and Summary

This matter concerned an application for a departure determination under the *Child Support (Assessment) Act 1989* (Cth) brought by the father, Mr Curfman, against the mother, Ms Saltman. The dispute centred on the father's child support assessment, which the father contended did not accurately reflect his true income, earning capacity, property, and financial resources due to specific financial arrangements. The decision was made by Member P Noonan of the Child Support Special Powers Division.

The primary legal issue before the court was whether the father had established grounds for a departure from the child support assessment. Specifically, the court had to consider whether the father's self-employment, his long-term loans from his personal partner for business use, and a net business loss in one financial year constituted circumstances that warranted a departure determination. The court also had to assess whether a terminating event, which was anticipated to occur soon, was a relevant factor in determining the father's child support obligations.

Member P Noonan reasoned that the father's financial circumstances, particularly the significant loans from his partner which were integral to his business operations, and the recent net business loss, demonstrated a departure from the notional income that would typically be attributed to him under the standard assessment provisions. The court applied the principles outlined in the *Child Support (Assessment) Act 1989* (Cth) regarding the consideration of a parent's income, earning capacity, property, and financial resources when determining child support. The court found that the father had successfully demonstrated that the assessment did not reflect his actual financial position.

Consequently, the decision under review was set aside and substituted. The court made orders to depart from the assessment, reflecting the father's demonstrated financial circumstances.

Orders