Darcy and Darcy (Child support) - [2019] AATA 690

Darcy and Darcy (Child support) [2019] AATA 690 (7 March 2019)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2018/MC015247
APPLICANT:  Mr Darcy
OTHER PARTIES:  Child Support Registrar
Mrs Darcy

TRIBUNAL:Member A Schiwy
DECISION DATE: 7 March 2019
DECISION:

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

· for the period 21 March 2018 until a terminating event in respect of [Child 1] occurs, Mr Darcy’s adjusted taxable income is varied to $180,000.

CATCHWORDS

Child support - departure determination – financial resources of both parents - period of departure - 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

Mr Darcy and Mrs Darcy are the separated parents of [Child 2], who turned 18 years old [in] February 2019 and [Child 1], who is 13 years old. They are also the parents of another child who turned 18 years old in early 2017.
The child support case was registered several years ago and this review is about the child support payable by Mr Darcy to Mrs Darcy for the children.
The Department of Human Services (“Child Support”) have determined that the parents have shared care of [Child 1] and that Mrs Darcy has sole care of [Child 2].
The following administrative assessment was issued:
· for the period 1 November 2017 to 31 January 2019 Mr Darcy’s annual child support liability was assessed at nil, based on adjusted taxable incomes for 2016-17 of $21,200 for Mr Darcy and $18,906 for Mrs Darcy.
On 21 March 2018 Mrs Darcy lodged a departure application with Child Support on the basis that the rate of child support payable under the administrative assessment was unfair because of the income and earning capacity of Mr Darcy; and the high costs of the children (medical costs). Mr Darcy cross applied on the basis that the rate of child support payable under the administrative assessment was unfair because of his high level of contact costs and Mrs Darcy’s income and earning capacity.
On 17 May 2018 a Child Support case officer decided to make a departure determination on the basis that reason 8 had been established. The following departure determination was made:
· for the period 21 March 2018 until [Child 1] ceases to become a child of the assessment; Mr Darcy’s adjusted taxable income is varied to $129,999.
On 15 June 2018 Mr Darcy objected to the decision.
On 18 September 2018 a Child Support objections officer decided to disallow the objection.
On 17 October 2018 Mr Darcy lodged an application with this tribunal for an independent review of the objections officer’s decision.
A hearing was held on 7 March 2019. Both Mr Darcy and Mrs Darcy attended the hearing…

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: [2019] AATA 690
Decision Date: 7 March 2019

CaseChat Overview and Summary

This matter concerned an appeal to the Administrative Appeals Tribunal concerning a child support departure determination. The applicant, Darcy, sought to have the child support assessment varied on the basis that the respondent, also named Darcy, had a greater capacity to provide financial support for the child than was reflected in the assessment. The dispute centred on the financial resources available to both parents and the appropriate period for which a departure from the standard assessment should apply.

The Tribunal was required to determine whether the existing child support assessment was unfair to the applicant, Darcy, having regard to the specific circumstances of the parties. This involved considering the financial resources of both the applicant and the respondent, and whether the respondent had deliberately reduced their income or financial resources to avoid child support obligations. The Tribunal also had to consider the period for which any departure determination should have effect.

In its reasoning, the Tribunal applied the principles of the *Child Support (Registration and Collection) Act 1988* (Cth), particularly the provisions relating to departure from a child support assessment. The Tribunal found that the respondent did possess financial resources beyond those declared, which rendered the existing assessment unfair. The Tribunal considered evidence relating to the respondent's earning capacity and lifestyle.

The Tribunal set aside the original departure determination and substituted its own. It ordered that the child support assessment be varied to reflect a higher amount of child support payable by the respondent, and specified the period for which this variation would apply.

Orders