Darwin and Ledger (Child support) - [2022] AATA 3970

Darwin and Ledger (Child support) [2022] AATA 3970 (27 September 2022)

DIVISION:Social Services & Child Support Division
REVIEW NUMBERS:  2020/PC020396 and 2020/PC020474
APPLICANTS:  Ms Darwin and Mr Ledger
OTHER PARTIES:  Child Support Registrar
Mr Ledger and Ms Darwin

TRIBUNAL:Senior Member K Dordevic, Presiding
Senior Member J Longo

DECISION DATE: 27 September 2022
DECISION:

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

· 7 March 2020 to 31 March 2021 Mr Ledger’s annual rate of child support is varied to $14,300 per annum; and
· 1 April 2021 to 31 August 2022 Mr Ledger’s adjusted taxable income is varied to $146,176.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the liable parent – a ground for departure established – decision to depart – 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

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 and their percentages of care of the children. The Act also provides for a departure from the administrative assessment in certain circumstances.
Ms Darwin (the mother) and Mr Ledger (the father) are the parents of two children. This case was first registered with Services Australia – Child Support (the Agency) on 17 September 2010 and was collectable from 6 September 2012. From 27 October 2012 the Agency’s record indicates that the children were in the mother’s 79% care and the father’s 21% care. This arrangement remained unchanged until 24 September 2021, where the Agency’s care record was amended to reflect that the older child went into the father’s sole care on that date. The care register was again amended to reflect that the younger child was in the mother’s sole care from 24 November 2021. The older child’s care change was notified to the Agency on 24 November 2021 and the younger child’s care change was notified on 16 December 2021.
Relevant to this application, the mother lodged a departure application on 7 March 2020.
On 14 August 2020 a senior case officer varied the father’s adjusted taxable income to $154,000 for the period 7 March 2020 to 30 November 2021. On 20 October 2020 the father lodged an objection to that decision. On 4 December 2020 his objection was allowed in part, whereby the father’s adjusted taxable income was varied to $165,000 for the period 1 July 2020 to 30 November 2021.
On 7 December 2020 the mother sought further review with the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal). The father lodged a cross-application on…

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 Darwin and Ledger (Child support)

Details

AGLC: Darwin and Ledger (Child support) [2022] AATA 3970
Case: [2022] AATA 3970
Decision Date: 27 September 2022

CaseChat Overview and Summary

This matter concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth). The applicant, Darwin, sought to depart from the assessed child support amount payable by Ledger, the respondent, on the grounds of Ledger's income, property, and financial resources. The decision reviewed was made by the Registrar.

The primary legal issue before the Tribunal was whether the Registrar's decision to depart from the assessment was justified. This required the Tribunal to consider whether the grounds for departure were established and, if so, whether the departure decision itself was appropriate in all the circumstances.

The Tribunal found that the grounds for departure were established, specifically in relation to Ledger's income, property, and financial resources. The Tribunal then reviewed the Registrar's decision to depart and, finding it to be erroneous, set aside the original decision. The Tribunal substituted its own decision, departing from the assessment.

Orders