Devoe and Devoe (Child support) - [2021] AATA 697

Devoe and Devoe (Child support) [2021] AATA 697 (4 February 2021)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2020/MC019668
APPLICANT:  Mr Devoe
OTHER PARTIES:  Child Support Registrar
Ms Devoe

TRIBUNAL:Member Y Webb
DECISION DATE: 04 February 2021
DECISION:

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

The previous departure determination of 24 January 2019 is ended on 30 April 2020; and
for the period 1 May 2020 until a terminating event occurs in relation to both of the children’s entitlements to child support, Mr Devoe’s adjusted taxable income is varied to $100,000 per annum.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of both parents – reduction in income due to ill health – 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 omitted 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 review relates to the issue of child support regarding the children of Mr Devoe and Ms Devoe. The children are aged 17 and 15. According to Services Australia’s (Child Support Agency) records the children are in the 62% care of Ms Devoe and the 38% care of Mr Devoe.
The child support case was registered with the Child Support Agency in June 2012 and has been collectable by the Agency since November 2012.
On 22 April 2020, Mr Devoe applied to the Child Support Agency for a change to the administrative assessment on the basis of Reason 8A.
At the time of Mr Devoe’s application for a change to the assessment a previous change of assessment decision was still in place; that was a decision of an objections officer made on 24 January 2019. That decision varied Mr Devoe’s adjusted taxable income to $200,870 per annum from 16 August 2018 to 14 November 2018; varied his adjusted taxable income to the minimum rate between 15 November 2018 and 15 February 2019; and varied his adjusted taxable income to $200,870 per annum from 16 February 2019 to16 August 2021. (The decision also varied Ms Devoe’s adjusted taxable income to $34,812 for the period 16 August 2018 to 31 October 2019.)
On 6 May 2020, a Child Support Agency officer decided that no Reason had been established and therefore the application was refused. Mr Devoe objected to that decision but on 28 July 2020 his objection was disallowed, the objections officer finding that no Reason had been established. The assessment therefore reverted to the decision made on 24 January 2019.
On 14 August 2020 Mr Devoe requested review by the Administrative Appeals Tribunal (the Tribunal).
A telephone directions hearing was conducted with both parents on 29 October 2020.
Mr Devoe and Ms Devoe attended the hearing by way of a telephone conference on 4 February 2021.…

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: [2021] AATA 697
Decision Date: 4 February 2021

CaseChat Overview and Summary

This matter concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth) brought by the father, Mr. Devoe, against the mother, Ms. Devoe. The dispute centred on the father's child support assessment, which he sought to have varied due to a significant reduction in his income caused by ill health. The matter came before Member Y Webb of the Child Support Special Powers Division.

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*, on the grounds that the father's reduced income due to ill health was a "special circumstance" that rendered the assessment unjust and inequitable. The court was required to consider the income, property, and financial resources of both parents in determining whether to grant the departure.

Member Webb reasoned that the father's ill health had resulted in a substantial and ongoing reduction in his earning capacity, which constituted a special circumstance. The court applied the principles of fairness and equity inherent in the child support legislation, acknowledging that a parent's ability to earn income can be significantly impacted by unforeseen health issues. Having found that the father's reduced income was a special circumstance, the court determined that the existing assessment was indeed unjust and inequitable.

The court set aside the original child support assessment and substituted a new assessment that reflected the father's reduced income due to his ill health.

Orders