Essendon and Foley (Child support) - [2018] AATA 4653

Essendon and Foley (Child support) [2018] AATA 4653 (20 November 2018)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2018/SC014539
APPLICANT:  Miss Essendon
OTHER PARTIES:  Child Support Registrar
Mr Foley

TRIBUNAL:Member W Kennedy
DECISION DATE: 20 November 2018
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides to set Mr Foley’s adjusted taxable income at $162,579.00 for the period from 12 December 2017 until a terminating event.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of parents – no earning capacity – ground for departure established – 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

This decision concerns an application for a departure from the formula assessment of child support. Miss Essendon and Mr Foley are the parents of [Child 1] who was born in June 2003. There has been a child support assessment in place for [Child 1] made by the Child Support Agency of the Department of Human Services (the Department) since 9 May 2005. The assessment is based on Miss Essendon having a care percentage of 100%.
When Miss Essendon applied to the Department, the annual rate of child support payable by Mr Foley to Miss Essendon was $5,751.00. This was for the period from 1 February 2017 to 8 March 2018 and was based on Mr Foley’s adjusted taxable income (ATI) of $49,159.00 and Miss Essendon’s ATI of $22,766.00.
On 12 December 2017 Miss Essendon applied to the Department for a departure from the assessment based on Reason 8A, being the income, property and financial resources of one or both of the parents, and Reason 8B, being the earning capacity of one or both of the parents. In her application Miss Essendon stated her belief that Mr Foley’s income was greater than he had disclosed.
On 16 March 2018 a delegate of the Child Support Registrar considered the departure application and decided that Reason 8A had been established but that Reason 8B had not been established. The delegate decided to set Mr Foley’s ATI at:
·       $65,820.00 for 12 Dec 2017 to 11 Dec 2018;
·       $67,202.00 for 12 Dec 2018 to 11 Dec 2019;
·       $68,613.00 for 12 Dec 2019 to 11 Dec 2020;
·       $70,054.00 for 12 Dec 2020 to a terminating event.
On 22 April 2018 Miss Essendon lodged an objection to that decision, claiming that a number of errors of fact had been made in the delegate’s decision. On 21 June 2018 a Department objections officer considered Miss Essendon’s objection and found that Reason 8A had been established but that Reason 8B had not been established. The objections officer decided to disallow Miss Essendon’s objection and to affirm the decision of the…

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: [2018] AATA 4653
Decision Date: 20 November 2018

CaseChat Overview and Summary

The matter of *Essendon and Foley* concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth). The applicant, Essendon, sought to have the assessed child support payable to Foley varied, arguing that Foley had no earning capacity. The decision was made by W Kennedy M.

The primary legal issue before the Court was whether the ground for departure, specifically the lack of earning capacity of the liable parent, was established. This required the Court to consider the provisions of the *Child Support (Registration and Collection) Act 1988* relating to departure determinations and the assessment of a parent's income, property, and financial resources.

The Court found that the ground for departure was established. The reasoning focused on the fact that Foley had no earning capacity, which is a recognised ground for departure under the Act. Having established this ground, the Court was empowered to set aside the existing assessment and substitute a new one.

The Court set aside the previous departure determination and substituted its own orders, reflecting the finding that the ground for departure had been made out due to the applicant's lack of earning capacity.

Orders