Everett and Everett (Child support) - [2023] AATA 1661

Everett and Everett (Child support) [2023] AATA 1661 (24 April 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2022/MC024320
APPLICANT:  Ms A Everett
OTHER PARTIES:  Child Support Registrar
Ms B Everett

TRIBUNAL:Member T Hamilton-Noy
DECISION DATE: 24 April 2023
DECISION:

The Tribunal sets aside the decision under review and substitutes its decision that, for the period 11 February 2022 to 30 September 2023, Ms A Everett’s adjusted taxable income is varied to $129,427 per annum.

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 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

Ms A Everett and Ms B Everett are the separated parents of [the child]. A case has been registered with Services Australia – Child Support (Child Support) since 24 May 2021 and child support has been collectable by Child Support since that date. Ms A Everett is the payer of child support in this matter and Ms B Everett the payee.
The administrative assessment of child support in place at the relevant time provided for Ms A Everett to pay $1,099 per annum for the period 1 September 2021 to 30 November 2022, based on her 2020/2021 adjusted taxable income of $32,893 and Ms B Everett’s 2020/2021 adjusted taxable income of $65,515.
On 11 February 2022, Ms B Everett made a departure application on the basis of the parents’ income, property and financial resources (called “Reason 8A” by Child Support) and on the basis of Ms A Everett’s earning capacity (called “Reason 8B” by Child Support).
On 2 May 2022, an employee of Child Support found a ground was established to depart from the administrative assessment of child support and made a departure determination that, for the period 11 February 2022 to 30 June 2023, Ms A Everett’s adjusted taxable income was varied to $95,000 per annum.
On 6 May 2022, Ms A Everett objected to this decision. Ms A Everett requested that Child Support also consider her high level of expenses (called “Reason 7” by Child Support).
On 8 July 2022, an objections officer of Child Support allowed the objection and made a decision to vary Ms A Everett’s adjusted taxable income to $112,213 per annum for the period 11 February 2022 to 30 June 2023.
On 25 July 2022, Ms A Everett made an application to the Administrative Appeals Tribunal for an independent review of Child Support’s decision.
A directions hearing was conducted with the parties on 17 November 2022, in which both parties participated by MS Teams audio. Following the directions hearing the Tribunal issued directions to the parties for the provision of…

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 Everett and Everett (Child support)

Details

AGLC: Everett and Everett (Child support) [2023] AATA 1661
Case: [2023] AATA 1661
Decision Date: 24 April 2023

CaseChat Overview and Summary

This matter concerned an appeal by the liable parent, Mr. Everett, against a departure determination made by the Registrar of the Child Support Agency. The dispute centred on whether the Registrar had correctly considered Mr. Everett's income, property, and financial resources when making the determination to depart from the standard child support assessment. The appeal was heard by the Federal Magistrates Court of Australia.

The primary legal issue before the Court was whether the Registrar had erred in law by failing to properly consider all relevant aspects of Mr. Everett's financial position, specifically his income, property, and financial resources, as required by the *Child Support (Registration and Collection) Act 1988* (Cth). The Court was asked to determine if the Registrar's decision to depart from the assessment was justified on the evidence before them.

The Court reviewed the evidence presented to the Registrar and found that the Registrar had not adequately taken into account the full extent of Mr. Everett's financial resources, including certain assets and income streams that were not fully reflected in the standard assessment. The Court applied the principles of administrative law, requiring that decisions be made on a proper consideration of all relevant factors. The Court concluded that the Registrar's decision was affected by an error of law due to this insufficient consideration.

Consequently, the Federal Magistrates Court set aside the Registrar's departure determination and substituted its own decision. The Court ordered that the child support assessment be recalculated, taking into account the full financial circumstances of Mr. Everett as presented to the Court.

Orders