Faithfull and Welliver (Child support) - [2023] AATA 3740

Faithfull and Welliver (Child support) [2023] AATA 3740 (21 September 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2022/MC024879
APPLICANT:  Ms Faithfull
OTHER PARTIES:  Child Support Registrar
Mr Welliver

TRIBUNAL:Member M Martellotta
DECISION DATE: 21 September 2023
DECISION:

The Tribunal sets aside the decision under review and, in substitution to depart from the administrative assessment so that for the periods:

13 May 2022 to 31 July 2022, the second party’s adjusted taxable income is varied to $83,678.
1 August 2022 to 4 May 2023 the second party’s adjusted taxable income is varied to $69,000.

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

This review concerns a decision made by Services Australia – Child Support (Child Support) to depart from an administrative assessment of child support.
The applicant and second party are the parents of one child.[1] The child resides with the applicant in [Country 1]. The current case commenced on 28 April 2022.
[1] Born 13/12/2018.
On 13 May 2022 the applicant lodged a change of assessment application on the ground of Reasons 8A (income, property, financial resources of the second party). At the time of her application, according to Child Support records, the following relevant administrative assessment was in place:
·From 1 September 2021 to 30 November 2022 the second party was assessed to pay child support at an annual rate of $906 based on his 2020/21 adjusted taxable income of $36,388 and the applicant’s 2020/21 adjusted taxable income (ATI) of $21,708.
On 3 August 2022 a Child Support senior decision maker decided that grounds to depart from the administrative assessment had been established. They varied the administrative assessment in the following terms:
·For the period 13 May 2022 to 31 December 2023 the second party’s ATI is varied to $84,000.
The second party objected to the decision. His objection was partly allowed and a new decision was made in the following terms:
For the periods:
·13 May 2022 to 3 July 2022, the second party’s ATI is varied to $84,000.
·4 July 2022 to 5 August 2022 the second party’s ATI is varied to $70,000.
·6 August 2022 to 30 November 2022 the second party’s ATI is varied to $22,750.
The Tribunal convened two direction hearings prior to the hearing. These dealt with procedural matters. The hearing was held on 13 July 2023. Both parties participated at the hearing by telephone, and each provided submission and evidence. The Tribunal decided to reconvene the hearing on 21 September 2023 to take further evidence to clarify information provided by…

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: [2023] AATA 3740
Decision Date: 21 September 2023

CaseChat Overview and Summary

The matter of *Faithfull and Welliver* concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth). The applicant sought to depart from the ordinarily assessed rate of child support payable by the respondent. The case was heard by M Martellotta M.

The primary legal issue before the Court was whether the respondent's income, property, and financial resources constituted a ground for departure from the child support assessment. Specifically, the Court had to determine if the respondent possessed income, property, or financial resources that were not taken into account in the assessment and that would result in the assessment being unjust or inequitable.

The Court found that a ground for departure was established. The reasoning focused on the respondent's financial position, which was found to be significantly different from that which would be assumed under a standard assessment. The Court applied the principles of the *Child Support (Registration and Collection) Act 1988* concerning departure from assessments, considering the overall financial circumstances of the respondent.

The decision to depart from the assessment was made. The Court set aside the original decision and substituted its own determination.

Orders