Fereday and Waterfield (Child support) - [2019] AATA 1223

Fereday and Waterfield (Child support) [2019] AATA 1223 (1 April 2019)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2018/BC015357
APPLICANT:  Ms Fereday
OTHER PARTIES:  Child Support Registrar
Mr Waterfield

TRIBUNAL:Senior Member A Freeman
DECISION DATE: 01 April 2019
DECISION:

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

·         For the period from 1 January 2018 to 30 June 2018, Mr Waterfield’s adjusted taxable income is varied to $165,902 per annum;
·         For the period from 1 July 2018 to 31 December 2020, Mr Waterfield’s adjusted taxable income is varied to $143,000 per annum;
·         For the period from 1 January 2018 to 30 June 2018, Ms Fereday’s adjusted taxable income is varied to $69,208 per annum;
·         For the period from 1 July 2018 to 31 December 2020, Ms Fereday’s adjusted taxable income is varied to $62,000 per annum.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of both parents - no earning capacity - 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

Ms Fereday and Mr Waterfield are the parents of two children. Ms Fereday’s care percentage in relation to both children is currently recorded for the purposes of assessing child support as 59% and Mr Waterfield’s care percentage is recorded as 41%.
Mr Waterfield lodged an application with the Department of Human Services (the Department) on 20 April 2018 seeking a departure from the administrative assessment. Ms Fereday also lodged a cross-application. At the time of the applications, Mr Waterfield was liable to pay an annual rate of child support of $14,892 for both children. This was calculated by reference to a binding child support agreement in place in relation to one child and the application of the administrative assessment for the other which was based upon an adjusted taxable income (ATI) of $305,168 for Mr Waterfield.
On 1 August 2018, the Department made a decision to depart from the administrative assessment in place and varied Mr Waterfield’s ATI to $162,000 for a period from 1 January 2018 to 24 March 2019. This resulted in an annual rate payable by Mr Waterfield to Ms Fereday of $13,041 for both children.
Mr Waterfield objected to that decision and on 31 October 2018 an objections officer allowed the objection, set aside the previous decision and made a new decision as follows:
·     For the period from 1 January 2018 to 31 March 2019, Ms Fereday’s ATI is $69,208 per annum;
·     For the period from 1 January 2018 to 27 July 2018, Mr Waterfield’s ATI is $169,900 per annum;
·     For the period from 28 July 2018 to 31 March 2020, Mr Waterfield’s ATI is $73,606 per annum.

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: [2019] AATA 1223
Decision Date: 1 April 2019

CaseChat Overview and Summary

This matter concerned an application by the respondent father for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth) regarding child support payable to the applicant mother. The dispute centred on the income, property, and financial resources of both parents, with the father asserting he had no earning capacity. The decision under review was made by the Registrar and was subsequently set aside and substituted by the Court.

The primary legal issue before the Court was whether the Registrar's decision to depart from the assessment of child support was justified, specifically in light of the father's claimed lack of earning capacity and the overall financial circumstances of both parties. The Court was required to consider the evidence presented regarding the income, property, and financial resources of both the father and the mother to determine if a departure from the standard assessment was warranted.

In reaching its decision, the Court applied the principles governing departure determinations under the *Child Support (Registration and Collection) Act 1988*. The Court considered the evidence of the father's financial position, including his asserted lack of earning capacity, and weighed this against the financial position of the mother and the needs of the child. The Court ultimately found that the circumstances warranted a departure from the assessment, substituting its own determination for that of the Registrar. The Court made orders reflecting this substituted determination.

Orders