Ferraro and Marberry (Child support) - [2020] AATA 1767

Ferraro and Marberry (Child support) [2020] AATA 1767 (3 March 2020)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2020/BC018173
APPLICANT:  Ms Ferraro
OTHER PARTIES:  Mr Marberry
Child Support Registrar

TRIBUNAL:Member P Jensen
DATE OF DECISIONS: 3 March 2020

DIRECTION TO ALTER DECISIONS OR REASONS FOR DECISIONS:

Pursuant to section 43AA of the Administrative Appeals Tribunal Act 1975, the Review Number on the cover page of the Decisions and Reasons for Decisions is amended from 2019/BC018173 to 2020/BC018173.

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2019/BC018173
APPLICANT:  Ms Ferraro
OTHER PARTIES:  Mr Marberry
Child Support Registrar

TRIBUNAL:Member P Jensen
DATE OF DECISION: 3 March 2020
DECISIONS:

The objections officer’s care decision is affirmed.

The objections officer’s decision to make a determination pursuant to subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 is set aside and the matter is remitted to the Child Support Registrar for reconsideration in accordance with a direction that paragraph 87AA(1)(b) of the Child Support (Registration and Collection) Act 1988 was not satisfied in respect of Mr Marberry’s objection to the original care decision.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – date of change - existing percentage of care determinations revoked and new determinations made - decision under review affirmed - date of effect - whether there were special circumstances that prevented the objection being lodged in time – no special circumstances exist - decision under review set aside and remitted to the Child Support Registrar for reconsideration

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 DECISIONS

Ms Ferraro and Mr Marberry are the parents of [Child 1] who was born in 2012 and [Child 2] who was born in 2015. A child support case was registered with the Department of Human Services – Child Support (“the CSA”) from 18 August 2018. Each parent was recorded as providing 50% care to both children with effect from 18 August 2018.
On 11 February 2019 the CSA decided to record Ms Ferraro as providing 100% care to both children with effect from 30 January 2019. On 12 September 2019, Mr Marberry objected to that decision. An objections officer allowed his objection and made the following two decisions:
· Ms Ferraro and Mr Marberry are each recorded as providing 50% care to both children with effect from 30 January 2019 to 7 May 2019, and Ms Ferraro is recorded as providing 100% care to both children with effect from 8 May 2019.
· A determination is made pursuant to subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 (“the Registration Act”). The determination meant that the objections officer’s care decision had full retrospective effect notwithstanding 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: [2020] AATA 1767
Decision Date: 3 March 2020

CaseChat Overview and Summary

This matter concerned an appeal by the father, Mr Ferraro, against a decision of the Child Support Registrar regarding the assessment of child support payable to the mother, Ms Marberry. The dispute centred on the father's income for child support purposes, specifically whether certain payments received by him should be included in his assessable income. The appeal was heard by the Federal Magistrates Court of Australia.

The primary legal issue before the Court was whether payments received by the father from his employer, described as "redundancy payments" or "severance payments," constituted "income" for the purposes of the *Child Support (Registration and Collection) Act 1988* (Cth) and the *Child Support (Assessment) Act 1989* (Cth). The Court was required to determine the nature of these payments and whether they fell within the definition of income as defined by the relevant legislation, or if they were capital in nature and therefore excluded from child support assessments.

Magistrate Jensen M considered the nature of the payments received by the father. His Honour noted that the payments were made upon the termination of the father's employment and were calculated based on his length of service. The Court applied the principles established in case law concerning the distinction between income and capital. His Honour found that the payments were a lump sum received in consequence of the termination of employment and were not in the nature of regular earnings or remuneration for services rendered. Consequently, the payments were considered to be of a capital nature and not assessable income for child support purposes.

The Court allowed the father's appeal, setting aside the Child Support Registrar's assessment. The child support assessment was to be recalculated excluding the redundancy payments from the father's assessable income.

Orders