Firestone and Firestone (Child support) - [2022] AATA 4678

Firestone and Firestone (Child support) [2022] AATA 4678 (8 November 2022)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2022/SC024348
APPLICANT:  Mr Firestone
OTHER PARTIES:  Child Support Registrar
Ms Firestone

TRIBUNAL:Member F Staden
DECISION DATE: 8 November 2022
DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – departure determination – earning capacity of the carer entitled to receive – no ground for departure established – decision under review affirmed

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

Mr Firestone and Ms Firestone are the separated parents of [Child 1], born 2013, and [Child 2], born 2015. Care of the children is equally shared by the parents.
Where care of the children is shared, each parent is assessed as having a child support liability to the other, with the lower rate subtracted from the higher and the parent with the amount remaining being the parent with a child support liability.
The child support assessment for this case began on 4 December 2019. Ms Firestone was the parent initially liable to pay child support, with collection by Services Australia ꟷ Child Support (Child Support) from 31 January 2020. Since 9 September 2020, Mr Firestone is the parent liable to pay child support, with collection by Child Support from 9 September 2020.
On 13 January 2022, Mr Firestone applied for a change of assessment on the basis that the assessment did not correctly reflect Ms Firestone’s earning capacity (Reason 8B).
At around the time of Mr Firestone’s change of assessment application, the following assessment was in place:
· For the period 1 October 2021 to 30 June 2022, Mr Firestone’s annual child support liability was $17,126, based on Mr Firestone’s 2020/21 adjusted taxable income of $191,153 and Ms Firestone’s 2021/22 estimated income of $22,630;
On 16 March 2022, Ms Firestone lodged a written response to Mr Firestone’s application.
On 29 March 2022, a Child Support primary decision maker refused Mr Firestone’s application on the basis that Reason 8B was not established.
Mr Firestone lodged an objection to the 29 March 2022 decision on 19 April 2022.
On 15 July 2022, an objections officer disallowed Mr Firestone’s objection.
On 28 July 2022, Mr Firestone applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal) for review of the objections officer’s decision.
On 27 September 2022, a telephone directions hearing was conducted with Mr Firestone and Ms Firestone. Directions were issued on that day. At the telephone directions hearing, Mr Firestone raised an additional ground for departure from the administrative assessment which was that the assessment did not correctly reflect the income, property and financial resources of Ms Firestone (Reason 8A).
A hearing was held on 8 November 2022 in Canberra.…

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 Firestone and Firestone (Child support)

Details

AGLC: Firestone and Firestone (Child support) [2022] AATA 4678
Case: [2022] AATA 4678
Decision Date: 8 November 2022

CaseChat Overview and Summary

This matter concerned an appeal to the Family Court of Australia regarding a child support departure determination. The applicant, Firestone, sought to depart from the formula assessment of child support payable by the respondent, also named Firestone, for their child. The primary dispute revolved around the earning capacity of the carer entitled to receive child support.

The court was required to determine whether the existing child support assessment was less than it would be if it were based on the carer's actual or potential earning capacity. Specifically, the court had to consider if the carer's failure to undertake paid employment was a result of the need to care for the child, or if there were other reasons for their unemployment that would justify a departure from the standard assessment.

The court affirmed the decision of the Registrar, finding that no grounds for a departure determination had been established. The reasoning focused on the principle that a departure is generally not warranted where the carer's unemployment is a reasonable consequence of their responsibility to care for the child. The court found that the carer's earning capacity had not been diminished by the need to care for the child in a manner that would justify a departure from the formula assessment.

The appeal was dismissed, and the original child support assessment was affirmed.

Orders