Fitzsimons and Fitzsimons (Child support) - [2019] AATA 3845

Fitzsimons and Fitzsimons (Child support) [2019] AATA 3845 (19 June 2019)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2018/PC015207
APPLICANT:  Mr Fitzsimons
OTHER PARTIES:  Child Support Registrar
Ms Fitzsimons

TRIBUNAL:Senior Member R Ellis
DECISION DATE: 19 June 2019

DECISION:

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

for the period 7 February 2018 until 30 April 2019 the adjusted taxable income of Ms Fitzsimons is set at A$38,764;
for the period 1 May 2019 until a terminating event for this case the adjusted taxable income of Ms Fitzsimons is set at A$64,825;
for the period 7 February 2018 until 30 November 2018 the adjusted taxable income of Mr Fitzsimons is set at A$137,503;
for the period 1 December 2018 until a terminating event for this case the adjusted taxable income of Mr Fitzsimons is set at A$165,400;
for the period 26 February 2018 to 22 June 2018 the relevant dependent allowance for Mr Fitzsimons will increase by an additional $A7,025 in recognition of the costs of supporting [Child 1] during his tertiary studies; and
for the period 7 February 2018 to 28 November 2018 the relevant dependent allowance for Mr Fitzsimons will increase by an additional A$5,132 in recognition of the expenses associated with Mrs Fitzsimons’ medical conditions.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of both parents – benefits derived from business – duty to maintain an adult child – duty to maintain current spouse – 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

This review is about whether or not there should be a departure from the administrative assessment of child support.
Mr Fitzsimons and Ms Fitzsimons are the parents of [Child 2] (born March 2002) and [Child 1] (born November 1999). There has been a child support assessment in place since 2 May 2014 with collection by the Department of Human Services, Child Support (the Child Support Agency) since 13 February 2018. Mr Fitzsimons lives in [City 1], Australia and Ms Fitzsimons lives in [City 2], South Africa.
It is noted that care for [Child 2] was recorded as 100 per cent to Ms Fitzsimons from 2 May 2014. Care for [Child 2] then changed with Mr Fitzsimons having 100 per cent care from 29 November 2018. The assessment ended in relation to [Child 1] on 8 November 2017 when he reached 18 years of age.
The child support assessment in place prior to the change of assessment required Mr Fitzsimons to pay an annual rate of child support to Ms Fitzsimons of $11,793. This rate was set by a change of assessment decision made by the Child Support Agency on 24 March 2016…

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 Fitzsimons and Fitzsimons (Child support)

Details

AGLC: Fitzsimons and Fitzsimons (Child support) [2019] AATA 3845
Case: [2019] AATA 3845
Decision Date: 19 June 2019

CaseChat Overview and Summary

This matter concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth) brought by the applicant, Ms Fitzsimons, against the respondent, Mr Fitzsimons. The dispute centred on the assessment of child support payable for the parties' adult child, and the applicant's claim for spousal maintenance. The decision was made by Senior Member R Ellis of the Child Support Special Powers Tribunal.

The primary legal issues before the Tribunal were whether to make a departure determination regarding the assessed child support payable for the adult child, and whether to make an order for spousal maintenance. In considering the departure determination, the Tribunal was required to assess the income, property, and financial resources of both parents, including any benefits derived from business interests. The Tribunal also had to consider the respondent's legal duty to maintain the parties' adult child and his duty to maintain his current spouse.

Senior Member Ellis reasoned that the respondent's financial position, particularly the significant benefits he derived from his business, warranted a departure from the standard child support assessment. The Tribunal found that the respondent had the capacity to pay a higher amount of child support than that which was being assessed under the standard formula. Furthermore, the Tribunal determined that the respondent had a legal obligation to provide spousal maintenance to the applicant, considering their respective financial circumstances and the respondent's capacity to pay.

The Tribunal set aside the existing child support assessment and substituted it with a new assessment reflecting a higher child support payment. Additionally, the Tribunal made an order for spousal maintenance in favour of the applicant.

Orders