Florey and Zane (Child support) - [2021] AATA 2727

Florey and Zane (Child support) [2021] AATA 2727 (17 June 2021)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2020/PC020377
APPLICANT:  Mr Florey
OTHER PARTIES:  Child Support Registrar
Ms Zane

TRIBUNAL:Member J Leonard
DECISION DATE: 17 June 2021
DECISION:

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

·for the period from 17 October 2019 to 31 October 2021 the adjusted taxable income of Ms Zane is varied to $77,100.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the carer entitled to receive – ground for departure established –whether child’s talent amounts to special needs – 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.
Ms Zane and Mr Florey are the parents of [Child 1] (born 2006). There has been a child support assessment in place since 2011 and Mr Florey is the liable parent under the assessment.
For the period from 1 September 2019 to 30 November 2020 Mr Florey was assessed to pay an annual rate of $25,268 based on a 2018–19 adjusted taxable income of $190,886 for Mr Florey and a 2018–19 adjusted taxable income of $45,921 for Ms Zane. The assessment was based on Ms Zane having a care percentage of 100% and Mr Florey having a care percentage of 0%.
On 6 November 2019 Mr Florey applied to the Department of Human Services (Child Support) for a departure from the administrative assessment on the basis of the income, property, and financial resources of Ms Zane. This is commonly referred to by Child Support as Reason 8A. Mr Florey subsequently advised Child Support that he also sought to depart from the administrative assessment on the basis that he has a responsibility to financially support his partner (Reason 9), and this significantly affects his ability to support [Child 1].
In response, Ms Zane cross-applied for a departure from the administrative assessment on the basis of the special needs of the child (the ground commonly referred to as Reason 2), the high costs of caring for, educating or training the child (Reason 3), her out of the ordinary necessary expenses to support herself (Reason 7) and because the assessment did not reflect her income, property, financial resources and earning capacity (Reason 8A and 8B). Ms Zane later withdrew Reason 7, 8A and 8B from her application.
On 30 May 2020 Child Support made the decision to change the assessment (the original decision) so that:
· for the period from 17 October 2019 to 30 September 2021 Ms Zane’s adjusted taxable income is varied to $77,100;
· for 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.

Continue reading Florey and Zane (Child support)

Details

AGLC: Florey and Zane (Child support) [2021] AATA 2727
Case: [2021] AATA 2727
Decision Date: 17 June 2021

CaseChat Overview and Summary

This matter concerned an application by Mr Florey for a departure from a child support assessment made in relation to his child, [Child 1], with Ms Zane. The dispute centred on the financial capacity of each parent to support the child and whether the child's alleged talent constituted a "special need" justifying a departure from the standard assessment. The decision was made by J Leonard M.

The legal issues before the Tribunal were whether the grounds for a departure from the administrative assessment were established, specifically whether the child's talent amounted to a special need, and if so, whether it was otherwise proper to make a departure determination. The Tribunal was required to consider the income, property, and financial resources of both Mr Florey and Ms Zane, as well as the balance of support between the parents and the potential impact on government benefits.

The Tribunal reasoned that while not bound by policy, it should consider relevant government policy that is consistent with the objects of the Child Support (Registration and Collection) Act 1988. It found that Mr Florey's available resources were not significantly reduced by his duty to support another person, [Ms B], and that he had substantial income and an increasing share portfolio. Ms Zane had a lower income but significant savings. The Tribunal determined that it was just and equitable to backdate the departure determination to 17 October 2019.

The Tribunal ordered that for the period from 17 October 2019 to 31 October 2021, Ms Zane's adjusted taxable income be varied to $77,100, resulting in an annual child support payment by Mr Florey of approximately $21,725. While acknowledging this might cause some hardship to Ms Zane due to expenses related to the child's attendance at [Organisation 1], the Tribunal found it would not cause hardship to Mr Florey. The Tribunal also considered the balance of parental support and the potential impact on government benefits.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The Tribunal is not bound by policy. However, in Drake v Minister for Immigration and Ethnic Affairs[3] the Full Federal Court held that a Tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. In this instance, the Tribunal accepts that the policy is consistent with the objects of the Act and assists in making a decision under the legislation.[3] 1979 ALD 60 Mr Florey’s income and financial resources have been discussed above. Although Mr Florey’s available resources are reduced because of his duty to support [Ms B], the Tribunal was not persuaded that this significantly reduces his capacity to support [Child 1]. In reaching this conclusion the Tribunal took into consideration Mr Florey’s overall financial situation together with the financial support he provides in respect of [Ms B]’s children and the money he sets aside to visit [Child 1] which is not currently being expended. Ms Zane does not have a responsibility to support any person other than [Child 1]. Ms Zane has access to gross income of around $85,000 per annum to meet her day to day expenses and has savings of around $19,000. Mr Florey currently has access to gross income of approximately $193,000 per annum and has significantly increased his share portfolio in the 2020/21 financial year. As at 25 May 2021 he had child support arrears of $778. The Tribunal notes that in his application for a departure from the administrative assessment made on 6 November 2019 Mr Florey requested that any change be backdated to 17 October 2019. In this case the Tribunal finds it just and equitable to commence the departure determination from 17 October 2019. Having considered the interests of both parents and [Child 1], the Tribunal proposes to make the following determination:·for the period from 17 October 2019 to 31 October 2021 the adjusted taxable income of Ms Zane is varied to $77,100. The Tribunal applied the newly calculated income for Ms Zane in the child support formula and found the level of child support payable by Mr Florey would be approximately $21,725 per annum from 17 October 2019. The Tribunal acknowledges the proposed determination may cause some hardship to Ms Zane given the expenses she incurs in respect of [Child 1]’s attendance at [Organisation 1]. The Tribunal is of the view that the determination will not cause hardship to Mr Florey. The third step is to consider whether it would be otherwise proper to make a particular departure determination in accordance with sub-subparagraph 98C(1)(b)(ii)(B) of the Act. Subsection 117(5) sets out the matters that must be considered when deciding whether it would be otherwise proper to make a departure determination. It focuses on the balance of support carried between the parents on one hand and the taxpayer on the other. It is appropriate for the children to be primarily supported by their parents rather than by government assistance. The Tribunal must consider whether the level of a benefit, in particular family tax benefit, received by the party caring for the children may be affected by the level of child support.