Geldart and Rearick (Child support) - [2024] AATA 2906

Geldart and Rearick (Child support) [2024] AATA 2906 (23 July 2024)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2024/MC027530
APPLICANT:  Ms Geldart
OTHER PARTIES:  Child Support Registrar
Mr Rearick

TRIBUNAL:Member C Breheny
DECISION DATE: 23 July 2024
DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – departure determination – particulars of the administrative assessment – income, property and financial resources – earning capacity not correctly reflected – unjust and inequitable determination – difficulties obtaining suitable long-term employment – 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

Ms Geldart and Mr Rearick are the separated parents of [Child 1], born June 2008, and [Child 2], born October 2011. A child support case was initially registered (for collection) with Services Australia – Child Support (Child Support) from 12 December 2017. At the time Mr Rearick was assessed to pay child support to Ms Geldart and child support was payable on the basis that Ms Geldart and Mr Rearick had shared care of the children. From 7 March 2019 Ms Geldart became liable to pay child support to Mr Rearick based on a nil income estimate for 2018/19 lodged by Mr Rearick on 14 March 2019.
On 27 April 2019 Ms Geldart lodged an application for a change of assessment stating that the administrative assessment did not adequately reflect the parties’ income, property and financial resources (also known as Reason 8A). The matter was ultimately decided by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal) upon a review application from Mr Rearick. In a decision of 19 May 2020, the Tribunal (differently constituted) determined that Mr Rearick’s adjusted taxable income was varied to $95,910 per annum from 7 March 2019 to 6 April 2020 and Ms Geldart’s adjusted taxable income was varied to $83,253 per annum from 7 March 2019 to 30 June 2019 and to $90,000 per annum from 1 July 2019 to 30 November 2020.
On 21 February 2022 Ms Geldart applied for a second change of assessment application, submitting that the administrative assessment did not adequately reflect Mr Rearick’s income, property, financial resources and earning capacity (Reasons 8A and 8B). On 4 August 2022 a child support objections officer determined that Mr Rearick’s adjusted taxable income was set at $49,611 per annum for the period 21 February 2022 to 30 November 2023. Mr Rearick lodged an application for review with the Tribunal and on 21 April 2023 the Tribunal (differently constituted) determined that Mr Rearick’s adjusted taxable income was varied to $96,056 per annum for the period 21 February 2022 to 30 June 2023, based on Mr Rearick’s earning capacity. This decision reduced Ms Geldart’s child support liability from $5,300 per…

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: [2024] AATA 2906
Decision Date: 23 July 2024

CaseChat Overview and Summary

This matter concerned an application by Ms Geldart for a departure determination regarding the child support administrative assessment for Mr Rearick. The dispute centred on Mr Rearick's earning capacity, with Ms Geldart contending that his income had not been correctly reflected in the assessment, making the determination unjust and inequitable. The case was heard by Member C Breheny.

The primary legal issue before the court was whether Mr Rearick's earning capacity, from 1 July 2023 onwards, was accurately reflected in the administrative assessment. This required the court to consider the evidence presented regarding Mr Rearick's efforts to obtain employment, his qualifications, and any barriers he faced in securing suitable long-term work, to determine if the existing assessment was unjust and inequitable.

Member Breheny considered evidence indicating Mr Rearick had significant barriers to obtaining full-time employment, including difficulties with unfamiliar software and a lack of recent experience in his previous occupation. While acknowledging a prior tribunal finding of additional earning capacity, the court noted its jurisdiction was limited to the period from 1 July 2023. Despite Mr Rearick's resignation from employment in March 2023, the court accepted his evidence that his job applications, including in his former sector, had been unsuccessful due to a lack of current skills. The court found that paragraph 117(7B)(a) of the Act was satisfied, as Mr Rearick was not working and there was no evidence that his decision was justified by caring responsibilities, given the age of his children and their school attendance. Although evidence of psychological and rehabilitation counselling was presented, it was not considered specific enough to establish a diagnosed illness impacting his capacity to work.

The court affirmed the decision regarding Mr Rearick's earning capacity from 1 July 2023, finding that the existing assessment was not unjust and inequitable.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

I asked whether Mr Rearick considered that he had difficulties relating to or communication with people in a workplace. He said that he ordinarily had no issues communicating with people but noted that there might be “other things that are lacking”. He also noted that he saw himself differently as to how he might come across to other people in a workplace.Other evidence Mr Rearick is currently in receipt of Centrelink payments (folio B37). He provided a letter from [Agency 1] dated 4 July 2024 (folio B182) which states that Mr Rearick has been attending since 28 September 2023 and meets the job seeking requirements stipulated by Centrelink. The letter notes that Mr Rearick has also been referred to psychological and allied health services since that time and that he has been referred to several employment positions, including [occupation 1] positions. Mr Rearick also provided a list of job applications that he made (including in the [occupation 1] sector) since September 2023 (folios B191–B195). Mr Rearick said that he is no longer qualified for [occupation 1] roles having been out of this area of employment for over five years now and his applications are unsuccessful. A letter from [Specialist A] ([Agency 2]) dated 27 June 2024 states that Mr Rearick is attending the service to improve his mental and physical health and that the sessions are having a positive effect on his mood, motivation levels and social connection (folio B185). A letter from [Psychologist A] ([Agency 2], provisional psychologist) states that Mr Rearick has attended 16 sessions since 22 February 2024 and the sessions focus on motivation, self-esteem and communication skills (folio B181). A letter from [Counsellor A] ([Agency 2], rehabilitation counsellor) dated 24 June 2024 states that Mr Rearick has been attending since 4 October 2023 and has had 13 sessions. [Counsellor A] writes:It has been apparent that [Mr Rearick] has significant barriers to obtaining full-time employment. [Mr Rearick’s] journey to obtaining employment has not been the easiest.Despite facing numerous obstacles [Mr Rearick has] been actively applying to various vacancie (sic) openings but progress towards sustainable employment has been challenging. [Mr Rearick] has demonstrated proactive engagement by applying for roles that involve unfamiliar software programs. [Mr Rearick is] actively seeking and considering programs to enhance [his] skills and meet the requirements of positions that necessitate these software programs.Conclusion I have considered the evidence before me. I note here that the Tribunal (differently constituted) found in their decision of 21 April 2023 that Mr Rearick had additional earning capacity and that Mr Rearick’s adjusted taxable income should be set at $96,056 per annum until 30 June 2023. I have no jurisdiction to change that decision. Ms Geldart lodged a further change of assessment application on 12 July 2023, essentially asking for the decision regarding Mr Rearick’s earning capacity to be extended from 1 July 2023 onwards. I have therefore considered Mr Rearick’s earning capacity from 1 July 2023.

Decision

Reasons for decision

A letter from [Counsellor A] ([Agency 2], rehabilitation counsellor) dated 24 June 2024 states that Mr Rearick has been attending since 4 October 2023 and has had 13 sessions. [Counsellor A] writes:It has been apparent that [Mr Rearick] has significant barriers to obtaining full-time employment. [Mr Rearick’s] journey to obtaining employment has not been the easiest.Despite facing numerous obstacles [Mr Rearick has] been actively applying to various vacancie (sic) openings but progress towards sustainable employment has been challenging. [Mr Rearick] has demonstrated proactive engagement by applying for roles that involve unfamiliar software programs. [Mr Rearick is] actively seeking and considering programs to enhance [his] skills and meet the requirements of positions that necessitate these software programs.Conclusion I have considered the evidence before me. I note here that the Tribunal (differently constituted) found in their decision of 21 April 2023 that Mr Rearick had additional earning capacity and that Mr Rearick’s adjusted taxable income should be set at $96,056 per annum until 30 June 2023. I have no jurisdiction to change that decision. Ms Geldart lodged a further change of assessment application on 12 July 2023, essentially asking for the decision regarding Mr Rearick’s earning capacity to be extended from 1 July 2023 onwards. I have therefore considered Mr Rearick’s earning capacity from 1 July 2023. There is no dispute that Mr Rearick reduced his working hours to nil from March 2023 when he resigned from [Employer 2]. Ms Geldart submitted that Mr Rearick has made very little effort to find employment since then. She did not think that two job applications per month was adequate. As part of her application for a change of assessment Ms Geldart submitted a list of vacancies in the [occupation 1] sector that she thought Mr Rearick could have applied for (folios 193–208). Mr Rearick’s evidence was that he does not have the skills to be successful in such roles. He did apply for positions in the [occupation 1] sector and he had not been successful. I accept Mr Rearick’s evidence in this regard. The “Show Cause” letter from [Employer 3] dated 26 February 2019 indicates that Mr Rearick was not meeting performance expectations at that time and there is no evidence that he undertook any training activities to increase his skills since then. Other job applications had also been unsuccessful. Thus, as at 1 July 2023 Mr Rearick is not working and I find that paragraph 117(7B)(a) of the Act is satisfied in this case. There is no evidence that Mr Rearick’s decision not to work is justified by his caring responsibilities. [Child 1] was about 15 years old and [Child 2] was 11 years old in March 2023 when Mr Rearick resigned from his employment at [Employer 2]. He had 50% care of the children at that time, and they attend school. There is no reason why he should not be working in those circumstances. The evidence from [Agency 2] indicates that Mr Rearick is attending sessions with a psychologist to address motivation and self-esteem issues. There is further evidence that Mr Rearick was referred by his GP for an opinion and management of “likely anxiety and panic attacks” on 6 April 2022 (folio 335). None of this evidence is specific enough however to include a diagnosed illness and the likely impact of such an illness on his capacity to work.

Ratio Decidendi

Legal Principle Established

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