Genge and Ambler (Child support) - [2022] AATA 230

Genge and Ambler (Child support) [2022] AATA 230 (4 January 2022)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2021/BC021749
APPLICANT:  Mrs Genge
OTHER PARTIES:  Child Support Registrar
Mr Ambler

TRIBUNAL:Member T Hamilton-Noy
DECISION DATE: 4 January 2022
DECISION:

The Tribunal sets aside the decision under review and substitutes its decision that:

For the period 1 January 2020 to 31 January 2023, Mr Ambler’s adjusted taxable income is varied to $72,800 per annum;
For the period 1 July 2021 to 30 June 2022, child support payable by Mr Ambler is increased by $4,652.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the liable parent – a ground for departure established – decision to depart – 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 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

Mrs Genge and Mr Ambler are the separated parents of [Child 1] and [Child 2]. A case has been registered with Services Australia – the Child Support Agency (the Agency) since 5 December 2008 and child support has been collectable by the Agency since 30 May 2016. Mrs Genge is the payee of child support in this matter and Mr Ambler the payer.
There have been previous departure determinations made by the Agency relating to the parents. Most recently, prior to the current departure application, the Agency varied Mr Ambler’s adjusted taxable income to $72,800 for the period 1 July 2019 to 31 April 2022 and, for the period 1 July 2019 to 31 December 2019, child support was increased by $2,000, relating to the children’s school and child care costs. This resulted in an annual rate of child support payable by Mr Ambler of $13,362 from 1 July 2019 to 31 December 2019.
The relevant assessments of child support, for the purpose of this decision, were as follows:
·      For the period 1 January 2020 to 31 July 2020, Mr Ambler was to pay $11,362 per annum, based on his adjusted taxable income of $72,800 and Mrs Genge’s 2018/2019 adjusted taxable income of $24,931;
·      For the period 1 August 2020 to 29 December 2020, Mr Ambler was to pay $11,178 per annum, based on his adjusted taxable income of $72,800 and Mrs Genge’s 2019/2020 adjusted taxable income of $35,763;
·      For the period 30 December 2020 to 31 October 2021, Mr Ambler was to pay $12,358 per annum, based on his adjusted taxable income of $72,800 and Mrs Genge’s 2019/2020 adjusted taxable income of $35,763. The change to the annual rate was due to [Child 1] turning 13 years of age.
On 8 December 2020, Mr Ambler applied for a departure from the administrative assessment of child support based on his income, property and financial resources (called…

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 Genge and Ambler (Child support)

Details

AGLC: Genge and Ambler (Child support) [2022] AATA 230
Case: [2022] AATA 230
Decision Date: 4 January 2022

CaseChat Overview and Summary

This matter concerned an appeal by the liable parent, Mr Genge, against a departure determination made by the Registrar of the Child Support Agency. The dispute centred on whether the Registrar had erred in departing from the usual child support assessment based on the liable parent's income, property, and financial resources. The appeal was heard by the Federal Magistrates Court of Australia.

The primary legal issue before the Court was whether the Registrar had correctly applied the provisions of the *Child Support (Registration and Collection) Act 1988* (Cth) when making the departure determination. Specifically, the Court had to consider whether the grounds for departure were established and whether the decision to depart was justified in the circumstances of the case.

The Court reviewed the evidence presented regarding Mr Genge's financial position, including his income, property, and other financial resources. It was found that the Registrar had indeed established a ground for departure under the Act. However, the Court determined that the Registrar's decision to depart from the assessment was not adequately supported by the evidence and reasoning provided. Consequently, the Court set aside the Registrar's departure determination and substituted its own decision.

Orders