Georgiev and Georgiev (Child support) - [2020] AATA 2677

Georgiev and Georgiev (Child support) [2020] AATA 2677 (3 June 2020)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2020/SC018331
APPLICANT:  Mr Georgiev
OTHER PARTIES:  Child Support Registrar
Ms Georgiev

TRIBUNAL:Senior Member A Freeman
DECISION DATE: 3 June 2020
DECISION:

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

For the period from 24 January 2019 to 30 June 2019, Mr Georgiev’s adjusted taxable income is varied to $110,000;
For the period from 1 July 2019 to 31 December 2020, Mr Georgiev’s adjusted taxable income is varied to $84,984; and
For the period from 1 July 2019 to 31 December 2020, Ms Georgiev’s adjusted taxable income is varied to $44,228.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of both parents - benefits derived from business – 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

Mr and Ms Georgiev are the parents of one child. Ms Georgiev’s care percentage for the purposes of assessing child support at the time of the objection decision was recorded as 100%.
Ms Georgiev lodged an application with the Department of Human Services (now Services Australia) (the Department) on 18 June 2019 seeking a departure from the administrative assessment of child support. At the time of the application, Mr Georgiev was liable to pay an annual rate of child support of about $10,855. This was calculated using an adjusted taxable income (ATI) of $75,900 for Mr Georgiev and an ATI of $58,609 for Ms Georgiev. From 1 July 2019, Mr Georgiev’s ATI changed to $40,078.
On 2 October 2019, the Department found that grounds to depart existed and varied the assessment by setting an annual rate payable by Mr Georgiev to Ms Georgiev as follows:
·     $17,462 for 2019;
·     $17,986 for 2020;
·     $18,526 for 2021;
·     $19,082 for 2022.
Mr Georgiev objected to this decision and on 7 January 2020 an objections officer allowed the objection and set aside the earlier decision and instead decided as follows:
· For the period from 24 January 2019 until there is a terminating event which ends the case, Mr Georgiev’s ATI is set at $115,000 to be increased by the Child Support Inflation Factor on 30 June 2020 and on 30 June each year thereafter.
Mr Georgiev has sought a further review of this decision.
Mr Georgiev submits that his ATI does not reflect his true income and financial resources and should be lower such that the assessment of child support is unfair.
The Tribunal hearing was conducted on 3 June 2020. The parties appeared by conference telephone. In reaching its decision, the Tribunal has considered the sworn evidence given by both parties at 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.

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Details

Case: [2020] AATA 2677
Decision Date: 3 June 2020

CaseChat Overview and Summary

The case of *Georgiev and Georgiev* concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth). The applicant sought to have the assessed child support payable by the respondent varied, based on allegations concerning the respondent's income, property, and financial resources, particularly benefits derived from a business. The Senior Member of the court was required to review the initial decision made by the Registrar.

The primary legal issue before the court was whether the Registrar had erred in refusing to make a departure determination. This required the court to consider whether the respondent's circumstances, specifically his income, property, and financial resources, were such that the assessment of child support payable under the *Child Support (Assessment) Act 1989* (Cth) was unjust or inequitable. The court had to determine if the respondent's actual financial position, including benefits derived from his business, differed significantly from what was reflected in the child support assessment.

The Senior Member found that the Registrar had failed to adequately consider the evidence presented regarding the respondent's financial position and the benefits he derived from his business. The court applied the principles of the *Child Support (Assessment) Act 1989* (Cth), which allow for departure from a child support assessment in certain circumstances where it would be unjust or inequitable to do so. The Senior Member concluded that the Registrar's decision was not supported by the evidence and that a departure determination was warranted. The court set aside the Registrar's decision and substituted its own determination.

Orders