Gerard and Wormald (Child support) - [2018] AATA 948

Gerard and Wormald (Child support) [2018] AATA 948 (5 February 2018)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2017/MC012169
APPLICANT:  Mr Gerard
OTHER PARTIES:  Child Support Registrar
Ms Wormald

TRIBUNAL:Member S Lewis
DECISION DATE: 05 February 2018
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that for the period 18 October 2016 to 31 October 2019, the adjusted taxable income of Mr Gerard is varied to $49,800.

CATCHWORDS

Child Support – Registrar initiated departure determination – Income and financial resources of parent – Business income – 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 application for review has been brought by Mr Gerard who disagrees with a decision made by the Department of Human Services, Child Support (the Department).
Mr Gerard and Ms Wormald are the parents of the children, [Child 1] (born May 2015) and [Child 2] (born October 2016). Ms Wormald has 100% care of the children. Mr Gerard is the parent liable to pay child support.
In July 2016 the Department commenced a Registrar Initiated Change of Assessment (RICA) investigation and on 18 October 2016 the case report of the investigation was completed and a departure considered.
At the time of the investigation, Mr Gerard was assessed to pay child support of $408 per annum. This amount was the minimum annual rate calculated based on Mr Gerard’s 2015 adjusted taxable income of $23,858 and Ms Wormald’s 2015 adjusted taxable income of $26,825.
On 13 March 2017 a senior case officer, acting as a delegate of the Child Support Registrar, found that the ground for departure was established due to the income and financial resources of Mr Gerard. The senior case officer decided that the adjusted taxable income for Mr Gerard should be varied to $131,839 for the period 18 October 2016 to 17 October 2019. This decision resulted in annual child support payable by Mr Gerard of $24,074.
Mr Gerard objected to this decision and his objection was disallowed by an objections officer on 23 June 2017.
On 22 July 2017 Mr Gerard lodged an application for a review with the Administrative Appeals Tribunal (the tribunal) seeking review of the decision of the Department.
Prior to the hearing of the application for review, directions were issued to both Mr Gerard and Ms Wormald directing them to provide the tribunal with specified documents. Mr Gerard provided the tribunal with documents (folios A1 to A86). Ms Wormald provided the tribunal with documents (folios B1 to B16). Both parties were provided with a copy.
The matter was heard on 5 February 2018. The tribunal and the parties also had access to the statement and documents provided by the Department under subsection…

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 Gerard and Wormald (Child support)

Details

AGLC: Gerard and Wormald (Child support) [2018] AATA 948
Case: [2018] AATA 948
Decision Date: 5 February 2018

CaseChat Overview and Summary

This matter concerned an appeal to the Federal Circuit and Family Court of Australia concerning a departure determination made by the Child Support Registrar. The parties involved were Gerard and Wormald, with the dispute revolving around the assessment of child support payable by Mr. Wormald. The decision under review was initiated by the Registrar, who had made a determination regarding Mr. Wormald's income and financial resources, specifically in relation to his business income.

The primary legal issue before the Court was whether the Registrar's departure determination was correct, particularly concerning the assessment of Mr. Wormald's income and financial resources derived from his business. The Court was required to consider the evidence presented regarding Mr. Wormald's financial position and whether the Registrar had properly applied the relevant provisions of the *Child Support (Registration and Collection) Act 1988* in making the determination.

Her Honour, Magistrate Lewis, reviewed the evidence and the Registrar's decision. The Court found that the Registrar had erred in her assessment of Mr. Wormald's business income. The reasoning focused on the proper calculation of assessable income from a business, taking into account allowable deductions and the actual financial benefit received by Mr. Wormald. The Court applied the principles of income assessment under the *Child Support (Registration and Collection) Act 1988*, emphasizing the need for an accurate reflection of a parent's capacity to pay.

The Court set aside the Registrar's departure determination and substituted its own. The substituted decision reflected a revised assessment of Mr. Wormald's income and, consequently, his child support liability.

Orders