Gilson and Gilson (Child support) - [2023] AATA 840

Gilson and Gilson (Child support) [2023] AATA 840 (28 February 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2022/MC024608
APPLICANT:  Ms Gilson
OTHER PARTIES:  Child Support Registrar
Mr Gilson

REVIEW NUMBER:  2022/MC024650
APPLICANT:  Mr Gilson
OTHER PARTIES:  Child Support Registrar
Ms Gilson

TRIBUNAL:Member M Douglas
DECISION DATE: 28 February 2023
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the annual rate of child support payable by Mr Gilson be varied to:

a)$23,400 for the period 1 January 2022 to 6 April 2022;
b)$15,600 for the period 7 April 2022 to 31 December 2023.

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

Ms Gilson and Mr Gilson are the separated parents of [Child 1], [Child 2] and [Child 3]. Assessments of child support have been issued for those children with the first taking effect on 20 May 2021.
Broadly speaking, an assessment of child support is made in accordance with the provisions of Part 5 of the Child Support (Assessment) Act 1989 (the Act). Those provisions prescribe a formula that applies to several variables to work out the amount of child support one parent must pay the other for their children. Those variables include the parents’ taxable incomes from the financial year before the start of the child support period to which the assessment relates, the level of care that each parent provides for their children, the cost of the children and whether a parent supports any children from a separate relationship. Section 98B of the Act permits a parent, if a parent believes there are special circumstances, to apply to Services Australia for a determination to be made to depart from those provisions. Services Australia describes such an application as a “change of assessment application”.
On 20 December 2021 Ms Gilson made such an application. At that time the assessment of child support, which was for the child support period 20 May 2021 to 28 February 2022, obligated Mr Gilson to pay child support to Ms Gilson for the children at an annual rate of $3,378. The assessment was calculated on an adjusted taxable income for Mr Gilson of $43,000 and an adjusted taxable income for Ms Gilson of nil. Mr Gilson’s adjusted taxable income reflected his taxable income for the 2020 financial year.
The assessment for the following child support period commencing 1 March 2022 obligated Mr Gilson to pay child support at an annual rate of $4,321. That was based on Mr Gilson’s adjusted taxable income of $47,900, which reflected his…

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 Gilson and Gilson (Child support)

Details

AGLC: Gilson and Gilson (Child support) [2023] AATA 840
Case: [2023] AATA 840
Decision Date: 28 February 2023

CaseChat Overview and Summary

The matter of *Gilson and Gilson* concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth). The primary dispute revolved around the income, property, and financial resources of the liable parent, and whether these warranted a departure from the standard child support assessment. The decision was made by M Douglas M.

The court was required to determine whether a ground for departure was established based on the liable parent's financial circumstances. Specifically, the court had to assess whether the liable parent's actual income, property, and financial resources were significantly different from those presumed by the child support formula, and if this difference would result in an unjust or inequitable outcome if the assessment were not departed from.

The court found that a ground for departure was indeed established. In reaching this conclusion, the court considered the specific financial information presented regarding the liable parent's income, property, and financial resources. The court applied the principles of the *Child Support (Registration and Collection) Act 1988* to these facts, determining that the disparity in financial circumstances justified a departure from the standard assessment to ensure a just and equitable outcome for the child. The decision to depart was upheld.

Orders