Guadarama and Wanburg (Child support) - [2024] AATA 3817

Guadarama and Wanburg (Child support) [2024] AATA 3817 (3 September 2024)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2024/PC027741
APPLICANT:  Mr Guadarama
OTHER PARTIES:  Child Support Registrar
Ms Wanburg

TRIBUNAL:Senior Member R Ellis
DECISION DATE: 03 September 2024
DECISION:

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

for the period from 14 August 2023 to 30 June 2024 the adjusted taxable income of [Mr Guadarama] is varied to $99,132; and
for the period from 1 July 2024 to 30 November 2024 the annual rate of child support payable by [Mr Guadarama] shall be fixed at $5,160.

CATCHWORDS

CHILD SUPPORT – departure determination – special circumstances – parents’ income and financial resources – earning capacity – commencement of new 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

This review is about whether or not there should be a departure from the administrative assessment of child support.
Mr Guadarama and Ms Wanburg are the parents of [Child 1] (born September 2008), [Child 2] (born August 2014) and [Child 3] (born December 2016). There has been a child support assessment in place since 19 December 2018 and [Mr Guadarama] is currently the liable parent under the assessment.
The following administrative assessments of child support are under consideration:
· for the period from 1 July 2023 to 31 August 2023 [Mr Guadarama] was assessed to pay an annual rate of $12,606 based on a 2021-22 adjusted taxable income of $70,490 for [Mr Guadarama] and a 2021-22 adjusted taxable income for Ms Wanburg of $59,838; and
· for the period from 1 September 2023 to 30 November 2024 [Mr Guadarama] is assessed to pay an annual rate of $4,896 (fixed annual rate) based on a 2022-23 adjusted taxable income of $16,268 for [Mr Guadarama] and a 2022-23 adjusted taxable income for Ms Wanburg of $75,108.
On 14 August 2023 Ms Wanburg applied to Services Australia – Child Support (Child Support) for a change to the assessment on the basis of a parent’s income, property and financial resources (the ground commonly known as Reason 8A).
On 8 December 2023 Child Support made the decision to change the assessment so that for the period from 14 August 2023 to 30 November 2024, the adjusted taxable income of [Mr Guadarama] is set at $85,000 (the original decision).
On 6 January 2024 [Mr Guadarama] objected to this decision and on 21 March 2024 Child Support allowed the objection in part and made the decision to change the assessment so that for the period from 14 August 2023 to 31 December 2024, the adjusted taxable income of [Mr Guadarama] is set at $118,744 (the objection decision).
On 2 April…

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 3817
Decision Date: 3 September 2024

CaseChat Overview and Summary

This matter concerned an application by the father, Guadarama, to set aside a departure determination made by the Child Support Registrar. The Registrar had previously determined that the mother, Wanburg, had a reduced assessment of child support payable due to her reduced income and earning capacity, stemming from her commencement of a new business. The father sought to have this determination reviewed, arguing that the Registrar’s decision was erroneous. The case was heard by Senior Member R Ellis of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the Registrar’s departure determination was justified under the *Child Support (Registration and Collection) Act 1988* (Cth). Specifically, the Tribunal had to consider whether the mother’s circumstances constituted "special circumstances" that warranted a departure from the standard child support assessment, and whether the Registrar had correctly assessed the mother’s income and earning capacity in light of her new business venture.

Senior Member R Ellis reasoned that the Registrar’s decision to depart from the standard assessment was not supported by the evidence. The Tribunal found that while the mother had commenced a new business, there was insufficient evidence to establish that her income and earning capacity had been significantly reduced in a manner that constituted special circumstances. The Tribunal considered the mother’s financial resources and her capacity to earn income, concluding that the Registrar had erred in its assessment of these factors.

Consequently, the Tribunal set aside the Registrar’s departure determination and substituted its own decision. The Tribunal found that the mother’s circumstances did not meet the threshold for a departure from the standard assessment, and therefore, the original child support assessment remained in effect.

Orders