Gundy and Zachry (Child support) - [2023] AATA 4291

Gundy and Zachry (Child support) [2023] AATA 4291 (24 October 2023)

DIVISION: Social Services & Child Support Division

REVIEW NUMBER: 2023/BC026360

APPLICANT: Ms Gundy

OTHER PARTIES: Child Support Registrar
Mr Zachry

TRIBUNAL: Deputy President K Synon

DECISION DATE: 24 October 2023

DIRECTION TO ALTER DECISION:

Pursuant to section 43AA of the Administrative Appeals Tribunal Act 1975, the Tribunal directs the Registrar to alter the text of the decision of the Tribunal as follows:

The decision statement of the Tribunal is altered by deleting the date “31 October 2023” and substituting the date “31 October 2024” so that the decision now is:

The Tribunal sets aside the decision under review and, in substitution, decides that for the period 6 March 2023 to 31 October 2024 a nil annual rate of child support is payable by Ms Gundy to Mr Zachry and a nil annual rate of child support is payable by Mr Zachry to Ms Gundy.

Deputy President

K Synon
9 November 2023

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/BC026360
APPLICANT:  Ms Gundy
OTHER PARTIES:  Child Support Registrar
Mr Zachry

TRIBUNAL:Deputy President K Synon
DECISION DATE: 24 October 2023
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that for the period 6 March 2023 to 31 October 2023 a nil annual rate of child support is payable by Ms Gundy to Mr Zachry and a nil annual rate of child support is payable by Mr Zachry to Ms Gundy.

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 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

The Child Support (Assessment) Act 1989 (the Act) provides for an administrative assessment of child support payable. It uses a formula which contains variables such as the parents’ adjusted taxable incomes and their percentages of care. The Act also provides for a departure from the administrative assessment in certain circumstances.
This case was registered with Services Australia – Child Support (Child Support) on 13 March 2020 and has been collectable since that date. Ms Gundy (the mother) and Mr Zachry (the father) are the parents of [Child 1] (the child) born in July 2016.
From 12 September 2020 the child was recorded as being in the 86% care of the father and 14% care of the mother. From 2 July 2022 the care record was amended to reflect that the father had 72% care and the mother had 28% care of the child. The care record was further amended from 6 March 2023 to reflect the child as being in the 58% care of the father and 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: [2023] AATA 4291
Decision Date: 24 October 2023

CaseChat Overview and Summary

The case of *Gundy and Zachry* concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth). The applicant sought to depart from the assessed child support amount, arguing that the liable parent's income, property, and financial resources warranted such a departure. The Deputy President, K Synon P, presided over the review.

The primary legal issue before the Deputy President was whether a ground for departure from the child support assessment had been established, and if so, whether it was just and equitable to make a departure determination. This involved considering the specific circumstances of the liable parent's financial position in relation to their child support obligations.

The Deputy President found that a ground for departure was indeed established. In reaching this conclusion, the Deputy President applied the principles outlined in the *Child Support (Registration and Collection) Act 1988*, which permit departures from assessed amounts in certain circumstances, including where the liable parent's income, property, or financial resources are significantly different from what was assumed in the assessment. The Deputy President's reasoning focused on the specific financial evidence presented concerning the liable parent.

The decision under review was set aside and substituted with a new determination reflecting the findings made by the Deputy President.

Orders