Hailey and Childers (Child support) - [2023] AATA 2135

Hailey and Childers (Child support) [2023] AATA 2135 (30 May 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2022/AC025065
APPLICANT:  Mr Hailey
OTHER PARTIES:  Child Support Registrar
Ms Childers

TRIBUNAL:Senior Member R Ellis
DECISION DATE: 30 May 2023
DECISION:

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

for the period from 19 May 2022 to 30 June 2022 the adjusted taxable income of Mr Hailey is varied to $102,669; and
for the period from 1 July 2022 to 30 September 2024 the adjusted taxable income of Mr Hailey is varied to $94,231.

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

This review is about whether or not there should be a departure from the administrative assessment of child support.
Mr Hailey and Ms Childers are the parents of [Child 1] (born March 2004) and [Child 2] (born April 2007). There has been a child support assessment in place since 21 April 2004 and Mr Hailey is currently the liable parent.
The following administrative assessments of child support are under consideration:
· for the period from 18 March 2022 to 31 July 2022 Mr Hailey was assessed to pay the fixed annual rate of $2,954 based on a 2020-21 adjusted taxable income of $8,537 for Mr Hailey and a 2020-21 adjusted taxable income for Ms Childers of $44,873; and
· for the period from 1 August 2022 to 1 November 2022 Mr Hailey was assessed to pay the fixed annual rate of $3,042 based on a provisional 2021-22 adjusted taxable income of $8,785 for Mr Hailey and a 2021-22 adjusted taxable income for Ms Childers of $51,384.
On 19 May 2022 Ms Childers applied to Services Australia – Child Support (Child Support) for a change to the assessment on the basis of the special needs of the child (the ground more commonly known as Reason 2) and a parent’s income, property and financial resources or earning capacity (Reasons 8A & 8B).
On 11 August 2022 Child Support made the decision to change the assessment so that for the period from 19 May 2022 to 31 August 2024 the adjusted taxable income of Mr Hailey is set at $130,119 with this amount to be indexed by the relevant child support inflation factor from 1 August 2023 (the original decision).
On 13 September 2022 Mr Hailey objected to this decision and on 16 November 2022 Child Support disallowed the objection (the objection decision).
On 17 November 2022 Mr Hailey applied for a review of the objection decision by…

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 Hailey and Childers (Child support)

Details

AGLC: Hailey and Childers (Child support) [2023] AATA 2135
Case: [2023] AATA 2135
Decision Date: 30 May 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application by the liable parent, Mr Childers, to set aside a departure determination made by the Registrar of Child Support. The determination had been made on the basis that Mr Childers' income, property, and financial resources were significantly different from those that would be assumed under the Child Support (Assessment) Act 1989 (Cth). Ms Hailey was the payee parent.

The primary legal issue before the Tribunal was whether the Registrar's decision to depart from the assessment formula was justified. This required the Tribunal to determine if the grounds for departure, as outlined in section 117 of the Act, were established, and if so, whether it was just and equitable to depart from the assessment. The Tribunal also had to consider whether the departure determination was the correct or preferable decision in the circumstances.

The Tribunal found that Mr Childers had failed to establish that his income, property, or financial resources were significantly different from those assumed under the Act. Specifically, the Tribunal was not satisfied that Mr Childers had discharged his onus of proof in demonstrating that he had a greater capacity to pay child support than that which would be assessed under the standard formula. Consequently, the Tribunal concluded that the grounds for departure under section 117 were not met.

The Tribunal set aside the Registrar's departure determination and substituted its own decision that no departure from the assessment was justified.

Orders