Halsey and Halsey (Child support) - [2021] AATA 5186

Halsey and Halsey (Child support) [2021] AATA 5186 (4 November 2021)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2021/PC021506
APPLICANT:  Mr Halsey
OTHER PARTIES:  Child Support Registrar
Ms Halsey

TRIBUNAL:Member M Martellotta
DECISION DATE: 04 November 2021
DECISION:

The tribunal sets aside the decision under review so that from 13 November 2020 to 30 November 2022 Mr Halsey’s adjusted taxable income for child support purposes is varied to $60,000.

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 varied

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

Mr Halsey and Ms Halsey are the parents of three children born [October 2017], [May 2015] and [May 2013]. Services Australia – Child Support (the Agency’s) record is that the children are in Mr Halsey’s 18% care and Ms Halsey’s 82% care.
On 13 November 2020 Ms Halsey applied for a change of assessment on the ground of Reason 8A which refers to a parent’s income, financial resources and property. At that point of time, the administrative assessment in place was that for the period:
·10 November 2020 to 30 December 2020 Mr Halsey was assessed to pay an annual rate of child support of $1,173. This was based on a 2019/20 provisional adjusted taxable income (ATI) of $31,360 and Ms Halsey’s 2019/20 ATI of $34,588.[1]
·31 December 2020 to 31 October 2021 Mr Halsey was assessed to pay an annual rate of child support of $507. This was based on a 2019/20 provisional ATI of $31,360 and Ms Halsey’s 2019/20 ATI of $34,588.[2]
[1] In this period Mr Halsey had 0% care of the children.
[2] In this period Mr Halsey had 18% care of the children.

The Agency found the ground was established and decided to vary the assessment.[3] For the period 13 November 2020 to 31 October 2021 Mr Halsey’s ATI was varied to $35,096.
[3] 9 February 2021
Mr Halsey objected to the decision. The Agency decided to vary Mr Halsey’s ATI to $70,000 for the period 13 November 2020 to 30 November 2022. This increased Mr Halsey’s annual liability to $6,804 and created arrears of $2,780.
The tribunal convened a telephone directions hearing attended by the parental parties following which it issued directions. A hearing was held on 4 November 2021. Mr Halsey and Ms Halsey participated by conference telephone and they each gave their evidence on affirmation.
The following documents were provided. Agency documents (434 pages); Mr Halsey (A1-A124) and Ms Halsey (B1-B20).

ISSUES

The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act).
Child support legislation is interpreted…

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 Halsey and Halsey (Child support)

Details

AGLC: Halsey and Halsey (Child support) [2021] AATA 5186
Case: [2021] AATA 5186
Decision Date: 4 November 2021

CaseChat Overview and Summary

The matter of *Halsey and Halsey (Child Support)* concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth). The applicant sought to vary the assessed child support payable by the liable parent. The primary issue before the court was whether the liable parent's income, property, and financial resources constituted grounds for a departure from the standard assessment.

The court was required to determine whether the liable parent possessed income, property, or financial resources that were not taken into account by the child support formula, and if so, whether these circumstances warranted a departure from the assessed amount. The court also had to consider whether such a departure would be fair and just to both the liable parent and the child.

The court found that the liable parent had significant financial resources that were not reflected in the child support assessment. Applying the principles of the *Child Support (Registration and Collection) Act 1988*, the court determined that these undisclosed resources constituted a ground for departure. The court reasoned that it was just and equitable to depart from the assessment to ensure the child received appropriate financial support reflecting the liable parent's true capacity. Consequently, the court set aside the original departure determination and varied the child support assessment.

Orders