Harrison and Harrison (Child support) - [2023] AATA 4002

Harrison and Harrison (Child support) [2023] AATA 4002 (17 October 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/BC025953
APPLICANT:  Mr Harrison
OTHER PARTIES:  Child Support Registrar
Mrs Harrison

TRIBUNAL:Member C Breheny
DECISION DATE: 17 October 2023
DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – departure determination – whether there was a ground for departure – no ground for departure – application to depart is refused – decision under review affirmed

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

Mrs Harrison and Mr Harrison are the separated parents of [Child 1], born February 2008, and [Child 2], born June 2010. A child support case has been registered (for collection) with Services Australia – Child Support (Child Support) since 14 January 2018 and child support is payable on the basis that Mr Harrison and Mrs Harrison have shared care of the children. Mr Harrison was at all relevant times assessed as liable to pay child support to Mrs Harrison.
For the period 1 September 2022 to 17 June 2023 Mr Harrison’s child support liability had been administratively assessed as being $2,716 per annum based on his 2021/22 adjusted taxable income of $74,989 and Mrs Harrison’s provisional income of $54,125.
On 20 August 2022 the administrative assessment was updated, as Mrs Harrison had lodged her income tax return for 2021/22. Mr Harrison’s child support liability increased to $6,314 per annum, based on Mrs Harrison’s 2021/22 adjusted taxable income of $21,138.
On 11 September 2022 Mr Harrison contacted Child Support to apply for a change of assessment on the basis that Mrs Harrison’s earning capacity was not correctly reflected in the assessment. He noted that Mrs Harrison has the ability to earn a much higher income than $21,138.
On 22 December 2022, decision maker (DM) [deleted] decided that no ground to depart from the administrative assessment had been established and did not change the assessment. On 12 January 2023 Mr Harrison objected to the decision and on 24 March 2023 a Child Support objections officer disallowed the objection. The objections office found that Mrs Harrison had additional earning capacity, but it was not just and equitable to depart from the administrative assessment.
On 17 April 2023, Mr Harrison applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal) for an independent review of Child Support’s decision. A hearing into Mr Harrison’s application for review was held on 17 October 2023. Both Mr Harrison and Mrs Harrison attended the hearing by telephone and gave evidence on affirmation.
I had before me the statement and documents provided by Child Support pursuant to subsection 37(1) and section 38AA of the Administrative Appeals Tribunal Act 1975, received on 8 May 2023…

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 4002
Decision Date: 17 October 2023

CaseChat Overview and Summary

The matter of *Harrison and Harrison* concerned an application by the father for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth). The father sought to depart from the child support assessment made by the Registrar, arguing that the assessment was not just and equitable. The decision was made by Member C Breheny in the Child Support Division of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the father had established any of the grounds for departure from a child support assessment as set out in section 117 of the Act. Specifically, the Tribunal had to consider if the circumstances of the case were exceptional and if it would be just and equitable to make a departure determination.

Member Breheny considered the father's submissions regarding his financial circumstances and the child's needs. However, the Tribunal found that the evidence presented did not demonstrate that the assessment was not just and equitable, nor did it establish any of the specific grounds for departure outlined in section 117 of the Act. The Tribunal concluded that the circumstances were not exceptional and that it would not be just and equitable to depart from the assessment. Consequently, the application to depart was refused, and the decision under review was affirmed.

Orders