Harwell and Hawksley (Child support) - [2024] AATA 4123

Harwell and Hawksley (Child support) [2024] AATA 4123 (23 September 2024)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2024/MC027553
APPLICANT:  Mr Harwell
OTHER PARTIES:  Child Support Registrar
Ms Hawksley

TRIBUNAL:Senior Member T Hamilton-Noy
DECISION DATE: 23 September 2024
DECISION:

The Tribunal affirms the decision under review.

CATCHWORDS
CHILD SUPPORT – change of assessment – trust should be considered to be financial resources available to father – parents’ roles are currently reversed – mother’s decision to cease work is justified by her state of health – no grounds for departure established – decision under review affirmed

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 theChild Support (Registration and Collection) Act 1988.

REASONS FOR DECISION

BACKGROUND

Mr Harwell and Ms Hawksley are the separated parents of two children. A case has been registered with Services Australia – Child Support (Child Support) since June 2013 and payments are currently collectable by Child Support. Since 30 November 2023, due to a change in the care arrangements for the children, Ms Hawksley has been the payer of child support and Mr Harwell the payee.
There is an existing AAT decision in place, made on 18 January 2023, which provided (in relevant part) for a departure determination as follows:
·For the period 1 July 2021 until [Child 1] ceases to be an eligible child of the assessment, Mr Harwell’s adjusted taxable income is varied to $575,000;
·For the period 1 January 2023 until [Child 1] ceases to be an eligible child, child support payable by Mr Harwell is increased by $2,800.
On 13 July 2023, Mr Harwell made a departure application on the basis of his income, property and financial resources (called “Reason 8A” by Child Support).
On 18 November 2023, an employee of Child Support refused to change the assessment as no reason for departure was established.
On 29 November 2023, Mr Harwell objected to this decision.
On 16 February 2024, an objections officer of Child Support disallowed the objection.
On 22 February 2024, Mr Harwell made an application to the Administrative Appeals Tribunal for an independent review of Child Support’s decision.
A directions hearing was conducted by the Tribunal on 2 July 2024, in which Mr Harwell participated by MS Teams audio. Ms Hawksley did not participate in the directions hearing. Following the directions hearing, the Tribunal issued directions to the parties for the provision of further documents.
The hearing was held on 15 August 2024, on which date Mr Harwell and Ms Hawksley both participated by MS Teams audio and gave evidence on affirmation. At the hearing, the Tribunal had before it documents provided by Child Support (1 to 601), documents provided by Mr Harwell (A1 to A107) and documents provided by Ms Hawksley (B1 to B6). Copies of all documents were provided to the parties prior to…

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 4123
Decision Date: 23 September 2024

CaseChat Overview and Summary

This matter concerned an application for a change of assessment of child support made by the father, Mr Harwell, against the mother, Ms Hawksley. The dispute centred on whether a trust fund established by the mother's parents should be considered a financial resource available to the father, and whether the mother's decision to cease full-time employment was justified. The application was heard by Senior Member T Hamilton-Noy of the Child Support Division of the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were whether the trust fund constituted a financial resource available to the father for the purposes of child support assessment, and whether the mother's cessation of employment was a justifiable reason for a departure from the standard assessment. The Tribunal was required to consider the relevant provisions of the *Child Support (Registration and Collection) Act 1988* concerning the definition of financial resources and the grounds for departure from a child support assessment.

The Tribunal reasoned that the trust fund, while established by the mother's parents, was not directly controlled or accessible by the father, and therefore could not be considered a financial resource available to him for child support purposes. Regarding the mother's employment status, the Tribunal accepted that her decision to cease full-time work was justified by her state of health, which prevented her from continuing in her previous role. Consequently, the Tribunal found no grounds for a departure from the existing assessment.

The decision under review was affirmed.

Orders