Hezon and Hezon (Child support) - [2018] AATA 3062

Hezon and Hezon (Child support) [2018] AATA 3062 (4 July 2018)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2017/MC012841
APPLICANT:  Mr Hezon
OTHER PARTIES:  Child Support Registrar
Mrs Hezon

TRIBUNAL:Member S Lewis
DECISION DATE: 04 July 2018
DECISION:

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

· For the period 1 January 2017 to 30 September 2017, the adjusted taxable income of Mr Hezon is varied to $105,000; and
· For the period 1 January 2017 to 30 September 2017, the adjusted taxable income of Mrs Hezon is varied to $41,600.

CATCHWORDS
Child support - Departure determination - Income, property and financial resources of both parents - A ground for departure exists in relation the liable parent - No legal duty to maintain another person - Decision to depart - Adjusted taxable incomes of both parent varied - 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 application for review has been brought by Mr Hezon who disagrees with a decision made by the Department of Human Services, Child Support (the Department).
Mrs Hezon and Mr Hezon are the parents of the children [Child 1] (born May 2000) and [Child 2] (born May 2006). The Department records that Mrs Hezon currently has 100% care of the children and Mr Hezon has 0%. Mr Hezon is the parent liable to pay child support.
On 8 February 2017 Mrs Hezon applied to the Department for an increase to the assessed rate of child support on the ground that in the special circumstances of the case the administrative assessment results in an unjust and inequitable level of child support because of Mr Hezon’s income, property, financial resources and earning capacity.
There was a previous departure determination made on 15 May 2015 in which Mr Hezon’s adjusted taxable income was varied to $125,000 in the period 2 January 2015 to 31 December 2016. Mr Hezon also applied for a change of assessment on 6 June 2016 which was refused on the basis that no ground for departure had been established.
At the time of the current application, Mr Hezon was assessed to pay an annual rate of child support of $2,746. This amount is the fixed annual rate; the administrative assessment was based on Mr Hezon’s income estimate of $16,294 and Mrs Hezon’s 2015/2016 provisional income of $7,511. The estimate applied from 31 January 2017. Mr Hezon lodged a further estimate of income of $0 on 28 April 2017. As a result, he was assessed to pay $414, the minimum rate of child support.
On 1 May 2017, Mr Hezon lodged a response to the current application and cross application. He sought a departure from 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.

Continue reading Hezon and Hezon (Child support)

Details

AGLC: Hezon and Hezon (Child support) [2018] AATA 3062
Case: [2018] AATA 3062
Decision Date: 4 July 2018

CaseChat Overview and Summary

This matter concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth) brought by the applicant parent against the respondent parent. The dispute centred on the assessment of child support payable for the parties' child. The decision was made by S Lewis M in the [Court Name].

The primary legal issue before the court was whether a ground for departure existed in relation to the liable parent, specifically concerning their income, property, and financial resources. The court was required to determine if the liable parent had a legal duty to maintain another person, and if so, whether this duty, or the circumstances surrounding it, warranted a departure from the standard child support assessment.

In reaching its decision, the court considered the adjusted taxable incomes of both parents. The reasoning applied involved an assessment of the liable parent's financial capacity and any legal obligations they might have towards other individuals. The court found that a ground for departure did exist and proceeded to vary the adjusted taxable incomes of both parents as part of its determination.

Consequently, the court set aside the original decision and substituted it with its own determination regarding child support.

Orders