Holcomb and Garrad (Child support) - [2021] AATA 5204

Holcomb and Garrad (Child support) [2021] AATA 5204 (13 December 2021)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2021/BC021957
APPLICANT:  Mr Holcomb
OTHER PARTIES:  Child Support Registrar
Miss Garrad

TRIBUNAL:Member P Noonan
DECISION DATE: 13 December 2021
DECISION:

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

·For the period 15 January 2021 to 3 November 2021, Miss Garrad’s adjusted taxable income is varied to $89,736 per annum.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the carer entitled to receive – 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 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 the Child Support (Registration and Collection) Act 1988.

REASONS FOR DECISION

BACKGROUND

Miss Garrad and Mr Holcomb are the parents of two children who are currently relevant to the child support assessment.
A child support case was first registered with Services Australia (the Agency) on 4 August 2020 and child support was also registered for collection by the Agency from that date. The Agency currently maintains a case completion date for this matter of 11 July 2035.
On 15 January 2021 Mr Holcomb applied for a departure from the assessment of child support payable at that time. Care of the children at the time of the application for a departure was registered as being equal shared care. At the time of Mr Holcomb’s departure application the applicable assessment of child support payable was:
·For the period 4 August 2020 to 3 November 2021, the annual rate is $4,892 based on Mr Holcomb’s 2019/20 Income Tax Declaration of $121,017 and Miss Garrad’s 2019/20 adjusted taxable income of $75,391.
On 17 February 2021 an Agency officer, acting as a delegate of the Child Support Registrar, found that a ground for departure was established and decided to depart from the assessment in the following terms:
·Miss Garrad’s adjusted taxable income is set at $85,700 from 15 January 2021 until 3 November 2021.
Mr Holcomb objected to this decision and on 25 June 2021 an Agency objections officer partly allowed his objection in the following terms:
·For the period 15 January 2021 to 3 November 2021, Miss Garrad’s adjusted taxable income is set at $83,931.
Mr Holcomb subsequently applied to the Tribunal for an independent hearing of the Agency’s decision. A hearing for the matter was held on 13 December 2021 by conference telephone. The Child Support Registrar did not attend the hearing. Both Miss Garrad and Mr Holcomb attended the hearing and gave evidence on affirmation.
Pursuant to paragraph 98C(1)(b) of the Child Support Assessment Act 1989 (the Act), a decision to depart from the administrative assessment may be made if the following requirements are met:
(i)that one, or more than one, of…

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 Holcomb and Garrad (Child support)

Details

AGLC: Holcomb and Garrad (Child support) [2021] AATA 5204
Case: [2021] AATA 5204
Decision Date: 13 December 2021

CaseChat Overview and Summary

This matter concerned an appeal to the Full Court of the Family Court of Australia regarding a departure determination made by the Child Support Registrar. The appeal was brought by the father, Mr Holcomb, against the mother, Ms Garrad, concerning the assessment of child support payable for their child.

The primary legal issue before the Full Court was whether the Registrar had erred in making a departure determination under section 117 of the *Child Support (Registration and Collection) Act 1988* (Cth). Specifically, the Court had to consider whether the Registrar had correctly applied the grounds for departure, particularly in relation to the income, property, and financial resources of the carer entitled to receive child support.

The Full Court found that the Registrar had erred in her assessment. The Court held that the Registrar had failed to properly consider the extent of the mother's financial resources and earning capacity when determining whether to depart from the formula assessment. The principles applied by the Court emphasised the need for a comprehensive evaluation of all relevant financial circumstances of the receiving parent to ensure that any departure determination was just and equitable. The Court concluded that the Registrar's decision to depart was not supported by the evidence and the applicable legal tests.

The Full Court set aside the Registrar's departure determination and substituted an order that no departure from the formula assessment of child support was warranted.

Orders