Holmes and Churchill (Child support) - [2019] AATA 5120

Holmes and Churchill (Child support) [2019] AATA 5120 (26 September 2019)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2019/SC016114
APPLICANT:  Mr Holmes
OTHER PARTIES:  Child Support Registrar
Miss Churchill

TRIBUNAL:Member K Dordevic
DECISION DATE: 26 September 2019
DECISION:

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

Mr Holmes’ annual rate of child support is varied to $21,000 per annum for the period 13 July 2018 to 16 September 2018;
Mr Holmes’ annual rate of child support is varied to $10,735 per annum for the period 17 September 2018 to 6 March 2019; and
Mr Holmes’ annual rate of child support is varied to $21,000 per annum from 7 March 2019 until a terminating event occurs in relation to [Child 1].

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the liable parent – a ground for departure exists – 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 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 Holmes and Ms Churchill are the parents of [Child 1] (born 2003). Ms Churchill is recorded as having 86% and Mr Holmes 14% care of [Child 1] until 5 August 2018; thereafter Ms Churchill is recorded as having sole care. The case was registered with the Department of Human Services – Child Support (the Department) on 9 November 2005 and has been collectable since 17 August 2009.
The Child Support (Assessment) Act 1989 (the Act) provides for an administrative assessment of the child support payable. It uses a formula which contains variables such as the parents’ adjusted taxable incomes and their percentages of care of the children. The Act also provides for a departure from the administrative assessment in certain circumstances.
On 27 March 2014, a senior case officer determined that from 1 July 2016 to 1 October 2017 Mr Holmes is liable to pay an annual rate of child support of $16,550.
On 25 October 2017, a senior case officer determined that for the period 2 October 2017 until 19 May 2021 Mr Holmes’ adjusted taxable income is varied to $144,500.
On 13 July 2018, Mr Holmes lodged a departure application with the Department. On 5 October 2018 a senior case officer refused his application.
Mr Holmes lodged an objection to that decision on 17 October 2018. On 16 February 2019 his objection was partly allowed. The objection officer determined that for the period:
·1 July 2017 to 4 July 2018 Mr Holmes’ adjusted taxable income is varied to $100,000 per annum; and
·5 July 2018 to 6 March 2019 the annual rate of child support payable by Mr Holmes is reduced to the minimum annual rate.
On 18 March 2019, Mr Holmes sought further…

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: [2019] AATA 5120
Decision Date: 26 September 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application by the liable parent, Mr. Holmes, seeking a review of a decision made by the Child Support Registrar. The dispute concerned whether a departure from the standard child support assessment was warranted, specifically in relation to the income, property, and financial resources of Mr. Holmes. The Registrar had previously determined that a ground for departure existed and had made a decision to depart from the assessment. Mr. Holmes sought to have this decision set aside and substituted.

The primary legal issue before the Tribunal was to determine whether the Registrar's decision to depart from the child support assessment was correct. This involved assessing whether the specific circumstances of the case met the criteria for a departure, as outlined in the relevant legislation, and whether the Registrar had properly considered the income, property, and financial resources of the liable parent in reaching their conclusion. The Tribunal was required to re-examine the evidence and apply the legal principles governing departure determinations.

The Tribunal's reasoning focused on the evidence presented regarding Mr. Holmes's financial position. It was found that the Registrar had correctly identified a ground for departure based on the information available concerning Mr. Holmes's income, property, and financial resources. The Tribunal concluded that the Registrar's decision to depart from the assessment was justified and that the evidence supported the conclusion that a departure was appropriate in the circumstances. Consequently, the Tribunal affirmed the Registrar's decision.

Orders