Horler and Horler (Child support) - [2021] AATA 4797

Horler and Horler (Child support) [2021] AATA 4797 (27 October 2021)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2021/SC021611
APPLICANT:  Mrs Horler
OTHER PARTIES:  Child Support Registrar
Mr Horler

TRIBUNAL:Member S Hoffman
DECISION DATE: 27 October 2021
DECISION:

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

From 25 March 2020 to 30 June 2020, Mr Horler’s adjusted taxable income is varied to $57,000.
From 1 July 2020 to 30 June 2021, Mr Horler’s adjusted taxable income is varied to $71,000.
From 1 July 2021 to 31 October 2022, Mr Horler’s adjusted taxable income is varied to $72,850.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the liable parent – ground to depart established – 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 review is about the child support assessment in respect of [Child 1], [Child 2] and [Child 3], aged 14, 9 and 8 years old respectively.
The case was registered with Services Australia – Child Support (the CSA) on 29 March 2017. The CSA has been involved with the collection of child support since 29 April 2020. Initially the mother was assessed to pay child support to the father but following change of assessment decisions, the father is required to pay child support to the mother.
On 25 March 2020 the mother applied for a change of assessment. As of that date, the mother was assessed to pay child support of $1,376 a year, based on her estimate of income for 2019/20 of $40,325 and an adjusted taxable income for 2017/18 of $22,136 for the father. The care of [Child 2] and [Child 3] was shared equally between the parents and [Child 1] was in the mother’s 100% care.

On 26 May 2020, a senior case officer from the CSA decided to vary the father’s adjusted taxable income to $66,521 for the period from 1 October 2019 to 30 September 2021 (the original decision).
On 16 February 2021, the father objected to the original decision. His objection was lodged outside the 28-day timeframe for lodging objections. The father requested and was granted an extension of time (EOT) by the CSA to lodge his objection. The EOT was granted on 19 March 2021.
On 24 May 2021, an objections officer from the CSA decided to vary the father’s adjusted taxable income to $67,000 for the period from 25 March 2020 to 31 December 2021.
On 27 May 2021, the mother lodged an application for review with the Administrative Appeals Tribunal (AAT).
A directions hearing was held on 22 September 2021 after which directions were issued. The main hearing was held on 27 October 2021. 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.

Keep reading for free

Create a free CaseChat account to read Horler and Horler (Child support) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] AATA 4797
Decision Date: 27 October 2021

CaseChat Overview and Summary

The case of *Horler and Horler* concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth). The applicant sought to depart from the assessed child support amount, arguing that the liable parent possessed income, property, and financial resources that were not adequately reflected in the assessment. The matter came before the court for review of a previous decision.

The central legal issue before the court was whether the grounds for a departure determination were established, specifically concerning the income, property, and financial resources of the liable parent. The court was required to assess whether the existing child support assessment was unfair due to these circumstances and whether a departure was warranted to ensure a just and equitable outcome for the child.

The court considered the evidence presented regarding the liable parent's financial position. It applied the principles of the *Child Support (Registration and Collection) Act 1988* relating to departure determinations, which allow for adjustments to assessed child support amounts in specific circumstances, including where a parent's actual financial capacity significantly exceeds their assessed income. The court found that the grounds for departure were established. Consequently, the court set aside the previous decision and substituted its own determination.

Orders