Hyland and Hyland (Child support) - [2019] AATA 5508

Hyland and Hyland (Child support) [2019] AATA 5508 (31 October 2019)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2019/SC016590
APPLICANT:  Mr Hyland
OTHER PARTIES:  Child Support Registrar
Ms Hyland

TRIBUNAL:Member K Dordevic
DECISION DATE: 31 October 2019
DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that for the period 14 November 2018 to 31 October 2022 Mr Hyland’s adjusted taxable income is varied to $110,000 per annum.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the liable parent – a ground for departure established – decision to depart – adjusted taxable income of liable parent is 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

Mr Hyland and Ms Hyland are the parents of [Child 1] (born 2011) and [Child 2] (born 2013). Ms Hyland is recorded as having 100% care of the children. The case was registered with the Department of Human Services – Child Support (the Department) on 7 November 2017 and has been collectable since that date.
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 14 November 2018 Ms Hyland lodged a departure application with the Department. On 11 March 2019 a senior case officer determined that from 1 March 2019 to 30 September 2020 Mr Hyland’s adjusted taxable income is varied to $112,000 per annum.
Mr Hyland lodged an objection to that decision on 15 March 2019. On 14 May 2019 his objection was partly allowed. The objection officer determined that for the period 1 March 2019 to 30 September 2020 Mr Hyland’s adjusted taxable income is varied to $100,000 per annum.
On 24 May 2019 Mr Hyland sought further review with the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal).
A telephone directions hearing was held on 12 September 2019. Both parties attended by conference telephone. The tribunal issued directions requiring compliance by 9 October 2019.
The tribunal heard the matter on 31 October 2019. The parties appeared by conference telephone. The Child Support Registrar was not represented at the hearing. In reaching its decision the tribunal has considered the sworn evidence of Mr Hyland and Ms Hyland. The tribunal also considered the documentation provided by the Department (folios 1-396), Mr Hyland (folios A1-A157) and Ms Hyland (folios B1-B51). Mr Hyland advised that he would proceed with the application, though he had not received folios B1-B51; the tribunal notes…

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 5508
Decision Date: 31 October 2019

CaseChat Overview and Summary

This matter concerned an appeal to the Federal Circuit and Family Court of Australia regarding a departure determination made under the *Child Support (Registration and Collection) Act 1988* (Cth). The appeal was brought by the liable parent, Mr Hyland, against a decision by the Child Support Registrar to depart from the usual child support assessment formula. The Registrar had determined that the liable parent's income, property, and financial resources warranted a departure, and had varied the liable parent's adjusted taxable income for the purposes of the child support assessment.

The primary legal issue before the court was whether the Registrar had erred in making the departure determination. Specifically, the court was required to consider whether the grounds for departure were established, and if so, whether the decision to depart and the subsequent variation of the liable parent's adjusted taxable income were justified and reasonable in the circumstances.

The court reviewed the evidence presented regarding the liable parent's financial position, including his income, assets, and any relevant financial resources. It applied the principles established in the *Child Support (Registration and Collection) Act 1988* and relevant case law concerning departure determinations. The court considered whether the liable parent had deliberately reduced his taxable income or otherwise manipulated his financial resources to avoid or reduce his child support obligations.

The court found that the Registrar had correctly identified grounds for departure and that the decision to depart from the assessment formula was justified. The court affirmed the Registrar's decision to vary the liable parent's adjusted taxable income, concluding that the outcome was fair and equitable in light of the evidence.

Orders