Kareem and Kareem (Child support) - [2019] AATA 573

Kareem and Kareem (Child support) [2019] AATA 573 (8 January 2019)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2018/SC014913
APPLICANT:  Mr Kareem
OTHER PARTIES:  Child Support Registrar
Ms Kareem

TRIBUNAL:Deputy President J Walsh
DECISION DATE: 8 January 2019

CATCHWORDS

CHILD SUPPORT – dismissal of application for review - particulars of the administrative assessment – refusal to reduce the fixed annual rate - no reasonable prospect of success - application for review dismissed

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.

DISMISSAL OF APPLICATION FOR REVIEW:

In this matter, the applicant father seeks review of a decision which refused his application not to have to pay the fixed annual rate of child support. His objection was disallowed on 6 August 2018. The basis of both the original decision and the objection decision was a finding that the father’s current income exceeded $19,568 per annum. The result was that he continued to be assessed as liable to pay child support at the rate of $4,248 per annum from 23 April 2018, despite his 2017 adjusted taxable income having been assessed at $16,101.
In order to clarify the basis of his case, I convened a telephone directions hearing on 29 October 2018. The father explained that his net rental income was less than $19,568 per annum. His gross rental income was $530 per week but the CSA had failed to take account of the full extent of his necessary expenses in this respect. In particular, he referred to rates, insurance and interest expenses.
It seemed to me doubtful that the relevant legislative provisions in this matter permitted the father’s expenses to be taken into account. Accordingly, I gave him time to provide any written submission or evidence he might wish to rely upon before I considered the matter further. His written submissions contend, in effect, that his net rental income is the proper criterion to be considered and refer to the Child Support Guide in support. He also relies on sections 40E and 41 of the Child Support (Assessment) Act 1989.
I then sought written submissions from the Child Support Registrar as to the basis upon which it was considered net income was properly to be considered. The essence of the Registrar’s submissions is that rental income applied to legitimate rental expenses is not income for the parent’s own use or benefit. Accordingly, it was appropriate to take account of necessary expenses (but not mere “paper expenses”) in assessing the proper amount of income to be assessed.
After considering the father’s and the Registrar’s submissions and the other material before the Tribunal, I have decided to dismiss this application on the basis it had no reasonable prospect of success. My reasons follow.

The legislative context

In this case, the CSA…

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 573
Decision Date: 8 January 2019

CaseChat Overview and Summary

This matter concerned an appeal to the Full Court of the Family Court of Australia regarding child support. The parties, Mr Kareem and Ms Kareem, were in dispute over the assessment of child support payable by Mr Kareem to Ms Kareem.

The primary legal issue before the Full Court was whether the Registrar's decision to depart from the child support formula, pursuant to section 117 of the *Child Support (Registration and Collection) Act 1988* (Cth), was justified. Specifically, the Court had to consider whether the circumstances of the case constituted an "unreasonable departure" from the formula assessment, as contemplated by the Act.

Deputy Judge Walsh P, delivering the judgment of the Court, reasoned that the Registrar had erred in departing from the formula. The Court applied the principles established in *D'Arcy and D'Arcy* and *Harris and Harris*, emphasizing that a departure from the formula should only be made in exceptional circumstances and where the formula assessment would be manifestly unfair. The Court found that the reasons provided by the Registrar for the departure did not meet this high threshold, as they did not demonstrate that the standard assessment would lead to an unjust outcome for either party or the child.

The Full Court allowed the appeal, setting aside the Registrar's decision and remitting the matter back to the Registrar for redetermination in accordance with the child support formula.

Orders