Lister and Lister (Child support) - [2018] AATA 3289

Lister and Lister (Child support) [2018] AATA 3289 (31 July 2018)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2017/SC013027
APPLICANT:  Mr Lister
OTHER PARTIES:  Child Support Registrar
Miss Lister

TRIBUNAL:Member W Kennedy
DECISION DATE: 31 July 2018
DECISION:

The decision under review is affirmed.

CATCHWORDS

Child support - Departure determination - Income and financial resources of the liable parent - Business income - Ground for departure established - Adjusted taxable income of the liable parent varied - Decision under review affirmed

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 concerns an application for a departure from the formula assessment of child support. Mr Lister and Miss Lister are the parents of one child, [Child 1], who was born in 2002. There has been a child support assessment in place for the children made by the Child Support Agency of the Department of Human Services (the Department) since 21 September 2009. From 3 March 2017 the assessment was based on Miss Lister having 72% care and Mr Lister having 28% care of [Child 1].
On 13 February 2017 Miss Lister applied to the Department for a departure from the formula assessment of child support based on Reason 5 (payments made by the liable parent) and Reason 8A (the income, property and financial resources of one or both of the parents). On 23 February 2017 Miss Lister withdrew her application in relation to Reason 5. Miss Lister asserted that the income used in the assessment for Mr Lister was not a true indication of his financial resources. She said that because he is self-employed the child support assessment should be based on the broad evidence of his income.
Prior to the original decision, for the period from 1 March 2017 to 15 May 2017, Mr Lister was assessed to pay an annual rate of child support of $4,432.00, based on his adjusted taxable income (ATI) of $49,106.00 and Miss Lister’s estimated income of $13,557.00. For the period from 16 May 2017 to 30 June 2017 Mr Lister was assessed to pay an annual rate of child support of $2,319.00, based on his estimated income of $37,021.00 and Miss Lister’s estimated income of $13,557.00.
On 28 June 2017 a delegate of the Child Support Registrar considered Miss Lister’s departure application and decided that Reason 8A had been established. The delegate decided to set Mr Lister’s ATI at $110,000.00 for the period from 13 February 2017 to 4 March 2020 or until there is a terminating event.
On 10 July 2017 Mr Lister lodged an objection to that decision. In his application he stated that no assessment should be made until after he had lodged his income tax return. On 21 August 2017 a Department objections…

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: [2018] AATA 3289
Decision Date: 31 July 2018

CaseChat Overview and Summary

This matter concerned an appeal by the liable parent, Mr Lister, against a departure determination made by the Child Support Registrar. The dispute centred on the assessment of Mr Lister's income for child support purposes, specifically his business income, and whether the Registrar's decision to vary his adjusted taxable income was justified. The appeal was heard by W Kennedy M.

The primary legal issue before the court was whether the Child Support Registrar had erred in making a departure determination under section 117 of the *Child Support (Registration and Collection) Act 1988* (Cth). This required the court to consider whether the Registrar had correctly identified and applied the grounds for departure, particularly in relation to the liable parent's income and financial resources derived from his business. The court also had to determine if the adjusted taxable income attributed to Mr Lister was a fair reflection of his capacity to pay child support.

The court affirmed the Registrar's decision, finding that the ground for departure was established. The Registrar had properly considered the income and financial resources of Mr Lister, including the income generated by his business. The court was satisfied that the adjusted taxable income determined by the Registrar accurately reflected Mr Lister's earning capacity and was therefore a sound basis for calculating child support obligations. The decision under review was affirmed.

Orders