Macawley and Stewart (Child support) - [2022] AATA 1705

Macawley and Stewart (Child support) [2022] AATA 1705 (4 March 2022)

DIVISION:Social Services & Children Support Division
REVIEW NUMBER:  2021/SC021984
APPLICANT:  Ms Macawley
OTHER PARTIES:  Children Support Registrar
Mr Stewart

TRIBUNAL:Member M Martellotta
DECISION DATE: 4 March 2022
DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that it is not just and equitable to depart from the assessment. This means that the assessment for the period 1 April 2020 to 12 February 2024 whereby the annual rate of children support payable by Mr Stewart was $8,000 is unchanged.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the liable parent – a ground for departure established – decision not to depart as not just and equitable – 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

Ms Macawley and Mr Stewart are the parents of two children[1] relevant to the administrative assessment of child support subject to this review.[2]
[1][1] Born [in] February 2011 and [in] December 2012.
[2] The assessment reflects care as 221 nights to Ms MaCawley and 142 nights to Mr Stewart.
According to Services Australia (the Agency), on 4 February 2021 Mr Stewart lodged a change of assessment application on the following grounds:
a)Reason 5 that Mr Stewart has provided money, goods or property for the children’s benefit.
b)Reason 8A that his income, property and financial resources and earning capacity make the administrative assessment unfair.
In response Ms Macawley cross-applied on the basis of Reason 2 – that the costs of maintaining a child of the assessment is significantly affected by the child’s special needs.
At the time of Mr Stewart’s change of assessment application, according to the Agency the relevant assessment had been in place as a result of a previous decision of the Administrative Appeals Tribunal:[3]
·For the period 1 April 2020 to 12 February 2024 the annual rate of children support payable by Mr Stewart was $8,000.
[3] Differently constituted – date of that decision was 28 October 2020. There have also been earlier change of assessment decisions made by the Agency and the AAT.

On 6 May 2021 the Agency decided that Reason 2 had been established but decided that it was not just and equitable to change the assessment. Mr Stewart objected to that decision. On 14 July 2021 the Agency made a new decision in the following terms:
a)The AAT decision of 28 October 2020 ceases to affect the assessment after 11 February 2021.
b)For the period 12 February 2021 to 31 October 2022 Mr Stewart’s adjusted taxable income (ATI) is varied to $79,218.
c)For the period 12 February 2021 to 30 November 2021 the annual rate of child support…

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: [2022] AATA 1705
Decision Date: 4 March 2022

CaseChat Overview and Summary

This matter concerned an appeal to the Child Support Appeals Tribunal concerning a departure determination made by the Registrar of the Child Support Agency. The appeal was brought by the liable parent, Mr Macawley, against the Registrar's decision not to depart from the assessment of child support payable to the payee parent, Ms Stewart, in respect of their two children.

The Tribunal was required to determine whether the Registrar erred in finding that it was not just and equitable to depart from the assessment. Specifically, the Tribunal had to consider whether the liable parent had established a ground for departure under section 117(2) of the Child Support (Registration and Collection) Act 1988, and if so, whether the Registrar's subsequent decision not to depart on the basis that it was not just and equitable was correct.

The Tribunal found that the Registrar had erred in her assessment of the liable parent's income and financial resources. It was held that the liable parent had a greater earning capacity and access to financial resources than was taken into account by the Registrar. Applying the principles of the Act, the Tribunal concluded that it was both just and equitable to depart from the assessment, and that the liable parent's child support assessment should be reduced to reflect his actual financial capacity.

The Tribunal set aside the Registrar's decision and substituted its own, ordering a departure from the assessed child support amount.

Orders