Mayhall and Wellstone (Child support) - [2024] ARTA 429

Mayhall and Wellstone (Child support) [2024] ARTA 429 (16 December 2024)

Applicant/s: Ms Mayhall

Respondent: Child Support Registrar

Other Parties: Mr Wellstone

Tribunal Number: 2024/BC028017
Tribunal: Member S Letch
Place:Brisbane
Date:16 December 2024

Decision:The Tribunal affirms the decision under review.

CATCHWORDS

CHILD SUPPORT – particulars of the administrative assessment – income, property and financial resources – earning capacity – diagnosed incapacity for work – grant of disability support pension – decision under review affirmed

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.

Statement of Reasons

BACKGROUND

Ms Mayhall and Mr Wellstone are the parents of [Child 1] (born June 2006) and [Child 2] (born June 2010). Mr Wellstone has been assessed by Child Support as liable to pay child support. Ms Mayhall seeks a review of an objection decision which disallowed her objection to a “change of assessment” decision of 9 March 2024.
By way of background, it is convenient to set out some extracts from the objections officer’s decision letter dated 10 May 2024:
…
The child support assessment under review is as follows:-
For the period 1 August 2023 to 31 October 2024, Mr Wellstone is to pay $nil per annum in child support based on his 2023/2024 estimated income of $nil. Ms Mayhall is assessed on her 2022/2023 adjusted taxable income (ATI) of $111,309.
DECISION UNDER REVIEW
On 11 January 2024, Ms Mayhall applied for a change to the assessment on the basis of Reason 8A and Reason 8B.
…
On 9 March 2024, a Change of Assessment (CoA) Decision Maker (DM) refused to change the assessment as a Reason was not established.
…
A child support assessment is generally calculated using the parents' most recent taxable income. Services Australia will be satisfied there are special circumstances if a parent's adjusted taxable income is not appropriately reflected in the assessment, rendering it unfair.
Mr Wellstone is assessed on an estimated income of $nil. There is no evidence he is earning an income at this time and he is supported by his wife.
When Mr Wellstone lodges his relevant tax return, his estimated income will be compared against his actual income. If the actual income is less than or equal to the estimated income, the records will be noted to show that no further action is required. If Mr Wellstone‘s actual income is more than his estimated income, the assessment will be amended using his actual income.
In considering the above, I am satisfied the agency`s automatic reconciliation process will identify any discrepancies with Mr Wellstone‘s estimate and special circumstances do not exist under Reason 8A.
Reason 8A is not established.
In order to establish Reason 8B I must be satisfied that the child support assessment is unfair
because of Mr Wellstone's earning capacity.
…
In assessing a parent s capacity to…

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: [2024] ARTA 429
Decision Date: 16 December 2024

CaseChat Overview and Summary

In this matter, Ms Mayhall sought a review of the decision by the Child Support Registrar to disallow her objection to a change of assessment decision. Ms Mayhall argued that the assessment did not fairly reflect the financial situation of the parties and sought to establish a ground to depart from the administrative assessment of child support. Specifically, she argued that Mr Wellstone's earning capacity was not appropriately reflected in the assessment. The Registrar had determined that Mr Wellstone's decision not to work was justified by his state of health. The Tribunal affirmed the decision under review, finding that there was no ground to depart from the administrative assessment. The Tribunal found that while Mr Wellstone had ample opportunity to work since resigning from his employment in October 2021, his decision not to work was justified on the basis of his state of health, which had been confirmed by Centrelink in its decision to grant him a disability support pension. The Tribunal did not accept Ms Mayhall's contention that Mr Wellstone's health conditions were "fake". It found that the evidence supported Mr Wellstone's claims about his mental health, including the decision by Centrelink to assess him as eligible for DSP. The Tribunal did not find it necessary to consider whether it was a major purpose in Mr Wellstone's decision-making to affect the child support assessment. Given the conclusion that there was no ground to depart from the administrative assessment, it was not necessary for the Tribunal to consider whether a departure would be just and equitable and otherwise proper. As the Tribunal reached the same conclusion as the authorised review officer, the decision under review will be affirmed. The decision will stand as made by the Registrar.

Orders