Muarken and Ayache (Child support) - [2024] AATA 2532

Muarken and Ayache (Child support) [2024] AATA 2532 (13 May 2024)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/PC026968
APPLICANT:  Mr Muarken
OTHER PARTIES:  Child Support Registrar
Ms Ayache

TRIBUNAL:Member S Irvine
DECISION DATE: 13 May 2024
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that:

For the period 21 November 2022 to 30 June 2023 the adjusted taxable income for Mr Muarken is varied to $65,681;

For the period 1 July 2023 to 30 November 2024 the adjusted taxable income for Mr Muarken is varied to $93,360;

For the period 1 December 2022 to 30 November 2024 the annual rate of child support payable by Mr Muarken is increased by $1,536 in respect of special needs for [Child 1].

CATCHWORDS

CHILD SUPPORT – departure determination – ground for departure – special circumstances – financial resources – cost of maintaining the children – 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 omitted 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 Muarken and Ms Ayache are the parents of [Child 2] (born January 2007) and [Child 1] (born October 2008). A child support assessment for the children commenced on 27 September 2019. Mr Muarken is assessed as liable to pay child support to Ms Ayache. Care of the children is reflected in the assessment as 100% to Ms Ayache.
On 18 October 2022 Services Australia – Child Support (Child Support) issued a notice of assessment for a child support period commencing on 1 September 2022. Pursuant to that assessment, Mr Muarken was required to pay an annual rate of child support of $1,650, based on Mr Muarken’s 2021/2022 adjusted taxable income of $33,071 and Ms Ayache’s 2021/2022 adjusted taxable income of $136,613.
On 21 November 2022 Ms Ayache made an application for a departure determination, seeking an increase in child support payments due to the special needs of the children, and due to Mr Muarken’s income, assets and financial resources. Mr Muarken did not agree that there should be a change to the administrative assessment.
On 15 May 2023 a Child Support decision-maker decided to depart from the formula assessment and made the following decision:
· In the period 1 November 2022 to 31 December 2024 Mr Muarken’s adjusted taxable income was set at $74,464; and
· In the period 1 May 2023 to 30 April 2024 the annual rate of child support otherwise payable by Mr Muarken was increased by $3,840.
This resulted in a child support assessment under which Mr Muarken was required to pay an annual rate of child support of $12,178 in the period from 1 November 2022 to 30 April 2023, and an annual rate of child support of $16,018 in the period from 1…

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] AATA 2532
Decision Date: 13 May 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application by Muarken (the applicant) to set aside a child support assessment and substitute a departure determination. The dispute concerned the financial resources available to Ayache (the respondent) and the costs associated with maintaining the subject children, with the applicant arguing that these factors constituted special circumstances justifying a departure from the standard assessment.

The primary legal issue before the Tribunal was whether the applicant had established "special circumstances" under section 117 of the *Child Support (Registration and Collection) Act 1988* (Cth) that warranted a departure from the child support assessment. This required the Tribunal to consider the financial resources of both parties and the actual costs of maintaining the children.

Member S Irvine found that the applicant had not discharged the onus of proving special circumstances. The Tribunal's reasoning focused on the applicant's failure to demonstrate that the respondent possessed financial resources beyond those already considered in the assessment, or that the costs of maintaining the children were so exceptional as to fall outside the scope of the standard assessment. The Tribunal applied the principles governing departure applications, emphasising the need for compelling evidence of circumstances that are out of the ordinary.

The Tribunal affirmed the original child support assessment and dismissed the applicant's application to set aside the assessment and substitute a departure determination.

Orders