Ousey and Haines (Child support) - [2023] AATA 4464

Ousey and Haines (Child support) [2023] AATA 4464 (13 December 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/PC026062
APPLICANT:  Mr Ousey
OTHER PARTIES:  Child Support Registrar
Ms Haines

TRIBUNAL:Member S Hoffman
DECISION DATE: 13 December 2023
DECISION:

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

For the period from 1 January 2023 to 15 December 2023 the following applies:
oMr Ousey’s adjusted taxable income is varied to $78,713.
oThe annual rate of child support otherwise payable is increased by $1,200, being Mr Ousey’s contribution to the costs of [Child 1’s] special needs.
For the period from 16 December 2023 to 30 November 2025 the following applies:
oMr Ousey’s adjusted taxable income is varied to $57,200.

oThe annual rate of child support otherwise payable is increased by $1,200, being Mr Ousey’s contribution to the costs of [Child 1’s] special needs.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the liable parent – a ground for departure established – decision to depart - 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

The child support case relevant to this review was registered with Services Australia – Child Support (Child Support) on 30 April 2020. Child Support has been involved with the collection of child support for [Child 1] and [Child 2], aged 16 and 13 years old respectively, since then. According to Child Support’s records, the mother has provided 100% of the children’s care.
According to assessment notices issued by Child Support during 2022, from 1 January 2023 the father would have been required to pay an annual rate of child support of $3,042 to the mother, based on his 2021–22 taxable income of $16,925 and the mother’s taxable income for the same year of $76,418.
Prior to 1 January 2023, the father had been assessed to pay child support of $17,752 a year based on a previous change of assessment (COA) decision, made on 3 August 2020. That decision varied the father’s adjusted taxable income to $78,713 a year and increased the rate of child support payable by him by $4,676.[1]
[1] To be clear, the figure of $17,752 included the additional amount of $4,676.
On 12 September 2022, the mother applied for a COA from 1 January 2023.

An original decision following the COA application was made on 6 January 2023. It varied the father’s adjusted taxable income to $55,000 for the period 1 January 2023 to 31 December 2024. In addition, the annual rate of child support payable by the father was increased by $1,200 as his contribution to the cost of [Child 1’s] special needs (the original decision).
On 24 January 2023, the…

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: [2023] AATA 4464
Decision Date: 13 December 2023

CaseChat Overview and Summary

This matter concerned an application for review of a departure determination made by the Child Support Registrar. The applicants, Ousey and Haines, sought to set aside a decision that had departed from the usual child support assessment. The dispute centred on the Registrar's assessment of the income, property, and financial resources of the liable parent.

The primary legal issue before the court was whether the Child Support Registrar had erred in making the departure determination. Specifically, the court was required to consider whether a ground for departure had been established under the relevant legislation and, if so, whether the decision to depart was justified based on the evidence before the Registrar.

The court found that a ground for departure had indeed been established, as the liable parent possessed income, property, and financial resources that were not adequately reflected in the standard assessment. However, the court concluded that the Registrar's decision to depart was not the correct or preferable one in the circumstances. Consequently, the court set aside the Registrar's departure determination and substituted its own decision.

Orders