Peradon and Peradon (Child support) - [2024] AATA 2768

Peradon and Peradon (Child support) [2024] AATA 2768 (6 June 2024)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/SC026908
APPLICANT:  Ms Peradon
OTHER PARTIES:  Child Support Registrar
MrPeradon

TRIBUNAL:Senior Member K Dordevic
DECISION DATE: 6 June 2024
DECISION:

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

Ms Peradon’s self-support amount is increased by $7,781 from 8 February 2023 until a terminating event occurs;
Mr Peradon’s annual rate of child support is increased by $27,600 for the period 1 December 2022 to 30 November 2023; and
Mr Peradon’s adjusted taxable income is varied to:
a.$82,524 for the period 8 February 2023 to 31 December 2023; and
b.$85,389 for the period 1 January 2024 until a terminating event occurs.

CATCHWORDS
CHILD SUPPORT – change of assessment – there are special circumstances – special needs of one child – mother does not have an unused earning capacity – mother’s medical condition – unreasonable to vary the mother’s adjusted taxable income – just and equitable – earning capacity – father’s adjusted taxable income is varied – 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 theChild Support (Registration and Collection) Act 1988

REASONS FOR DECISION

BACKGROUND

The Child Support (Assessment) Act 1989 (the Act) provides for an administrative assessment of the child support payable. It uses a formula which contains variables such as the parents’ adjusted taxable incomes and their percentages of care of the children. The Act also provides for a departure from the administrative assessment in certain circumstances.
Ms Peradon (the mother) and Mr Peradon (the father) are the parents of three children, [Child 1] (born [date] 2003), [Child 2] (born [date] 2005) and [Child 3] (born [date] 2006). This case was first registered with Services Australia – Child Support (Child Support) on 4 April 2022 and has been collected by Child Support from 21 April 2022.
For the purposes of the Child Support assessment the children are recorded as being in the mother’s 100% care. [Child 2] (hereafter referred to as the older child) was no longer a child of the assessment on 16 December 2023. The administrative assessment will end on 6 November 2024, the day before [Child 3] (hereafter referred to as the younger child) turns 18 years of age. The Tribunal shall refer to [Child 2] and [Child 3] collectively as the children.
The mother lodged a departure application on 8 February 2023. On 6 July 2023 a senior case officer determined that for the period:
·8 February 2023 to 2 June 2023 the father’s annual rate of child support was increased by $10,000; and
·8 February 2023 to 31 October 2024 the father’s adjusted taxable income was varied to $131,000.
The father lodged a timely objection to that decision and 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.

Continue reading Peradon and Peradon (Child support)

Details

AGLC: Peradon and Peradon (Child support) [2024] AATA 2768
Case: [2024] AATA 2768
Decision Date: 6 June 2024

CaseChat Overview and Summary

This matter concerned a review of a child support assessment between Mr. Peradon and Ms. Peradon. The dispute centred on whether there were special circumstances warranting a departure from the administrative assessment, specifically in relation to the special needs of one of the children. The case was heard by Senior Member K Dordevic.

The court was required to determine two primary issues. Firstly, whether any of the grounds for departure from the administrative assessment, as outlined in section 117(2) of the relevant Act, existed. Secondly, if a ground for departure was established, whether it would be just and equitable, and otherwise proper, to make a particular determination under Part 7 of the Act. A specific ground for departure considered was subparagraph 117(2)(b)(ia), which relates to the special needs of a child significantly affecting the cost of maintenance in the special circumstances of the case.

The court applied the principles established in *Lightfoot and Hampson* and *Gyselman and Gyselman*. In *Lightfoot and Hampson*, the Full Family Court defined "special needs" as those necessary or desirable for a child's welfare and beyond the scope of the standard child support formula, potentially including disabilities or special talents. *Gyselman and Gyselman* further clarified that "special circumstances" require facts that are out of the ordinary. The court also considered the mother's medical condition and earning capacity, noting it was unreasonable to vary her adjusted taxable income. The father's adjusted taxable income was varied.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The matter was deferred to allow the Tribunal to issue an order pursuant to subsection 95J(1) of the Child Support (Registration and Collection) Act 1988 (the Registration Act), asking that the Child Support Registrar exercise the Registrar’s powers under section 161 of the Act or section 120 of the Registration Act to obtain the information and/or documents listed below: NSW Long Service Leave Corporation·A statement, with supporting documentation, evidencing Mr Peradon’s (DOB [date]) entitlement to long service leave, including details of gross amounts and number of days he is entitled to. A response was received on 8 May 2024. The documents (marked folios C1 to C4) were exchanged with the mother and the father who were both invited to provide written submissions in response. On 13 May 2024 the Tribunal issued an order, pursuant to subsection 95H(1) of the Registration Act, to GIO Insurance to provide by close of business 24 May 2024:A copy of all compensation applications lodged by Mr Peradon from 4 April 2022 to date, as well as all relevant documents outlining all payments that Mr Peradon is eligible for or received, including payments for loss of earnings, medical, hospital and rehabilitation payments, return to work assistance payments and work injury damages. On 16 May 2024 the father provided written submissions and additional documents (marked folios B181 to B194). On 28 May 2024 GIO provided its response to the statutory notice (marked folios D1 to D15). The Tribunal reached its decision on 6 June 2024. The statutory provisions relevant to this review are outlined in section 98C of the Act, which states that a decision to depart from the administrative assessment may be made if the following three requirements are met:(i)that one, or more than one, of the grounds for departure referred to in subsection 117(2) exists; and(ii)that it would be:(A)just and equitable as regards the child, the liable parent, and the carer entitled to child support; and(B)otherwise proper;to make a particular determination under this Part … Therefore, the issues which arise in this case are:· Does a ground exist for departure from the administrative assessment of child support? And, if so· Would it be just and equitable and otherwise proper to make a particular determination? Subparagraph 117(2)(b)(ia) of the Act provides a ground for departure if, in the special circumstances of the case, the cost of maintaining the child are significantly affected because of the child’s special needs. The term ‘special needs’ is not defined in the Act. In the matter of Lightfoot and Hampson (1996) 20 Fam LR 69, the Full Family Court stated that needs are special if they are necessary or desirable for that child’s welfare and outside the normal needs of a child that is catered for within the formula. The Court went on to note that a special need can include a disability or a special talent or ability of the child. In Gyselman and Gyselman (1992) FLC 92-279 the Full Family Court indicated that for there to be special circumstances, the facts of the case must establish something which is special or out of the ordinary.