Petralia and Petralia (Child support) - [2021] AATA 1974

Petralia and Petralia (Child support) [2021] AATA 1974 (27 April 2021)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2020/MC020015
APPLICANT:  Mr Petralia
OTHER PARTIES:  Child Support Registrar
Mrs Petralia

TRIBUNAL:Member R Anderson
DECISION DATE: 27 April 2021
DECISION:

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

The adjusted taxable income of Mr Petralia is varied to $75,000 in respect of the period 1 January 2020 to 30 September 2020;
The adjusted taxable income of Mr Petralia is varied to $80,000 in respect of the period 1 October 2020 to 30 September 2022; and
The adjusted taxable income of Mr Petralia is varied to $85,000 in respect of the period 1 October 2022 until a terminating event occurs in respect of the child support assessment of [Child 3].

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the liable parent – business income – 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 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

Mr Petralia and Mrs Petralia are the separated parents of [Child 1], [Child 2] and [Child 3]. [Child 1] ceased to be a child of the assessment in November 2018. While [Child 2] is currently recorded as ceasing to be a child of the assessment from 24 June 2020, advice from Services Australia – Child Support (the Agency) at the time of writing is that the objections officer’s decision in respect of the objection by Mr Petralia on this issue is yet to be made. This issue is not before the tribunal. It is the Agency who has had responsibility for the collection of child support from Mr Petralia from the outset.
The child support liability is generally calculated in accordance with the administrative assessment, as provided in the Child Support (Assessment) Act 1989 (the Act). The administrative assessment is generally based on the income recorded by each parent in their most recently completed tax returns, as lodged with the Australian Taxation Office (ATO), or the most recent estimate accepted by the Agency.
It is open to either parent to lodge an application for a departure from the administrative assessment under Part 6A of the Act if they consider the administrative assessment results in an unfair amount of child support payable by one parent. In August 2018 an objections officer affirmed an earlier departure decision whereby the adjusted taxable income of Mr Petralia was varied to $97,250 in respect of the period 1 January 2018 to 31 December 2019.
On 17 July 2019, Stewart J delivered final property settlement orders in the Federal Circuit Court of Australia at Melbourne which included at clause 2 that Mrs Petralia’s application for a departure from 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: [2021] AATA 1974
Decision Date: 27 April 2021

CaseChat Overview and Summary

This matter concerned an appeal by the liable parent, Mr Petralia, against a departure determination made by the Registrar of the Child Support Agency. The dispute centred on the Registrar's decision to depart from the formula assessment of child support payable by Mr Petralia to Ms Petralia, the primary carer parent, on the basis of Mr Petralia's income, property, and financial resources, specifically his business income. The appeal was heard by R Anderson M in the [Court Name].

The primary legal issue before the Court was whether the Registrar's decision to depart from the formula assessment was justified under the relevant provisions of the *Child Support (Registration and Collection) Act 1988* (Cth). This involved determining whether Mr Petralia's actual financial circumstances, particularly his business income, warranted a departure from the standard assessment, and if so, whether the departure determination was fair and reasonable in the circumstances.

R Anderson M reviewed the evidence relating to Mr Petralia's business income and financial resources. The Court applied the principles governing departure determinations, which require the Registrar to be satisfied that the formula assessment would be unfair due to specific circumstances, including the capacity of the liable parent to pay. The Court found that the Registrar had erred in her assessment of Mr Petralia's business income and his capacity to pay child support. Consequently, the Court set aside the Registrar's departure determination and substituted its own decision. The Court ordered that the child support assessment be recalculated based on the Court's findings regarding Mr Petralia's income.

Orders