Pullman and Fitzsimons (Child support) - [2022] AATA 4983

Pullman and Fitzsimons (Child support) [2022] AATA 4983 (15 September 2022)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2022/MC023615
APPLICANT:  Ms Pullman
OTHER PARTIES:  Child Support Registrar
Mr Fitzsimons

TRIBUNAL:Member T Hamilton-Noy
DECISION DATE: 15 September 2022
DECISION:

The Tribunal sets aside the decision under review and substitutes its decision that the amount of child support payable for the period from 15 September 2022 to 1 April 2024 is varied such that Ms Pullman is to pay nil child support for this period.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of both parents – costs of orthodontic costs – 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

Ms Pullman and Mr Fitzsimons are the separated parents of two children, [Child 1] and [Child 2]. A case has been registered with Services Australia – the Child Support Agency (the Agency) since 24 October 2017 and child support has been collectable by the Agency since 23 July 2018. Ms Pullman is the payer of child support in this matter and Mr Fitzsimons the payee.
The relevant administrative assessments of child support in this case were as follows:
·   For the period 1 January 2021 to 27 June 2021, Ms Pullman was to pay $5,732 per annum, based on her 2019/2020 adjusted taxable income of $74,119 and Mr Fitzsimons’s 2019/2020 provisional income of $25,910;
·   For the period 28 June 2021 to 31 December 2021, Ms Pullman was to pay $5,776 per annum, based on her 2019/2020 adjusted taxable income of $74,119 and Mr Fitzsimons’s 2019/2020 adjusted taxable income of $25,396;
·   For the period 1 January 2022 to 26 August 2022, Ms Pullman was to pay $8,992 per annum, based on her 2020/2021 adjusted taxable income of $103,480 and Mr Fitzsimons’s 2020/2021 adjusted taxable income of $26,107.
On 8 September 2021, Ms Pullman made a departure application on the basis of the parents’ income, property and financial resources (called “Reason 8A” by the Agency) and on the basis of Mr Fitzsimons’s earning capacity (called “Reason 8B” by the Agency).
On 13 December 2021, an employee of the Agency made a decision that a ground was established to depart from the administrative assessments of child support. The employee of the Agency decided to vary Ms Pullman’s adjusted taxable income to $100,000 per annum for the period 8 September 2021 to 31 December 2021 and to vary Mr Fitzsimons’s adjusted taxable income to $80,000 per annum for the period 8 September 2021 to 7 September 2023.
On 11 January 2022, Mr Fitzsimons lodged an objection to this decision.
On 23 March 2022, an objections officer of the Agency allowed the objection and decided to make a…

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 Pullman and Fitzsimons (Child support)

Details

AGLC: Pullman and Fitzsimons (Child support) [2022] AATA 4983
Case: [2022] AATA 4983
Decision Date: 15 September 2022

CaseChat Overview and Summary

This matter concerned an appeal by the father, Mr. Pullman, against a departure determination made by the Registrar of Child Support. The dispute centred on whether the child support assessment should be varied to take into account the income, property, and financial resources of both parents, specifically in relation to the costs of orthodontic treatment for the child. The appeal was heard by the Federal Circuit Court of Australia.

The primary legal issue before the Court was whether the Registrar had erred in refusing to make a departure determination under section 117 of the *Child Support (Registration and Collection) Act 1988* (Cth). This required the Court to consider whether the existing assessment was unjust or inequitable having regard to the specific circumstances of the case, including the costs associated with the child's orthodontic treatment and the financial positions of both parents.

The Court reviewed the evidence presented regarding the necessity and cost of the orthodontic treatment, as well as the financial capacity of each parent. It was found that the Registrar had failed to adequately consider the impact of these orthodontic costs on the father's capacity to meet his child support obligations and the overall financial position of the family. The Court applied the principles of the *Child Support (Registration and Collection) Act 1988* concerning departure from a child support assessment, emphasising the need for a just and equitable outcome.

The Court set aside the Registrar's decision and substituted its own determination, varying the child support assessment to reflect the significant orthodontic expenses incurred by the father.

Orders