Randall and Randall (Child support) - [2018] AATA 1733

Randall and Randall (Child support) [2018] AATA 1733 (10 April 2018)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2017/SC012244
APPLICANT:  Mrs Randall
OTHER PARTIES:  Child Support Registrar
Mr Randall

TRIBUNAL:Member W Kennedy
DECISION DATE: 10 April 2018
DECISION:

The Tribunal sets aside the decision under review and, in substitution, varies Mrs Randall’s adjusted taxable income to $109,199.00 and Mr Randall’s adjusted taxable income to $49,022.00, both for the period from 9 January 2017 to 31 January 2019.

CATCHWORDS
Child Support – Departure determination – Income and financial resources of parents – Business income – Period of departure - 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

This review concerns an application for a departure from the formula assessment of child support. Mr Randall and Mrs Randall are the parents of three children. Two of the children, being [Child 1], who was born in May 2000 and [Child 2], who was born in April 2006 are children of the child support assessment. There has been a child support assessment in place for the children made by the Child Support Agency of the Department of Human Services (the Department) since 25 May 2015. At the time that he applied to the Department for a departure from the formula assessment the assessment was based on Mr Randall having above primary care of the children.
On 19 December 2016 Mr Randall advised the Department that he intended applying for a departure from the formula assessment of child support based on Reason 8A (the income, property and financial resources of one or both of the parents), stating that Mrs Randall’s income is greater than the income disclosed on her income tax return. On 9 January 2017 Mr Randall lodged his application. On the form he indicated that he was applying on the basis of Reason 8A and also Reason 8B (the earning capacity of one or both of the parents).
At the time of Mr Randall’s application Mrs Randall was required to pay Mr Randall $9,072.00 per annum, that amount being based on Mr Randall’s adjusted taxable income (ATI) of $7,371.00 and Mrs Randall’s ATI of $57,985.00.
On 19 April 2017 a delegate of the Child Support Registrar considered Mr Randall’s departure application and decided that Reason 8A had been established. The delegate decided to set Mrs Randall’s ATI at $82,472.00 for the period from 9 January 2017 to 31 December 2017 and $83,645.00 for the period from 1 January 2018 to 31 March 2019.
On 12 May 2017 Mrs Randall lodged an objection to that decision, claiming that the basis of the decision setting her income was incorrect. On 17 July 2017 a Department objections officer decided to set aside 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 Randall and Randall (Child support)

Details

AGLC: Randall and Randall (Child support) [2018] AATA 1733
Case: [2018] AATA 1733
Decision Date: 10 April 2018

CaseChat Overview and Summary

This matter concerned an application by the father, Mr Randall, for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth) concerning child support payable to the mother, Ms Randall. The decision under review was made by the Registrar of the Child Support Agency.

The primary legal issue before the court was whether the Registrar erred in failing to consider the full income and financial resources of the father, particularly his business income, when assessing child support obligations. The court was required to determine if the Registrar’s decision to depart from the formula assessment was justified, and if not, to substitute an appropriate decision.

Member W Kennedy found that the Registrar had not adequately considered the father's business income and financial resources. The court applied the principles of section 117 of the *Child Support (Registration and Collection) Act 1988*, which allows for departure from the formula assessment where it would be inequitable to do so. The court reasoned that the father's capacity to earn and his actual income from his business were relevant factors that had not been properly taken into account.

The court set aside the Registrar's decision and substituted its own, ordering a departure from the formula assessment to reflect the father's true financial position.

Orders