Rearick and Strudwick (Child support) - [2021] AATA 4784

Rearick and Strudwick (Child support) [2021] AATA 4784 (6 October 2021)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2021/PC020890
APPLICANT:  Mr Rearick
OTHER PARTIES:  Child Support Registrar
Ms Strudwick

TRIBUNAL:Member W Budiselik
DECISION DATE: 6 October 2021
DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that the mother’s adjusted taxable income is varied to $100,000 for the period 20 August 2020 to 9 November 2025.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the carer entitled to receive child support – earning capacity – failure to comply with directions – adverse inferences – 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

Mr Rearick (the father/applicant) and Ms Strudwick (the mother) are the parents of two children (born [in] November 2004 and [November] 2007, respectively) who are the subjects of administrative assessments of child support. A child support case has been registered in respect of the children since 7 July 2010.
On 9 August 2020, the father applied to Services Australia (the Agency) for a change of assessment determination because he believed the administrative assessment of child support was unfair because of the mother’s income, property and/or financial resources. The father asked that a changed determination be backdated to 1 November 2019.
The relevant administrative assessments in place at the time the father requested the change of assessment were:
·For the period 1 November 2019 to 31 October 2020, the father was assessed to pay an annual rate of child support of $22,482. This assessment was based upon his 2018-19 adjusted taxable income (ATI) of $216,792 and the mother’s 2018-19 ATI of $37,262.
·For the period 10 November 2020 to 31 December 2020, the father was assessed to pay an annual rate of child support of $24,940. This assessment was based upon the above-mentioned incomes for both parents. The change in the assessment was due to the younger child turning 13 years of age.
On 6 October 2020, an officer from the Agency decided to vary the mother’s ATI to $52,000 for the period 1 July 2020 to 31 October 2021.
The father objected to the Agency’s decision. On 29 January 2021, an objections officer from the Agency reviewed the officer’s decision and set it aside because the objections officer found no ground had been established to change the administrative assessment. That is, the administrative assessments as set out in paragraph 3 of these Reasons for Decision remained in place.

On 26 February 2021, the father lodged an application for a review of the Agency’s decision with the tribunal.
On 3 June 2021, the tribunal [conducted] a telephone-directions hearing with the parents and then issued directions for 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 4784
Decision Date: 6 October 2021

CaseChat Overview and Summary

The case of *Rearick and Strudwick* concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth). The applicant sought to have the child support assessment varied based on the income, property, and financial resources of the carer entitled to receive child support, specifically focusing on their earning capacity. The matter came before the court for review of a previous decision.

The primary legal issue before the court was whether the previous decision-maker had erred in their assessment of the carer’s earning capacity and in drawing adverse inferences regarding their financial circumstances. The court was required to determine if the carer had failed to comply with directions issued during the proceedings and, if so, the implications of such non-compliance for the assessment of child support.

The court found that the previous decision-maker had made errors in their assessment. Specifically, the court determined that the carer had failed to provide adequate information regarding their financial position and earning capacity, despite being directed to do so. Consequently, the court was entitled to draw adverse inferences against the carer. The court set aside the previous decision and substituted its own determination, finding that the carer possessed an earning capacity that had not been properly accounted for in the original assessment.

Orders