Reid and Gates (Child support) - [2018] AATA 2410

Reid and Gates (Child support) [2018] AATA 2410 (8 June 2018)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2017/MC013007
APPLICANT:  Mr Reid
OTHER PARTIES:  Child Support Registrar
Ms Gates

TRIBUNAL:Member P Glass
DECISION DATE: 08 June 2018
DECISION:

The decision under review is affirmed.

CATCHWORDS
Child support - Departure determination - Whether there is new information since the last departure decision - A ground for departure not established - Refusal to make a determination - Decision under review affirmed

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 Reid and Ms Gates are the parents of [Child 1]. Ms Gates is the parent liable to pay child support.
On 26 June 2017, Mr Reid applied to the Department of Human Services – Child Support (the Department) for a departure from the administrative assessment of child support on the grounds that the assessment does not correctly reflect the parents’ income, property and/or financial resources (Reason 8A) and the assessment does not correctly reflect the parents’ earning capacity (Reason 8B).
On 31 August 2017, a decision maker at the Department found that a ground for departure was established but refused to depart from the administrative assessment of child support as it would not be just and equitable to do so.
On 8 September 2017, Mr Reid objected to the Department’s decision. On 2 November 2017, an objections officer disallowed Mr Reid’s objection.
On 29 November 2017, Mr Reid applied to the Administrative Appeals Tribunal (the Tribunal) for an independent review of the objections officer’s decision. That application was heard on 7 June 2018. Mr Reid appeared before the Tribunal and gave evidence on affirmation. Neither Ms Gates nor the Department participated in the hearing.
The Tribunal received into evidence the following documents:
· Documents produced by the Department pursuant to subsection 37(1) of the Administrative Appeals Tribunal Act 1975, marked 1 to 435 (Exhibit 1);
·      Documents produced by Mr Reid prior to the hearing and subsequently marked A1 to A448 (Exhibit 2);
·      Documents produced by Ms Gates and subsequently marked B1 to B45 (Exhibit 3);
·      Further documents produced by Mr Reid at and subsequent to the heading, subsequently marked A449 to A468 (Exhibit 4); and
·      A decision of the Tribunal involving the same parties dated 21 October 2016 (Exhibit 5).
The issue arising for determination in this case is whether a ground for departure from the administrative assessment of child support is established.

CONSIDERATION

Subsequent departure applications

In December 2015, Mr Reid applied to the Department for a departure from the administrative assessment of child support.[1] That application was ultimately determined by this Tribunal (differently constituted) on 21 October 2016. From 8 December 2015 until the end of the child support…

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: [2018] AATA 2410
Decision Date: 8 June 2018

CaseChat Overview and Summary

The case of *Reid and Gates (Child support)* concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth). The applicant, Reid, sought to vary an existing child support assessment. The respondent was Gates. The matter came before the court for review of a decision made by the Child Support Registrar.

The primary legal issue before the court was whether there was "new information" since the last departure determination that would justify a further departure from the child support assessment. Specifically, the court had to consider if the grounds for departure, as outlined in the legislation, were established by the applicant.

The court affirmed the Registrar's decision to refuse to make a departure determination. The reasoning applied was that the applicant had failed to demonstrate that the information presented constituted "new information" as contemplated by the *Child Support (Registration and Collection) Act 1988* (Cth) in circumstances where a previous departure application had already been considered and determined. The court found that the grounds for departure were not established on the facts before it.

Orders