Rendell and Gedye (Child support) - [2023] AATA 1662

Rendell and Gedye (Child support) [2023] AATA 1662 (21 April 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2022/MC024529
APPLICANT:  Mr Rendell
OTHER PARTIES:  Child Support Registrar
Ms Gedye

TRIBUNAL:Member H Moreland
DECISION DATE: 21 April 2023
DECISION:

The decision under review is set aside and a decision substituted that from 21 February 2022 to 30 June 2023, Mr Rendell’s adjusted taxable income is varied to $96,056 per annum.

CATCHWORDS

CHILD SUPPORT – departure determination – earning capacity of the carer entitled to receive – a ground for departure established – 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 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

The issue to be determined in this application is whether there is a reason to change the administrative assessment of child support and whether it is just and equitable and otherwise proper to do so.
Mr Rendell and Ms Gedye are the parents of [Child 1] and [Child 2]. Ms Gedye is currently the parent liable to pay child support with the current assessment commencing on 7 March 2019.[1] The application for child support was registered with Services Australia – Child Support (the Agency) from December 2017 and since then, Mr Rendell and Ms Gedye have both, at different times, been assessed as being the parent liable to pay child support. Since 7 December 2017, [Child 1] and [Child 2] have been in the care of Mr Rendell for 51% of the time and the care of Ms Gedye for 49% of the time.[2]
[1] The Agency papers, p 515.
[2] The Agency papers, p 539.
Prior to the application for a change of assessment, Ms Gedye was assessed to pay child support as follows:
·      For the period from 1 July 2021 to 31 August 2021, Ms Gedye was assessed to pay Mr Rendell an annual rate of child support of $6,910.[3] The assessment used Ms Gedye’s 2021-22 estimated income of $78,266;[4] and Mr Rendell’s 2019-20 adjusted taxable income of $13,766.[5]
·      For the period from 1 September 2021 to 9 September 2021, Ms Gedye was assessed to pay Mr Rendell an annual rate of child support of $6,822.[6] The assessment used Ms Gedye’s 2021-22 estimated income of $78,266;[7] and Mr Rendell’s 2020-21 provisional income of $21,963.[8]
·      For the period from 10 September 2021 to 30 June 2022, Ms Gedye was assessed to pay Mr Rendell an annual rate of child support of $8,956.[9] The assessment used Ms Gedye’s 2021-22 amended income of $95,004;[10] and Mr Rendell’s 2020-21 provisional income of $21,963.[11]
[3] The Agency papers, p 7.
[4] The Agency papers, p 524.
[5] The Agency papers, p 516.
[6] The Agency papers, p 7.
[7] The Agency papers, p…

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 Rendell and Gedye (Child support)

Details

AGLC: Rendell and Gedye (Child support) [2023] AATA 1662
Case: [2023] AATA 1662
Decision Date: 21 April 2023

CaseChat Overview and Summary

This matter concerned an appeal by Rendell (the applicant) against a departure determination made by the Child Support Registrar concerning child support payable by Gedye (the respondent). The applicant sought to have the Registrar's decision set aside and substituted with a new determination.

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). Specifically, the court had to consider whether the respondent's earning capacity, rather than his actual income, was a relevant factor to be taken into account in determining whether to depart from the assessment.

The court found that the Registrar had failed to properly consider the respondent's earning capacity as a ground for departure. It was held that the Registrar's focus solely on the respondent's actual income, without adequately assessing his ability to earn, constituted an error. The court applied the principle that a parent's earning capacity is a relevant consideration when determining child support obligations, particularly where there is evidence suggesting that the parent is deliberately under-earning.

Consequently, the court set aside the Registrar's departure determination and substituted it with its own determination, finding that a departure was justified based on the respondent's earning capacity.

Orders