Rusani and Halici (Child support) - [2024] AATA 2309

Rusani and Halici (Child support) [2024] AATA 2309 (3 June 2024)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/SC026847
APPLICANT:  Mr Rusani
OTHER PARTIES:  Child Support Registrar
Miss Halici

TRIBUNAL:Member D Tucker
DECISION DATE: 3 June 2024
DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – change of assessment – income and financial resources – father’s use of company funds and assets for personal expenses and use – director’s loan and retained profit – tribunal’s findings similar to those made by objections officer – decision under review affirmed

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 Rusani (the father) and Miss Halici (the mother) are the separated parents of [Child 1], born 4 April 2010, and [Child 2], born 22 May 2014, aged 13 and 9 years respectively (the children).
The child support assessment began on 16 January 2020 and is currently registered for collection by Services Australia – Child Support (Child Support).
For child support purposes the mother has 80% care and the father 20% care.
The rate of child support payable by a liable parent is usually based on an administrative assessment under Part 5 of the Child Support (Assessment) Act 1989 (the Act). A formula is used that considers variables including each parent’s adjusted taxable income (ATI) for the last relevant year of income, the number of children and the level of care provided by each parent.
However, part 6A of the Act allows for decision makers to depart from this formulaic assessment via a process commonly known as a “change of assessment”.
Under subsection 98C(1) a change of assessment can be made only if:
a. a ground (or more than one ground) for departure exists; and
b. departure from the administrative assessment would be:
i. just and equitable as regards the children and each parent; and
ii. otherwise proper.
Subsection 98C(2) of the Act prescribes grounds that must be established to depart from the formula assessment. These grounds match those set out in subsection 117(2). If the Registrar (or Tribunal in their stead) is satisfied that one or more of these grounds are established, and it would be just and equitable and otherwise proper to make a particular determination, the Registrar may make one of the determinations prescribed in section 98S of the Act. These include varying the rate of child support payable, the parents’ ATI, or cost percentages.

10 May 2023 –change of assessment

On 5 January 2023 the mother applied for a change of assessment based on the ground known as Reason 8A, which refers to parents’ income and financial resources. The mother claimed that the father’s ATI was under assessed.
The father’s liability was calculated based on his annual income estimate of $89,938…

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.

Keep reading for free

Create a free CaseChat account to read Rusani and Halici (Child support) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] AATA 2309
Decision Date: 3 June 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application by the father, Mr Rusani, to change a child support assessment. The dispute concerned the father's income and financial resources, specifically his use of company funds and assets for personal expenses and use, including a director's loan and retained profits. The AAT's decision under review affirmed the findings of the objections officer.

The primary legal issue before the Tribunal was whether the father's access to and use of company funds and assets constituted income or financial resources that should be included in the child support assessment. This involved determining the nature of the director's loan and retained profits within the context of the father's financial capacity and obligations under the *Child Support (Registration and Collection) Act 1988*.

The Tribunal affirmed the objections officer's decision, finding that the father's use of company funds and assets for personal benefit was indicative of his financial capacity. The Tribunal applied the principles of child support assessment, which require consideration of all relevant income and financial resources available to a liable parent. The director's loan and retained profits were treated as effectively available to the father for his personal use, thereby increasing his assessable income for child support purposes.

Orders