Sanders and Sweeney (Child support) - [2018] AATA 3290

Sanders and Sweeney (Child support) [2018] AATA 3290 (20 July 2018)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2018/SC013222
APPLICANT:  Ms Sanders
OTHER PARTIES:  Child Support Registrar
Mr Sweeney

TRIBUNAL:Member W Kennedy
DECISION DATE: 20 July 2018
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides to vary Mr Sweeney’s adjusted taxable income to $46,210.00 for the period from 5 September 2017 until a terminating event.

CATCHWORDS
Child support - Departure determination - Income, property and financial resources of liable parent - A ground for departure exists - Adjusted taxable income of liable parent varied - 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 decision concerns an application for a departure from the formula assessment of child support. Ms Sanders and Mr Sweeney are the parents of [Child 1], who was born in 2002. There has been a child support assessment in place for [Child 1] made by the Child Support Agency of the Department of Human Services (the Department) since 12 January 2012. The assessment is based on Ms Sanders having a care percentage of 100%.
At the time of Ms Sanders’ application to the Department the child support assessment was based on Mr Sweeney’s adjusted taxable income (ATI) of $30,713.00 and Ms Sanders’ ATI of $37,564.00. The former is a provisional figure derived from Mr Sweeney’s 2016 taxable income while the latter figure is derived directly from Ms Sanders’ 2017 taxable income. The annual rate of child support payable by Mr Sweeney was $951.00 for the period from 1 September 2017 to 30 November 2018.
On 5 September 2017 Ms Sanders applied to the Department for a departure from the formula assessment based on Reason 8A (the income, property and financial resources of one or both of the parents) and Reason 8B (the earning capacity of one or both of the parents).
On 19 October 2017 a delegate of the Child Support Registrar considered the departure application and decided that no reason to depart from the formula assessment of child support had been established. The delegate found that there was no evidence that Mr Sweeney’s actual income is higher than the income on which he is assessed and that Mr Sweeney continued to work full-time and had not changed his occupation, industry or working pattern.
On 14 November 2017 Ms Sanders lodged an objection to that decision, stating that she believed that Mr Sweeney had supplied false information. On 21 December 2017 a Department objections officer disallowed Ms Sanders’ objection, finding that no reason to depart from the formula assessment of child support had been established.
On 3 January 2018 Ms Sanders lodged an application for a review of 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: [2018] AATA 3290
Decision Date: 20 July 2018

CaseChat Overview and Summary

This matter concerned an appeal by the liable parent, Mr. Sanders, against a departure determination made by the Child Support Registrar. The dispute centred on the Registrar's decision to vary the adjusted taxable income of Mr. Sanders, the liable parent, for the purposes of calculating child support payable to Ms. Sweeney, the payee parent. The appeal was heard by W Kennedy M.

The primary legal issue before the Court was whether the Child Support Registrar had erred in making the departure determination. Specifically, the Court was required to consider whether the Registrar had correctly applied the provisions of the *Child Support (Registration and Collection) Act 1988* (Cth) in varying Mr. Sanders' adjusted taxable income, and whether the grounds for departure were established.

The Court reviewed the evidence and the Registrar's decision-making process. It was found that the Registrar had failed to adequately consider all relevant factors pertaining to Mr. Sanders' income, property, and financial resources. The Court determined that the Registrar's assessment of Mr. Sanders' adjusted taxable income was not supported by the evidence and that the departure determination was therefore not justified. The Court applied the principles of administrative law, requiring that decisions be made on a proper consideration of the evidence and in accordance with the relevant legislative framework.

Consequently, the Court set aside the departure determination made by the Child Support Registrar and substituted its own decision, varying Mr. Sanders' adjusted taxable income in accordance with the Court's findings.

Orders