Schreider and Sitwell (Child support) - [2022] AATA 3072

Schreider and Sitwell (Child support) [2022] AATA 3072 (6 July 2022)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2022/PC023059
APPLICANT:  Miss Schreider
OTHER PARTIES:  Child Support Registrar
Mr Sitwell

TRIBUNAL:Member S Hoffman
DECISION DATE: 6 July 2022
DECISION:

The tribunal varies the decision under review and decides as follows:

The objection decision made on 1 December 2021 that applied from 3 April 2020 to 2 April 2022 is unchanged.
For the period from 3 April 2022 to 31 August 2024, Mr Sitwell’s adjusted taxable income is varied to $180,000 a year.
For the period from 3 April 2022 to 31 August 2024, Miss Schreider’s adjusted taxable income is varied to $47,000 a year.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of both parents – 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 child support case relevant to this review was registered with Services Australia – Child Support (the CSA) on 16 July 2014. The CSA has been involved with the collection of child support since 28 June 2015.
This review is about the child support assessments in respect of [Child 1] and [Child 2], aged 11 and 10 years old respectively. There was an assessment for a third child, [Child 3], who is 14 years old. The CSA notified the parents on 6 August 2021 that the child support assessment for [Child 3] had been cancelled following a court declaration that the father was not considered to be [Child 3]’s biological father.
On 6 April 2020, the father applied for a change of assessment. At that time, he was required to pay an annual rate of child support of $39,129 to the mother, based on his adjusted taxable income of $179,824 and the mother’s 2018/19 taxable income of nil. The father’s adjusted taxable income had been determined by a change of assessment decision which applied from 1 April 2019 to 31 March 2021. The child support assessment in place at that time was for the three children. They were recorded by the CSA as being in the mother’s 100% care.
The CSA reissued assessment notices from 16 July 2014 excluding a child support assessment for [Child 3]. The reissued notices show that the father’s annual child support liability on 6 April 2020 for the two children of the case was $32,380.

On 18 May 2020, a case officer from the CSA decided to vary the father’s adjusted taxable income to $143,423 a year for the period from 3 April 2020 to 30 June 2020 and to increase his adjusted taxable income by $143,423 from 1 July 2020 to 2 April…

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 Schreider and Sitwell (Child support)

Details

AGLC: Schreider and Sitwell (Child support) [2022] AATA 3072
Case: [2022] AATA 3072
Decision Date: 6 July 2022

CaseChat Overview and Summary

This matter concerned an objection decision regarding child support assessments for the father and mother. The dispute centred on the correct calculation of the father's income for child support purposes and the impact of the mother's income on the assessment. The decision was made by S Hoffman M.

The legal issues before the tribunal were whether to depart from the child support assessment based on the income, property, and financial resources of both parents. Specifically, the tribunal had to determine the father's actual income for the relevant period and consider the effect of the mother's income on the child support rate, particularly in light of her receiving Family Tax Benefit. The tribunal was also required to consider whether a departure determination would be otherwise proper, having regard to the community's interest in parents supporting their children.

The tribunal found that the father's actual income for the period between 1 August 2021 and 2 April 2022 was higher than his assessed taxable income. However, as the father was already paying the maximum rate of child support, this discrepancy did not alter the assessment for that period. From 3 April 2022, when the mother commenced employment, the tribunal determined it was just and equitable to vary the assessment to account for her income, which reduced the child support liability. The tribunal estimated that this variation would increase the annual rate of child support to approximately $31,500, resulting in an increase in the father's liability for the period to the end of July 2022. The tribunal concluded that its determination would result in an appropriate apportionment of financial responsibility between the parents and the community, and that it was otherwise proper, considering the mother's receipt of Family Tax Benefit. The tribunal set the end date for its determination at 31 August 2024 to provide certainty to the parties.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Given the history of this case referred to above, the tribunal will not change the objection decision, to minimise any arrears or overpayments its decision creates. According to the objection decision, between 1 August 2021 and 2 April 2022, the father was assessed on an adjusted taxable income of $233,325, being the sum of his 2020/21 taxable income of $89,902 plus $143,423. The annual rate of child support was $37,506.[9] [9] See pages 384 and 448 of the CSA papers The tribunal has ascertained the father’s income for that period to be $308,423 as his actual income during 2021/22 was higher than his taxable income from 2020/21. However, as the father was paying the maximum rate of child support, using the tribunal’s income figure would not affect the rate of child support. The objection decision ended on 2 April 2022. By that time, the mother had been working for two months. The tribunal estimates that the effect of her income on the rate of child support for those two months would reduce it by $500. Given the mother’s more difficult financial circumstances, and that $500 is only 1.3% of the annual liability, the tribunal is satisfied that, on balance, it is just and equitable to vary the child support assessment for her income from 3 April 2022 and not an earlier date. The rate of child support from 3 April 2022 was $15,020 a year, based on the father’s 2020/21 taxable income of $89,902 and the mother’s income being less than the self-support amount. The tribunal estimates that using its determination will increase the annual rate of child support to about $31,500. For the four months to end of July 2022, this will increase the father’s liability by about $4,500 for that period. Given the discrepancy between the father’s income during 2021/22, and the income he has been assessed on from 3 April 2022, the tribunal considers this to be just and equitable. The tribunal has ended its determination on 31 August 2024. This is to give the parties some certainty with regard to child support for the two years. It remains open to either parent to apply for a change of assessment between now and 31 August 2024 if their circumstances change. The requirement to consider whether a departure determination would be otherwise proper is concerned with what is fair to the community; it is preferable for a child or children to be primarily supported by their parents rather than by government assistance. Paragraph 117(5)(b) of the Act means that the tribunal must consider whether the level of a benefit, in particular family tax benefit (FTB), received by the party caring for a child or children, may be affected by the level of child support. The mother recorded in her SFC that she was receiving FTB. The tribunal is satisfied that its determination will result in an appropriate apportionment of financial responsibility between the parents and the community and would be otherwise proper.

Ratio Decidendi

Legal Principle Established

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