Scoggins and Elwes (Child support) - [2021] AATA 3611

Scoggins and Elwes (Child support) [2021] AATA 3611 (29 July 2021)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2021/MC020860
APPLICANT:  Mr Scoggins
OTHER PARTIES:  Child Support Registrar
Ms Elwes

TRIBUNAL:Member M Martellotta
DECISION DATE: 29 July 2021
DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – departure determination – whether there was a ground for departure – earning capacity of the liable parent – ground for departure established – decision to depart - 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

This review concerns a change of assessment decision made by Services Australia – Child Support (the Agency).
Mr Scoggins and Ms Elwes are the parents of two children born [in] 2017 and [2019]. The children are in the mother’s primary care and the fathers regular care. Ms Elwes applied for a child support assessment which the Agency accepted. A child support case commenced as from 6 November 2019.[1]
[1] Page 25
The following administrative child support assessments were in place:

Child Support Period

Mr Scoggins

Ms Elwes

Annual Liability

6 Nov 2019 -10 Nov 2019

$71,107

2018/19 ATI

$27,472

2018/19 ATI

$10,954

11 Nov 2019-30 June 2020

$2,221

2019/20 Estimate

$27,472

2018/19 ATI

$2,886

1 July 2020 – 7 July 2020

$71,107

2018/19 ATI

$27,472

2018/19 ATI

$8,186

8 July 2020 – 31 August 2020

$29,304

2019/20 Estimate

$27,472

2018/19 ATI

$638

1 Sept 2020 – 30 June 2021

$29,304

2019/20 Estimate

$40,628

2019/20 ATI

$0

On 24 August 2020 Ms Elwes lodged a change of assessment application on the grounds of reasons 8A, 8B and 6. She withdrew reason 6. In order to establish the ground under reason 8A a parent is required to demonstrate that the parent’s income, property and financial resources make the administrative assessment unfair. Reason 8B relates to a parent’s earning capacity.
On 9 October 2020 an Agency decision maker decided that no ground had been established. Ms Elwes successfully objected to that decision. On 15 February 2021 another Agency decision maker decided to depart from the administrative assessment so that for the period 24 August 2020 to 30 November 2022 Mr Scoggins was to be assessed on an ATI of $71,107. That decision maker decided that both grounds had been established – in effect the decision reflected Mr Scoggins’ earning capacity.
Mr Scoggins now seeks independent full merits review of the Agency’s decision. The tribunal held a telephone directions hearing and issued directions. The parental parties attended a hearing on 29 July 2021. The hearing was conducted by conference telephone and the parental parties gave evidence on affirmation.
The following documents were received; Agency (268 pages); Mr Scoggins A1-98 and Ms Elwes B1-B27. Post-hearing Mr Scoggins of his own volition provided…

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: [2021] AATA 3611
Decision Date: 29 July 2021

CaseChat Overview and Summary

This matter concerned an application for review of a departure determination made by the Registrar of the Child Support Agency. The applicants, Scoggins and Elwes, sought to challenge the Registrar's decision to depart from the formula assessment of child support payable by the liable parent. The review was heard by the Child Support Registrar.

The primary legal issue before the Registrar was whether there was a ground for departure from the formula assessment of child support. Specifically, the Registrar had to consider whether the earning capacity of the liable parent constituted a ground for departure under the relevant provisions of the *Child Support (Registration and Collection) Act 1988* (Cth).

The Registrar's reasoning focused on the liable parent's earning capacity. The evidence presented indicated that the liable parent possessed an earning capacity that was significantly higher than their actual earnings. The Registrar found that this disparity between earning capacity and actual earnings constituted a ground for departure. The Registrar then considered whether it was just and equitable to depart from the formula assessment, taking into account the circumstances of the case, and concluded that it was.

The Registrar affirmed the decision to depart from the formula assessment.

Orders