Seaver and Corey (Child support) - [2021] AATA 1764

Seaver and Corey (Child support) [2021] AATA 1764 (31 March 2021)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2020/BC020100
APPLICANT:  Mr Seaver
OTHER PARTIES:  Child Support Registrar
Ms Corey

TRIBUNAL:Member M Baulch
DECISION DATE: 31 March 2021
DECISION:

The tribunal set aside the decision under review and, in substitution, decided that there is to be a determination to depart from the administrative assessment of child support, such that:

From 18 November 2019 to 29 February 2020, the adjusted taxable income of Mr Seaver is varied to be $254,965 per annum;
From 1 March 2020 to 31 January 2021, the adjusted taxable income of Mr Seaver is varied to be $251,346 per annum; and
From 1 February 2021 to 30 June 2021, the adjusted taxable income of Mr Seaver is varied to be $290,590 per annum.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the liable parent – ground 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 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 application for review is about how much child support Mr Seaver should be assessed to pay to Ms Corey. Mr Seaver and Ms Corey are the separated parents of [Child 1], who was born in 2005, [Child 2], who was born in 2007 and [Child 3], who was born in 2011.
The Child Support (Assessment) Act 1989 (the Act) provides for an administrative assessment of the child support payable by one parent to the other. It uses a statutory formula which contains variables such as the parents’ adjusted taxable incomes, the number and ages of their children and their percentages of care.
Since 30 December 2015, the Department of Human Services (now Services Australia) – Child Support (Child Support) has made assessments of child support that applied to Mr Seaver and Ms Corey.
The Act also provides for a departure from the administrative assessment of child support in certain circumstances. On 15 January 2020, Mr Seaver applied to Child Support seeking a determination to depart from the administrative assessment of child support on the basis that the assessment of child support did not correctly reflect one or both parents’ earning capacity.
On 2 July 2020, a Child Support decision maker decided to make a departure determination, such that for the period 18 November 2019 to 31 March 2021 Mr Seaver’s adjusted taxable income was set at $251,346 (the decision under review).
Mr Seaver objected to that decision and, on 30 September 2020, that objection was disallowed. Mr Seaver has now applied to this tribunal for an independent review of Child Support’s decision.
A hearing into the application for review was held by the tribunal on 31 March 2021. Mr Seaver and Ms…

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 1764
Decision Date: 31 March 2021

CaseChat Overview and Summary

This matter concerned an appeal by the liable parent, Mr Corey, against a departure determination made by the Registrar of the Child Support Agency. The dispute centred on whether the Registrar had correctly considered the income, property, and financial resources of Mr Corey when making the determination. The appeal was heard by the Child Support Registrar.

The primary legal issue before the Registrar was whether the Registrar had erred in law in making the departure determination, specifically concerning the assessment of Mr Corey's financial position and whether this warranted a departure from the standard child support assessment.

The Registrar reviewed the evidence and the Registrar's previous decision. The Registrar found that the initial assessment had not adequately taken into account certain financial resources available to Mr Corey. Applying the principles of the *Child Support (Registration and Collection) Act 1988*, the Registrar determined that the previous decision was not soundly based.

Consequently, the Registrar set aside the original departure determination and substituted a new determination, reflecting a revised assessment of Mr Corey's financial circumstances.

Orders