Sewall and Rodgers (Child support) - [2018] AATA 4425

Sewall and Rodgers (Child support) [2018] AATA 4425 (16 October 2018)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2018/SC014290
APPLICANT:  Mr Sewall
OTHER PARTIES:  Child Support Registrar
Ms Rodgers

TRIBUNAL:Member W Kennedy
DECISION DATE: 16 October 2018
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides to set Mr Sewall’s adjusted taxable income at $165,000.00 for the period from 18 October 2017 until a terminating event, and to increase the assessment by $1,913.00 for the period from 1 January 2018 to 31 December 2018 and by $1,912.00 for the period from 1 January 2019 to 31 December 2019.

CATCHWORDS
CHILD SUPPORT – Departure determination – Income, property and financial resources of a parent from a company – Special needs of the child – 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. Mr Sewall and Ms Rodgers are the parents of [Child 1] who was born in August 2003. There has been a child support assessment in place for the child made by the Child Support Agency of the Department of Human Services (the Department) since 18 December 2003. The assessment is based on Mr Sewall having a care percentage of 0% and Ms Rodgers having a care percentage of 100%.
Mr Sewall was assessed to pay $8,946.00 in child support to Ms Rodgers, based on Mr Sewall’s adjusted taxable income (ATI) of $75,736.00 and Ms Richie’s ATI of $105,799.00.
On 18 October 2017 Ms Rodgers applied to the Department for a departure from the formula assessment of child support based on Reason 2 (the special needs of [Child 1]) and Reason 8A (the income, property and financial resources of one or both of the parents). Mr Sewall did not cross-apply for a departure from the formula assessment.
On 13 January 2018 a delegate of the Child Support Registrar considered the departure application and decided that Reason 2 and Reason 8A had been established. The delegate set Mr Sewall’s ATI at:
·     $121,000.00 for the period from 18 October 2017 to 30 November 2018, and at
·     $124,000.00 for the period from 1 December 2018 to 29 February 2020, and at
·     $127,000.00 for the period from 1 March 2020 until a terminating event;
and increased the assessment by:
·     $1,913.00 for the period from 1 January 2018 to 31 December 2018, and by
·     $1,912.00 for the period from 1 January 2019 to 31 December 2019.
On 21 February 2018 Mr Sewall lodged an objection to that decision. On 2 May 2018 a Department objections officer partly allowed Mr Sewall’s objection. The objections officer found that Reason 2…

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 Sewall and Rodgers (Child support)

Details

AGLC: Sewall and Rodgers (Child support) [2018] AATA 4425
Case: [2018] AATA 4425
Decision Date: 16 October 2018

CaseChat Overview and Summary

This matter concerned an appeal by Sewall (the applicant) against a departure determination made by the Child Support Registrar concerning the child support assessment for their child. Rodgers (the respondent) was the other parent. The dispute centred on whether the Registrar had erred in departing from the standard assessment by taking into account the income, property, and financial resources of a company controlled by the applicant.

The primary legal issue before the court was whether the Child Support Registrar had correctly exercised their discretion under section 117 of the *Child Support (Registration and Collection) Act 1988* (Cth) to depart from the assessment. Specifically, the court had to determine if the Registrar had made a finding that the applicant's actual or prospective entitlement to income, property, or financial resources from the company was not properly reflected in the assessment, and if the departure was otherwise justified under the Act, particularly in light of the child's special needs.

The court found that the Registrar had failed to adequately consider the evidence regarding the company's financial position and the applicant's actual ability to access its resources. The Registrar's decision to depart from the assessment was based on an insufficient appreciation of the distinction between the company's resources and the applicant's personal resources. The court applied the principles that a departure determination requires a clear finding that the assessment does not reflect the parent's true financial position and that the departure is justified by the circumstances, including the child's special needs.

The court set aside the departure determination made by the Child Support Registrar and substituted its own decision, finding that the circumstances did not warrant a departure from the standard assessment.

Orders