Shearman and Shearman (Child support) - [2024] AATA 3938

Shearman and Shearman (Child support) [2024] AATA 3938 (18 July 2024)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/BC027033
APPLICANT:  Ms Shearman
OTHER PARTIES:  Child Support Registrar
Mr Shearman

TRIBUNAL:Member M Martellotta
DECISION DATE: 18 July 2024
DECISION:

The Tribunal sets aside the decision under review and in substitution decides to depart from the administrative assessment so that for the period:

· 6 March 2023 to 30 June 2023 Ms Shearman’s adjusted taxable income is varied to $100,000.
· 1 July 2023 to 1 January 2025 Ms Shearman’s adjusted taxable income is varied to $80,000.

CATCHWORDS
CHILD SUPPORT – change of assessment – a ground for departure exists – changed pattern of work – whether it is otherwise proper to make a particular departure determination – there are special circumstances – income property and financial resources – mother’s adjusted taxable income is 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 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 theChild Support (Registration and Collection) Act 1988.

REASONS FOR DECISION

BACKGROUND

Ms Shearman (the applicant) and Mr Shearman (the second party) are the parents of a child (T) who was born on [date] September 2014 (10 this year). The child is in the parents’ shared care.
According to Child Support records, the case was registered on 27 June 2022 with Child Support collecting. The applicant is the liable parent and is in arrears of $6,289.49.
The second party lodged a change of assessment application on 6 March 2023. He raised five grounds in that application including:
·      Reason 2 Special needs of the child.
·      Reason 3 High costs of caring for, educating or training the child.
·      Reason 5 Money, goods or property received by the payee or child.
·      Reason 7 Costs of self-support.
·      Reason 8A Income, property and financial resources of the applicant.
·      Reason 8B Earning capacity of the applicant.
The second party withdrew all the grounds apart from Reason 8A and proceeded with his application on that sole ground.
The applicant lodged a cross application in which she raised the following grounds:
· Reason 5 Money, goods or property received by the payee or child.
· Reason 8A Income, property and financial resources of the second party.
At the time the above applications were made, the following child support assessments were in place:

Assessment period	Annual liability $	Applicant income source	Applicant $	Second party income source	Second party $
1 March 2023 –30 June 2023	493	2022/23 updated ATI estimate	12,717	2021/22 ATI	19,740
1 July 2023 – 31 August 2023	493	2023/24 ATI estimate	5,214	2021/22 ATI	19,740
1 September 2023 – 30 June 2024	1,632[1]

[1] Fixed annual rate (FAR)

A Child Support decision maker varied the assessment. In a decision dated 12 September 2023 they…

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 Shearman and Shearman (Child support)

Details

AGLC: Shearman and Shearman (Child support) [2024] AATA 3938
Case: [2024] AATA 3938
Decision Date: 18 July 2024

CaseChat Overview and Summary

This matter concerned an application for a child support assessment review before Member M Martellotta of the Child Support Special Powers Division. The dispute involved an application to change a child support assessment, with the applicant asserting that a ground for departure existed due to a changed pattern of work. The core of the disagreement revolved around whether it was otherwise proper to make a particular departure determination, with the applicant arguing that special circumstances warranted such a change.

The court was required to determine whether the applicant had established a ground for departure from the child support assessment. Specifically, the court had to consider whether the applicant's changed pattern of work constituted a sufficient basis for departure, and if so, whether the circumstances were such that it was otherwise proper to make a departure determination. The court also had to assess the income, property, and financial resources of the parties, particularly the mother's adjusted taxable income, in light of the alleged special circumstances.

Member Martellotta found that a ground for departure did exist due to the changed pattern of work. The reasoning focused on the impact of this change on the parties' financial positions and the overall fairness of the existing assessment. The court applied the principles governing departures from child support assessments, considering whether the established ground, in conjunction with the specific financial circumstances of the parties, justified a variation. The mother's adjusted taxable income was varied as part of this assessment. The decision under review was set aside and substituted with a new determination.

Orders