Sheehan and Sheehan (Child support) - [2024] AATA 2893

Sheehan and Sheehan (Child support) [2024] AATA 2893 (26 June 2024)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/HC026999
APPLICANT:  Mr Sheehan
OTHER PARTIES:  Child Support Registrar
Mrs Sheehan

TRIBUNAL:Member S Hoffman
DECISION DATE: 26 June 2024
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides as follows:

Mr Sheehan’s adjusted taxable income is varied as follows:
oFrom 1 March 2023 to 31 December 2023, to $126,000
oFrom 1 January 2024 until the case ends, to $129,000
For the period 1 March 2023 to 31 March 2023, the annual rate of child support payable by Mr Sheehan is increased by $11,400 in respect of school fees.

CATCHWORDS
CHILD SUPPORT – departure determination – ground for departure – income, property and financial resources – overseas income – some expenses disregarded for child support purposes – just and equitable – earning capacity – 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

The child support case relevant to this review was registered with Services Australia – Child Support (Child Support) on 12 July 2017. The case was ended on 4 January 2022 and re-registered on 1 September 2022, with Child Support responsible for collecting child support payments.
The father paid child support to the mother for the children [Child 1] and [Child 2] until 8 November 2023, and just for [Child 2] from 9 November 2023. [Child 1] turned 18 in September 2023. [Child 2] will turn 18 in December 2025. The mother has had 100% care of the children.
On 28 November 2022, the mother applied for a change of assessment (COA). At that time, the father’s annual child support liability was $12,144, based on his overseas adjusted taxable income of $69,006 for 2021–22 and the mother’s adjusted taxable income of $27,713 for the same year.
An original decision was made by an officer from Child Support on 21 April 2023 as follows:
·     For the period from 1 March 2023 to 1 September 2023, the annual rate of child support payable by the father is set at $15,228.
·     For the period from 2 September 2023 to 30 November 2023, the annual rate of child support payable by the father is set at $12,052.
·     From 1 December 2023 to 31 December 2024, the father’s adjusted taxable income is varied to $80,000.
On 24 May 2023, the father objected to the original decision. On 21 September 2023, an objections officer from Child Support set aside the original decision and made the following decision (the objection decision):
· From 1 January 2023 to 9 April 2023, the annual rate of child support payable by the father is increased by $15,293 in recognition of his share…

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 Sheehan and Sheehan (Child support)

Details

AGLC: Sheehan and Sheehan (Child support) [2024] AATA 2893
Case: [2024] AATA 2893
Decision Date: 26 June 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application for a departure determination concerning child support payments between the parties, referred to as Sheehan and Sheehan. The applicant sought to depart from the assessment of child support, arguing that the respondent’s overseas income and earning capacity should be taken into account.

The primary legal issue before the Tribunal was whether the respondent’s circumstances, specifically their overseas income and earning capacity, constituted a ground for departure from the standard child support assessment under the *Child Support (Registration and Collection) Act 1988* (Cth). The Tribunal was required to determine if it was just and equitable to make a departure determination, considering the respondent's income, property, and financial resources, including income earned overseas and certain disregarded expenses.

The Tribunal’s reasoning focused on the respondent’s ability to earn income overseas and the fact that some expenses were disregarded for child support purposes. Applying the principles of the *Child Support (Registration and Collection) Act 1988* (Cth), the Tribunal found that the respondent’s earning capacity and overseas income were significant factors that warranted a departure from the assessed amount. The Tribunal concluded that it was just and equitable to make a departure determination.

The Tribunal set aside the original decision and substituted its own decision, granting the departure determination.

Orders