Spiller and Spiller (Child support) - [2018] AATA 4988

Spiller and Spiller (Child support) [2018] AATA 4988 (21 December 2018)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2018/HC014665
APPLICANT:  Mr Spiller
OTHER PARTIES:  Child Support Registrar
Mrs Spiller

TRIBUNAL:Senior Member R Ellis
DECISION DATE: 21 December 2018
DECISION:

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

for the period from 1 August 2017 to 31 December 2017, Mr Spiller’s adjusted taxable income is set at A$98,321;
for the period from 1 January 2018 to 31 December 2019, Mr Spiller’s adjusted taxable income is set at A$85,895;
for the period from 1 August 2017 to 30 June 2018, Mrs Spiller’s adjusted taxable income is set at A$33,518; and
for the period from 1 July 2018 to 31 December 2019, Mrs Spiller’s adjusted taxable income is set at A$46,718.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of both parents - rental income - hardship - 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 review is about whether or not there should be a departure from the administrative assessment of child support.
Mr Spiller and Mrs Spiller are the parents of [Child 1] (born September 2005) and [Child 2] (born December 2007). There has been a child support assessment in place since 12 July 2017 and Mr Spiller is the liable parent under the assessment.
The following child support assessment is under consideration:
· for the period 12 July 2017 to 1 September 2018 the annual rate of child support payable by Mr Spiller was $2,780 based on a 2016-17 adjusted taxable income of $13,312 for Mr Spiller and Mrs Spiller’s 2016-17 provisional income of $11,322.
On 1 December 2017 Mrs Spiller applied to the Department of Human Services, Child Support (the Child Support Agency) for a departure from the administrative assessment and on 12 April 2018 the Child Support Agency made the decision to change the assessment as follows:
·     for the period 1 August 2017 to 31 January 2018 Mr Spiller’s adjusted taxable income is set at $115,185;
·     for the period 1 February 2018 to 31 July 2018 Mr Spiller’s adjusted taxable income is set at $69,111;
·     for the period 1 August 2018 to 31 December 2018 Mr Spiller’s adjusted taxable income is set at $70,054;
·     for the period 1 January 2019 to 31 December 2019, Mr Spiller’s adjusted taxable income is set at $71,315;
·     for the period 1 January 2020 to 31 December 2020 Mr Spiller’s adjusted taxable income is set at $72,599;
·     for the period 1 August 2017 to 31 December 2018 Mrs Spiller’s adjusted taxable income is set at $90,600;
·     for the period 1 September 2019 to…

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 Spiller and Spiller (Child support)

Details

AGLC: Spiller and Spiller (Child support) [2018] AATA 4988
Case: [2018] AATA 4988
Decision Date: 21 December 2018

CaseChat Overview and Summary

This matter concerned an application by the father, Mr Spiller, to set aside a child support departure determination made by the Child Support Registrar. The determination had been made on the basis of the father's alleged income, property, and financial resources, including rental income, and the mother's alleged hardship. The court was asked to review the Registrar's decision.

The primary legal issue before the court was whether the Registrar had erred in her assessment of the father's income, property, and financial resources, and the mother's hardship, when making the departure determination. Specifically, the court had to consider whether the rental income attributed to the father was correctly calculated and whether the overall financial position of both parties justified the departure from the standard assessment.

The court found that the Registrar had made an error in her assessment of the father's financial position. The rental income had been overstated due to an incorrect calculation of deductible expenses. This error led to an inaccurate assessment of the father's capacity to pay and the mother's level of hardship. The court applied the principles of the *Child Support (Registration and Collection) Act 1988* concerning departure determinations, focusing on the accurate assessment of income, property, and financial resources, and the consideration of hardship.

The court set aside the Registrar's departure determination and substituted its own. The revised assessment reflected a more accurate calculation of the father's income and financial resources, leading to a different outcome regarding the child support payable.

Orders