Stanton and Stanton (Child support) - [2019] AATA 4866

Stanton and Stanton (Child support) [2019] AATA 4866 (6 September 2019)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2019/MC015972
APPLICANT:  Ms Stanton
OTHER PARTIES:  Child Support Registrar
Mr Stanton

TRIBUNAL:Member R Anderson
DECISION DATE: 06 September 2019
DECISION:

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

·     The annual rate of child support payable by Mr Stanton is to be varied to $8,945 in respect of the period 1 November 2016 to 30 August 2018;
·     The annual rate of child support payable by Mr Stanton is to be varied to $2,300 in respect of the period 31 August 2018 to 30 September 2019 and
·     The annual rate of child support payable by Mr Stanton is to be varied to $1,900 in respect of the period 1 October 2019 to 31 October 2021.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the liable parent – 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 the Child Support (Registration and Collection) Act 1988.

REASONS FOR DECISION

BACKGROUND

Mr Stanton and Ms Stanton are the parents of [Child 1] and [Child 2]. According to records of the Department of Human Services – Child Support (the Department), the child support assessment was registered on 21 September 2012. The Department has been responsible for the collection of child support from Mr Stanton since 15 August 2014.
The child support liability is generally calculated in accordance with the administrative assessment, as provided in the Child Support (Assessment) Act 1989 (the Act). The calculation is based on the income recorded by each parent in their most recently completed tax returns, as lodged with the Australian Taxation Office (ATO), or the most recent estimate accepted by the Department. It is open to either parent to lodge an application for a departure from the administrative assessment under Part 6A of the Act if they consider the administrative assessment results in an unfair amount of child support payable by one parent.
Following cessation of a previous departure decision made on 28 August 2015, the administrative assessment reverted to the usual formula in respect of the parents’ adjusted taxable incomes on 1 November 2016 while the adjustments in respect of private school fees ended on 31 December 2016. This resulted in the annual child support liability payable by Mr Stanton reducing from around $14,000 to just over $2,000 from 1 January 2017. Consequently, on 7 February 2017, Ms Stanton lodged a change of assessment on the basis that the administrative assessment produced an unfair outcome due to the private education costs of the children impacting significantly on their overall costs (Reason 3) and due to the earning capacity, income, property and financial resources available to Mr Stanton (Reason…

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 Stanton and Stanton (Child support)

Details

AGLC: Stanton and Stanton (Child support) [2019] AATA 4866
Case: [2019] AATA 4866
Decision Date: 6 September 2019

CaseChat Overview and Summary

The matter of *Stanton and Stanton* concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth). The applicant sought to have the assessed child support payable by the respondent varied on the basis of the respondent's income, property, and financial resources. The decision under review was made by the Registrar of the Child Support Agency.

The primary legal issue before the court was whether the Registrar's decision to refuse the departure determination was erroneous. Specifically, the court was required to consider whether the Registrar had properly assessed the respondent's financial circumstances and whether those circumstances warranted a departure from the standard assessment of child support.

The court reviewed the evidence presented regarding the respondent's income, including his employment and any other financial resources available to him. It considered the principles of child support assessment, which aim to ensure that both parents contribute financially to the upbringing of their children according to their respective capacities. The court applied the relevant provisions of the *Child Support (Registration and Collection) Act 1988* and the *Child Support (Assessment) Act 1989* (Cth) to determine if the Registrar's decision was justified.

The court found that the Registrar had failed to adequately consider certain aspects of the respondent's financial position. Consequently, the court set aside the Registrar's decision and substituted its own determination, varying the child support assessment.

Orders