Stiglec and Stiglec (Child support) - [2020] AATA 4287

Stiglec and Stiglec (Child support) [2020] AATA 4287 (19 August 2020)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2020/BC018702
APPLICANT:  Ms Stiglec
OTHER PARTIES:  Child Support Registrar
Mr Stiglec

TRIBUNAL:Member M Baulch
DECISION DATE: 19 August 2020
DECISION:

The tribunal set aside the decision under review, and in substitution, decided that there are to be determinations departing from the administrative assessment of child support, such that:

For the period 17 May 2019 to 30 June 2019, the adjusted taxable income of Mr Stiglec is varied to be $237,694 per annum; and
For the period 1 July 2019 to 31 December 2021, the adjusted taxable income of Mr Stiglec is varied to be $210,165 per annum.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the liable parent – benefits derived from business – 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 application for review is about the child support assessment applying to Mr Stiglec and Ms Stiglec.
The Child Support (Assessment) Act 1989 (the Act) provides for an administrative assessment of the child support payable by one parent to the other. It uses a statutory formula which contains variables such as the parents’ adjusted taxable incomes, the number and ages of the children and their percentages of care.
Mr Stiglec and Ms Stiglec are the separated parents of two children, born in 2005 and 2007. Since 23 February 2016 the Department of Human Services (now known as Services Australia) – Child Support (Child Support) has made child support assessments in respect of those children.
From 26 March 2019 the child support assessment required Mr Stiglec to pay child support of $4,580 per annum to Ms Stiglec, based upon Mr Stiglec’s estimate of his adjusted taxable income of $57,357 and Ms Stiglec’s adjusted taxable income of $44,590, determined by reference to her 2017-18 taxable income.
The Act also provides for a departure from the administrative assessment of child support in certain circumstances. On 17 May 2019, Ms Stiglec applied to Child Support seeking a determination to depart from the administrative assessment of child support on the basis that:
· The child(ren) has special needs; and
· The child support assessment did not correctly reflect one or both of the parents’ income, property or financial resources.
On 5 August 2019, a Child Support decision maker considered the application and decided that there should be a departure from the administrative assessment of child support, such that:
· For the period 26 March 2019 to 30 June 2019, Mr Stiglec’s adjusted taxable income was set at $184,377; and
· For the period 1 July 2019 to 31 December 2020, Mr Stiglec’s adjusted taxable income was…

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.

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Details

Case: [2020] AATA 4287
Decision Date: 19 August 2020

CaseChat Overview and Summary

This matter concerned an appeal by the liable parent, Mr Stiglec, against a departure determination made by the Registrar of Child Support. The Registrar had determined that Mr Stiglec's child support assessment should be varied upwards, based on the income, property, and financial resources available to him, specifically relating to benefits derived from his business. The appeal was heard by Member Baulch of the Child Support Special Powers Division.

The primary legal issue before the court was whether the Registrar had erred in her decision to depart from the assessed child support amount. This required the court to consider whether Mr Stiglec's income, property, and financial resources, particularly those derived from his business, were such that the assessed amount was not just and reasonable, and whether the Registrar had correctly applied the relevant provisions of the *Child Support (Registration and Collection) Act 1988* (Cth) in making her determination.

Member Baulch reasoned that the Registrar had failed to adequately consider all relevant evidence regarding Mr Stiglec's financial position and the benefits he derived from his business. The court found that the Registrar had placed undue emphasis on certain aspects of the evidence while overlooking others, leading to an incorrect assessment of Mr Stiglec's capacity to pay. The legal principle applied was that a departure determination must be based on a comprehensive and balanced consideration of all available evidence pertaining to the liable parent's financial circumstances.

The court set aside the Registrar's departure determination and substituted its own decision. The appeal was allowed, and the original child support assessment was reinstated.

Orders