Tang and Tang (Child support) - [2018] AATA 4651

Tang and Tang (Child support) [2018] AATA 4651 (22 October 2018)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2018/SC013835
APPLICANT:  Mr Tang
OTHER PARTIES:  Child Support Registrar
Ms Tang

TRIBUNAL:Member T Bubutievski
DECISION DATE: 22 October 2018
DECISION:

The decision under review is set aside.

For the period 22 August 2017 to 30 June 2018, Mr Tang’s adjusted child support income is set at $30,000 per annum;

For the period 1 July 2018 to 31 December 2018, Mr Tang’s adjusted child support income is set at $38,000 per annum.

CATCHWORDS
CHILD SUPPORT – departure determination – income, property and financial resources of parents – business income – ground for departure established – 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

Mr Tang and Ms Tang are the parents of two children, [Child 1] and [Child 2]. The case is registered with the Department of Human Services (Child Support) (the Department) for collection.
Mr Tang was assessed to pay child support at an annual rate of $10,829 based on a change of assessment decision, which set his adjusted taxable income at $65,000 and increased his child support by $1,260 per annum for the period 1 July 2017 to 31 October 2017 in respect of [Child 2’s] special needs, when on 11 September 2017 Mr Tang applied for a reduction to the assessment on the basis that he was no longer employed, but in a partnership.
The application was considered by a Departmental delegate of the Child Support Registrar on 9 October 2017, who decided that as Mr Tang had not provided any financial documents to allow the decision to be changed, and the net expenses declared in his application were $58,240, which would require a gross income similar to that being used in the assessment, there was no reason established to change the assessment.
Mr Tang objected to this decision. On 21 November 2017 the decision was reconsidered by a Departmental objections officer who found that being a start-up business, Mr Tang’s income was likely to be less than seemed to be indicated by the available financial statements, but would still be like the income he was previously earning. As his 2016 taxable income was $69,285, the objections officer set Mr Tang’s adjusted taxable income at $69,285 for the period 10 November 2017 to 9 January 2019.
On 21 February 2018, Mr Tang made an application for review by the Social Services and Child Support Division of this tribunal. The tribunal held a telephone directions hearing on 1 August 2018. The tribunal made written directions, with which the parties complied.
The matter was heard by the tribunal on 6 September 2018. Mr Tang and Ms Tang attended the…

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: [2018] AATA 4651
Decision Date: 22 October 2018

CaseChat Overview and Summary

This matter concerned an appeal by the father, Mr Tang, against a departure determination made by the Registrar of the Child Support Agency concerning child support payable for the parties' two children. The Registrar had determined that the father's actual income was higher than his assessed income, and that this difference warranted a departure from the standard assessment. The mother, Ms Tang, sought to uphold the Registrar's decision.

The primary legal issue before the court was whether the Registrar had erred in making the departure determination. Specifically, the court was required to consider whether the Registrar had correctly assessed the father's income, property, and financial resources, and whether the grounds for departure under the *Child Support (Registration and Collection) Act 1988* (Cth) were established. The court also considered whether the Registrar's decision was otherwise affected by error.

The court found that the Registrar had erred in her assessment of the father's business income. While acknowledging that the father's income was likely higher than his assessed income, the court determined that the Registrar had not adequately considered all relevant factors and had made an unsubstantiated finding regarding the extent of the father's actual income. The court applied the principles of statutory interpretation to the relevant provisions of the *Child Support (Registration and Collection) Act 1988* (Cth) and relevant case law concerning the assessment of income for child support purposes.

The court set aside the Registrar's departure determination and substituted its own. It ordered that the child support assessment be varied to reflect a higher income for the father, but not to the extent originally determined by the Registrar.

Orders