Thorley and Corliss (Child support) - [2019] AATA 1748

Thorley and Corliss (Child support) [2019] AATA 1748 (16 April 2019)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2018/SC014442
APPLICANT:  Mr Thorley
OTHER PARTIES:  Child Support Registrar
Ms Corliss

TRIBUNAL:Member W Kennedy
DECISION DATE: 16 April 2019
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides to set Mr Thorley’s ATI at $83,150.00 and to set Ms Corliss’ ATI at $65,000.00, both for the period from 13 December 2017 to 31 December 2019 and to increase the assessment by $5,580.00 per annum for the period from 1 January 2018 to 31 December 2018 and by $6,262.00 for the period from 1 January 2019 to 31 December 2019.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of both parents - benefits derived from business – costs of the children include private education - 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 decision concerns an application for a departure from the formula assessment of child support. Mr Thorley and Ms Corliss are the parents of three children, two of whom are currently children of the assessment, one having ceased to be a child of the assessment [in] January 2018. There has been a child support assessment in place for the children made by the Child Support Agency of the Department of Human Services (the Department) since 2007. Since that time there have been at least five applications by the parents for departures from the formula assessment, at least four of which have drawn objections from the parents.
At the time of Mr Thorley’s relevant application the assessment was based on the children being in the shared care of the parents. The annual rate of child support payable by Mr Thorley at the time of his relevant application to the Department was $12,441.00. However, at that time the eldest child was still a child of the assessment. After the eldest child ceased to be a child of the assessment, [in] January 2018, the annual rate of child support was reduced to $10,434.00. This was based on Mr Thorley’s adjusted taxable income (ATI) of $89,500.00 and Ms Corliss’ ATI of $31,091.00, the former having been set by a change of assessment decision made by the Department on 9 April 2017 and the latter being a provisional figure.
On 13 December 2017 Mr Thorley applied to the Department for a departure from the formula assessment based on reason 8A (the income, property and financial resources of one or both of the parents) and reason 8B (the earning capacity of one or both of the parents). In his covering letter Mr Thorley advised that the former related to his own income while the latter…

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.

Keep reading for free

Create a free CaseChat account to read Thorley and Corliss (Child support) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] AATA 1748
Decision Date: 16 April 2019

CaseChat Overview and Summary

This matter concerned an appeal by the father, Thorley, against a departure determination made by the Child Support Registrar concerning child support payments. The mother, Corliss, had sought a departure from the usual assessment, which was granted by the Registrar. The dispute centred on the income, property, and financial resources of both parents, particularly the benefits derived by the father from his business, and the costs associated with the children's private education.

The court was required to determine whether the Registrar had erred in making the departure determination. Specifically, the court had to consider whether the father's income and financial resources, including benefits derived from his business, had been adequately assessed, and whether the costs of the children's private education were a relevant factor to be considered in a departure application. The court also had to assess whether the departure determination was just and equitable having regard to the specific circumstances of the case.

The court found that the Registrar had failed to adequately consider the father's income and financial resources, particularly the benefits he derived from his business. It was held that the costs of the children's private education were a relevant consideration in determining the child support payable. The court concluded that the departure determination made by the Registrar was not just and equitable and therefore set aside the original decision. The court substituted its own determination, which adjusted the child support assessment to reflect a more accurate assessment of the father's capacity to pay and the children's needs.

Orders