Truett and Scinta (Child support) - [2020] AATA 886

Truett and Scinta (Child support) [2020] AATA 886 (4 March 2020)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2019/BC017499
APPLICANT:  Miss Truett
OTHER PARTIES:  Child Support Registrar
Mr Scinta

TRIBUNAL:Senior Member A Freeman
DECISION DATE: 4 March 2020
DECISION:

The decision under review is varied as follows:

For the period from 1 July 2018 until a terminating event occurs, Mr Scinta’s adjusted taxable income is varied to $80,000 per annum.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources and earning capacity of the liable parent – earning capacity criteria met - a ground for departure established – decision to depart - decision under review varied

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

Miss Truett and Mr Scinta are the parents of one child. Miss Truett’s care percentage at the time of the objection decision for the purposes of assessing child support was recorded as 100%.
Miss Truett lodged an application with the Department of Human Services (the Department) on 28 February 2019 seeking a departure from the administrative assessment of child support. At the time of the application, Mr Scinta was liable to pay an annual rate of child support of about $6,709. This was calculated using an adjusted taxable income (ATI) of $60,181 for Mr Scinta and an ATI of $20,017 for Miss Truett.
On 20 June 2019, the Department found that grounds to depart existed and varied Mr Scinta’s ATI to $105,000 for a period from 1 September 2017 until [Child 1] ceased to be an eligible child of the case.
Mr Scinta objected to this decision and on 6 September 2019 an objections officer allowed the objection and varied Mr Scinta’s ATI to $60,181 for a period from 1 September 2017 to 30 June 2018 and to $85,000 for a period from 1 July 2018 until a terminating event occurs.
Both parties sought a further review of this decision although Miss Truett’s application was received first, so she is deemed to be the applicant for the purposes of the review.
Miss Truett submits that Mr Scinta’s ATI does not reflect his true income and financial resources and submits that he has not stopped working since late June 2019. Mr Scinta contends that child support should be assessed based on his true income which is that reflected in his group certificates and the fact that he has been unemployed since 28 June 2019.
The Tribunal hearing was conducted on 4 March 2020. Both parties appeared by conference telephone. In reaching its decision, the Tribunal has considered the sworn evidence given by both parties at the hearing, together with the documentation provided by the Department (exhibit 1), the documentation provided by Miss Truett (exhibit 2) and the documentation…

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 886
Decision Date: 4 March 2020

CaseChat Overview and Summary

This matter concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth) brought by Miss Truett against Mr Scinta. Miss Truett sought to have Mr Scinta's child support assessment varied retrospectively from September 2017, arguing that previous assessments did not accurately reflect his financial position. Mr Scinta contended that a retrospective variation would be unfair, given a prior change of assessment application had already been determined by the Department. The review was heard by A Freeman SM.

The primary legal issues before the Tribunal were whether it was just and equitable to depart from the administrative assessment, and if so, from what date such a departure should commence. The Tribunal was also required to consider whether a proposed departure was otherwise proper, having regard to the nature of parental duty to maintain a child and the potential impact on any income-tested pension, allowance, or benefit received by the child or carer.

The Tribunal found that Mr Scinta's earning capacity criteria for a departure were met. However, it considered it inappropriate to commence the departure from September 2017, as a change of assessment process had already occurred in early 2018, and neither party had objected to that decision. Consequently, the Tribunal determined it was just and equitable to commence its variation of Mr Scinta's Adjusted Taxable Income (ATI) to $80,000 from 1 July 2018, ending on 29 October 2019, due to the child's age. The Tribunal upheld the earlier part of the objection decision, which had varied Mr Scinta's ATI to $60,181 for the period from 1 September 2017 to 30 June 2018, finding this adequately reflected his financial position at that time. In considering whether the departure was otherwise proper, the Tribunal noted that the proposed increase in child support payments could lead to a reduction in the child's youth allowance, thereby potentially reducing the cost to the community, and concluded that the departure was otherwise proper.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Miss Truett submits that it would be just and equitable to commence the decision from September 2017 because the assessments previously did not reflect Mr Scinta’s true financial position. Miss Truett previously made a change of assessment application on 15 February 2018 where it was found by the Department that no ground to depart from the administrative assessment was established at that time. Mr Scinta submits that because the Department had already made a decision then, it would be unfair to go back and retrospectively change the assessment now. The Tribunal has made findings in this review application in relation to Mr Scinta’s income from 1 July 2018 based on the evidence before it. The Tribunal does not consider it appropriate to go back any further in time given there was already a change of assessment process conduct by the Department in early 2018 and neither party exercised their right to object to the decision that resulted from that process. The Tribunal therefore considers it just and equitable to commence its decision to vary Mr Scinta’s ATI to $80,000 from 1 July 2018 and this will end on 29 October 2019, given the child’s age thereafter. The objection decision the subject to this review involves two parts. The first part of the decision was to vary Mr Scinta’s ATI to $60,181 for the period from 1 September 2017 to 30 June 2018. This ATI was based upon Mr Scinta’s derived income for 2017/2018 as ascertained from Australia Taxation Office documents obtained by the Department and was the ATI that applied at the time of Miss Truett’s change of assessment application. The Tribunal considers it appropriate that this part of the objection decision remain in place as it adequately reflects the financial position of Mr Scinta at that time. In considering whether a departure is otherwise proper, the Tribunal must take into account subsection 117(5) of the Act which requires the Tribunal to have regard to the nature and duty of a parent to maintain a child and the effect that the making of the order would have on any entitlement of the child or carer entitled to child support to an income-tested pension, allowance or benefit or the rate of any income-tested pension, allowance or benefit payable to the child or the carer. The child is in receipt of youth allowance. The proposed departure has the effect of increasing in the amount payable by Mr Scinta when compared to the administrative assessment in place at the time of Miss Truett’s change of assessment application and therefore may result in a decrease in youth allowance payments and consequently the cost to the community. The Tribunal therefore considers that the departure proposed is otherwise proper in the circumstances of this case.

Ratio Decidendi

Legal Principle Established

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