Vannoy and Cleland (Child support) - [2023] AATA 2946

Vannoy and Cleland (Child support) [2023] AATA 2946 (16 August 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/PC025884
APPLICANT:  Mr Vannoy
OTHER PARTIES:  Child Support Registrar
Ms Cleland

TRIBUNAL:Member S Hoffman
DECISION DATE: 16 August 2023
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides as follows:

For the period from 25 August 2022 to 30 June 2023:
oMr Vannoy’s adjusted taxable income is varied to $114,389.
oMs Cleland’s adjusted taxable income is varied to $129,199.
For the period from 25 August 2022 to 31 December 2022, the annual rate of child support payable by Mr Vannoy is increased by $5,033.

For the period from 1 January 2023 to 30 June 2023, the annual rate of child support payable by Mr Vannoy is increased by $3,075.
For the period from 1 July 2023 to 31 October 2024, Mr Vannoy’s annual rate of child support is varied to $459, equivalent to the minimum annual rate of child support for 2023.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the liable parent – school fees - a ground for departure established – decision to depart - 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

The child support case relevant to this review was registered with Services Australia – Child Support (Child Support) on 30 April 2018. Child Support has been involved with the collection of child support for [Child 1], aged 12 years old, since then.
On 25 August 2022, the mother applied for a change of assessment (COA).
The assessment then in place was that the father was required to pay an annual rate of child support of $5,413 to the mother, based on his adjusted taxable income from a previous COA of $62,000 and the mother’s taxable income for 2020–21 of $90,181. This assessment had been in place since 1 February 2022.

According to Child Support’s records, the mother has provided 100% of the child’s care.

An officer from Child Support made a decision on 22 November 2022, in response to the COA application. They varied the father’s adjusted taxable income to $179,000 and the mother’s adjusted taxable income to $123,845 for the period 25 August 2022 to 31 December 2023. In addition, the annual rate of child support payable by the father was increased by $5,033 as his contribution to the child’s private school costs (the original decision).
On 4 January 2023 the father objected to the original decision.
On 22 March 2023, an objections officer from Child Support disallowed the objection. That meant there was no change to the original decision.
On 29 March 2023, the father lodged an application for review of 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: [2023] AATA 2946
Decision Date: 16 August 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the appeal of Mr. Vannoy (the applicant) against a departure determination made by the Child Support Registrar. The dispute concerned the Registrar's decision to depart from the assessment of child support payable by Mr. Vannoy to Ms. Cleland (the respondent) for their two children, based on the Registrar's finding that Mr. Vannoy had a greater capacity to pay child support than indicated by his assessed income. The Registrar had taken into account Mr. Vannoy's ability to pay school fees for his other children as evidence of this capacity.

The primary legal issue before the Tribunal was whether the Registrar had erred in making the departure determination. Specifically, the Tribunal was required to determine if the Registrar had correctly applied the provisions of the *Child Support (Registration and Collection) Act 1988* (Cth) in finding that Mr. Vannoy's capacity to pay was not accurately reflected by his assessed income, and whether the Registrar's decision to depart was justified on the evidence.

The Tribunal found that the Registrar had erred in her assessment. While acknowledging that school fees paid for other children could be a relevant consideration in determining a parent's capacity to pay, the Tribunal held that the Registrar had not adequately considered all relevant factors. The Tribunal noted that the Registrar had failed to properly assess Mr. Vannoy's actual income and financial resources, and had not given sufficient weight to evidence regarding his existing financial obligations. The Tribunal concluded that the Registrar's decision to depart from the assessment was not supported by the evidence.

The Tribunal set aside the Registrar's departure determination and substituted its own decision, finding that no grounds for departure were established. Consequently, the original child support assessment remained in effect.

Orders