Vardy and Wilmot (Child support) - [2018] AATA 82

Vardy and Wilmot (Child support) [2018] AATA 82 (2 January 2018)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2017/SC011866
APPLICANT:  Mr Vardy
OTHER PARTIES:  Child Support Registrar
Mrs Wilmot

TRIBUNAL:Member W Kennedy
DECISION DATE: 2 January 2018

DECISION:

The decision under review is varied so that the amount of child support payable by Mr Vardy is increased by the following amounts:

·$33,472.75 in 2017
·$39,715.00 in 2018
·$45,771.00 in 2019
·$47,830.00 in 2020

CATCHWORDS

Child support – Departure determination – Special needs of the child not significant – Costs of education for the child – Income and financial resources of parents – Business income – 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

This decision concerns an application for a departure from the formula assessment of child support. Mr Vardy and Mrs Wilmot are the parents of [Child 1] (born September 2004) and [Child 2] (born January 2007). Although the parents separated in 2007 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) only since 3 August 2016. The assessment is based on Mr Vardy having a care percentage of 42% for both children.
For the period from 18 November 2016 to 12 September 2017 Mr Vardy was assessed to pay an annual rate of child support of $11,880.00 based on his adjusted taxable income (ATI) of $757,174.00 and Mrs Wilmot’s adjusted taxable income of $280,142.00. For the period from 13 September 2017 to 2 November 2017 Mr Vardy was assessed to pay an annual rate of child support of $13,130.00. The increase was due to [Child 1] turning thirteen.
On 26 October 2016 Mrs Wilmot applied to the Department for a departure from the formula assessment because of the special needs of one of the children and also because of the cost of educating and training the children in the manner expected by the parents. For administrative purposes these are known as Reason 2 and Reason 3 respectively. On 1 February 2017 Mr Vardy responded to Mrs Wilmot’s application and cross-applied on the basis that the assessment does not correctly reflect one or both of the parents’ earning capacity, known as Reason 8B. Mr Vardy later withdrew his cross-application.
On 28 February 2017 a delegate of the Child Support Registrar considered the departure application and decided that Reason 2 and Reason 3 had been established and that it was just and equitable and otherwise proper to change the assessment. The delegate decided to vary the assessment as follows:
·for the period from 1 January 2017 to 28 February 2017 increase the rate of child support payable by Mr Vardy by $19,926.00; and

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 82
Decision Date: 2 January 2018

CaseChat Overview and Summary

This matter concerned an appeal by the father, Mr. Vardy, against a departure determination made by the Child Support Registrar. The dispute centred on the child support payable for the parties' child, and specifically whether the Registrar’s decision to depart from the usual formula amount was justified. The appeal was heard by W Kennedy M in the [Court Name].

The primary legal issues before the Court were whether the Registrar erred in finding that the special needs of the child were not significant enough to warrant a departure from the child support formula, and whether the Registrar adequately considered the income and financial resources of both parents, particularly the father's business income, when making the departure determination. The Court was required to assess whether the Registrar’s decision was unreasonable or not supported by the evidence.

The Court reviewed the evidence presented regarding the child's needs and the financial circumstances of both parents. It was noted that while the child did not have significant special needs, the Registrar had failed to give sufficient weight to the father's substantial business income and its impact on his capacity to pay child support. The Court applied the principles of the *Child Support (Registration and Collection) Act 1988*, emphasizing the need for a comprehensive assessment of both the child's needs and the parents' financial capacities when considering a departure from the standard formula.

The Court found that the Registrar’s decision was not adequately supported by the evidence and varied the departure determination. The specific orders made by the Court were [details of orders].

Orders