Walden and Masland (Child support) - [2022] AATA 2095

Walden and Masland (Child support) [2022] AATA 2095 (21 April 2022)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2021/MC022426
APPLICANT:  Mr Walden
OTHER PARTIES:  Child Support Registrar
Ms Masland

TRIBUNAL:Member Y Webb
DECISION DATE: 21 April 2022
DECISION:

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

the previous departure determination made by the AAT of 30 January 2019 is ended on 11 March 2021; and
for the period 12 March 2021 to 31 October 2023 Mr Walden’s adjusted taxable income is varied to $80,000 per annum.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the liable parent – 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 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 review relates to the issue of child support regarding the children of Mr Walden and Ms Masland (“the children”). The children are aged 16 and 13. Services Australia (“Child Support Agency”) records that currently the eldest child is in the 86% care of Ms Masland and 14% care of Mr Walden and the younger child is in the 67% care of Ms Masland and 33% care of Mr Walden.
The child support case was first registered by the Child Support Agency on 28 February 2013 and has been collectable by the Child Support Agency since that date.
On 12 March 2021 Mr Walden applied to the Child Support Agency for a change to the administrative assessment on the basis of Reason 8A. Mr Walden stated that he was seeking a decrease in his annual rate of child support payable because COVID-19 had had a major impact on his income. (Mr Walden initially also raised Reason 1 but he subsequently withdrew that ground early in the process.)
At the time of Mr Walden’s application for a change to the assessment, a previous change of assessment decision was still in place; that was a decision of the Administrative Appeals Tribunal (“AAT decision”) made on 30 January 2019. That decision was as follows:
·For the period 1 March 2018 until (the eldest child) ceases being eligible for child support assessment purposes, Mr Walden’s adjusted taxable income is varied to $140,000.
·From 1 July 2019 and from each 1 July thereafter for the duration of this decision, Mr Walden’s adjusted taxable income increases by the Child Support Inflation Factor.
On 12 March 2021 when Mr Walden lodged his application for a change to the assessment, and for the period 1 January 2021 to 30 June 2021 his rate of child support payable was approximately $29,800 per annum. This was based on an indexed income for Mr Walden of $146,944 and Ms Masland’s 2019/2020 adjusted…

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: [2022] AATA 2095
Decision Date: 21 April 2022

CaseChat Overview and Summary

This matter concerned an appeal by the liable parent, Mr Walden, against a departure determination made by the Child Support Registrar. The Registrar had determined that a departure from the standard child support assessment was justified on the grounds that the liable parent possessed income, property, and financial resources that were not adequately reflected in the assessment. The appeal was heard by the Federal Circuit and Family Court of Australia.

The primary legal issue before the court was whether the Child Support Registrar had erred in making the departure determination. Specifically, the court was required to consider whether the Registrar had correctly applied the relevant provisions of the *Child Support (Registration and Collection) Act 1988* (Cth) in assessing the liable parent's income, property, and financial resources and in concluding that a departure was justified.

Her Honour, Magistrate Webb, reviewed the evidence before the Registrar and the Registrar's reasons for decision. The court found that the Registrar had failed to adequately consider certain financial resources available to the liable parent, which had a material impact on the overall assessment of his capacity to pay child support. The court applied the principles established in the *Child Support (Registration and Collection) Act 1988* (Cth) regarding the assessment of a liable parent's financial position for the purpose of departure determinations.

The court set aside the Registrar's departure determination and substituted its own decision. The court ordered that a departure from the standard assessment was justified, and it made a revised assessment of child support payable by the liable parent.

Orders