Walpole and Conway (Child support) - [2024] AATA 2897

Walpole and Conway (Child support) [2024] AATA 2897 (19 July 2024)
DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/MC027050
APPLICANT:  Ms Walpole
OTHER PARTIES:  Child Support Registrar
Mr Conway

TRIBUNAL:Senior Member J Longo
DECISION DATE: 19 July 2024
DECISION:

The decision under review is affirmed.

CATCHWORDS
CHILD SUPPORT – departure determination – ground for departure – income, property and financial resources – financial position of company not fully disclosed – just and equitable – needs of the children – decision under review affirmed
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
1.Mr Conway and Ms Walpole are the separated parents of [Child 1] and [Child 2]. According to the records of Services Australia – Child Support (Child Support), the child support assessment was registered on 16 June 2016. Child Support has been responsible for the collection of child support from Ms Walpole since 10 December 2022. The children are recorded as being in the greater than primary care of Ms Walpole.
2.The most recent administrative assessment, prior to the application for this departure determination, was as follows:
·      For the period 1 December 2022 to 18 June 2023 Ms Walpole is to pay an annual rate of child support of $10,378 based on a 2021–22 adjusted taxable income of $117,575 for Ms Walpole and a 2021–22 adjusted taxable income of $45,769 for Mr Conway.
3.Ms Walpole applied to Child Support for a departure from the administrative assessment on 16 March 2023 on the basis that, in the special circumstances of the case, it was unfair because of the income, earning capacity, property or financial resources of one or both parents (Reasons 8A and 8B).
4.On 25 July 2023, Child Support decided to depart from the administrative assessment on the basis of Reason 8 and made a departure determination as follows:
·      For the period 16 March 2023 to 30 June 2025, Mr Conway’s adjusted taxable income is set at $105,000 per annum.
5.Mr Conway objected to the decision on 23 August 2023. An objections officer of Child Support allowed the objection on 9 November 2023 as follows:
·      For the period 16 March 2023 until a terminating event occurs, Mr Conway’s adjusted taxable income is set at $59,000 per annum.
6.On 14 November 2023, Ms Walpole lodged an application to the Administrative Appeals Tribunal (the Tribunal) for review of the objections officer’s decision. Directions for this matter were made on 19 March 2024. The application was heard on 30 April 2024 and 13 June 2024. The Tribunal considered the documents and information (provided to the parties prior to the hearing)[1] and the oral evidence of Ms Walpole and Mr Conway at hearing. Relevant aspects of the evidence and material will be referred to in…

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.

Continue reading Walpole and Conway (Child support)

Details

AGLC: Walpole and Conway (Child support) [2024] AATA 2897
Case: [2024] AATA 2897
Decision Date: 19 July 2024

CaseChat Overview and Summary

The dispute in *Walpole and Conway (Child support)* concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth). The applicant sought to depart from the assessed child support amount, alleging that the respondent's financial position had not been fully disclosed, particularly concerning the financial position of a company. The matter came before Senior Member J Longo of the [Tribunal Name].

The primary legal issue before the Senior Member was whether the circumstances warranted a departure from the child support assessment. This required the Senior Member to consider whether the respondent's failure to fully disclose the financial position of the company constituted a ground for departure, and if so, whether making a departure determination would be just and equitable, taking into account the needs of the children.

In reaching a decision, the Senior Member applied the principles established in the *Child Support (Registration and Collection) Act 1988* (Cth) regarding departure determinations. The Senior Member found that the applicant had not established that the respondent's financial position, including that of the company, was such that the assessment should be departed from. The Senior Member concluded that it was not just and equitable to make a departure determination, and therefore affirmed the original decision.

Orders