Wells and Miller (Child support) - [2018] AATA 3287

Wells and Miller (Child support) [2018] AATA 3287 (24 July 2018)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2017/SC013175
APPLICANT:  Mr Wells
OTHER PARTIES:  Child Support Registrar
Ms Miller

TRIBUNAL:Member W Kennedy
DECISION DATE: 24 July 2018
DECISION:

The decision under review is affirmed.

CATCHWORDS
Child support - Departure determination - Whether income, property and financial resources of the liable parent makes the administrative assessment unjust and inequitable - Business income - No ground for departure - 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

This review concerns an application for a departure from the formula assessment of child support. Mr Wells and Ms Miller are the parents of [Child 1] who was born in December 2006. There has been a child support assessment in place for [Child 1] made by the Child Support Agency of the Department of Human Services (the Department) since 29 March 2011. The assessment is based on Ms Miller having primary care and Mr Wells having regular care of [Child 1].
At the time of Mr Wells’ original application the child support assessment was based on an objection decision to a Registrar-initiated departure from the formula assessment. The objection decision set Mr Wells’ adjusted taxable income (ATI) at $96,000.00 plus CPI adjustments from 15 February 2015 until a terminating event.
On 6 April 2017, Mr Wells applied to the Department for a departure from the formula assessment of child support based on Reason 8A (the income, property and financial resources of one or both of the parents) and Reason 8B (the earning capacity of one or both parents). Mr Wells asserted that his income “is not what CS has calculated”.
On 17 August 2017, a delegate of the Child Support Registrar found that no reason had been established to depart from the assessment. The delegate found that Mr Wells had not provided evidence that established that his income was significantly lower than the ATI used in the assessment. The delegate also found that no evidence in relation to either parents earning capacity had been provided.
On 4 October 2017, Mr Wells lodged an objection to that decision. On 18 December 2017 a Department objections officer decided to disallow the objection. The objections officer found that no reason to depart from the assessment had been established.
On 21 December 2017, Mr Wells lodged an application for a review of the decision with the Administrative Appeals Tribunal (the Tribunal). The Tribunal had access to the statement and documents provided by the Department. Those documents are at folios 1 to 285 of the hearing papers. Mr Wells acknowledged having received folios 1 to 255 but not the additional documents at folios 256 to 285. Ms Miller acknowledged having…

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 Wells and Miller (Child support)

Details

AGLC: Wells and Miller (Child support) [2018] AATA 3287
Case: [2018] AATA 3287
Decision Date: 24 July 2018

CaseChat Overview and Summary

This matter concerned an appeal to the Child Support Registrar (the Registrar) regarding a child support departure determination. The applicants, Wells and Miller, sought to depart from the administrative assessment of child support payable by the liable parent. The core of their dispute centred on whether the income, property, and financial resources of the liable parent rendered the administrative assessment unjust and inequitable.

The Registrar was required to determine whether the circumstances of the case met the criteria for a departure from the standard child support assessment. Specifically, the Registrar had to consider if the liable parent's financial position, including their business income, was such that the existing assessment was unfair and inequitable to the child or the other parent.

In reaching a decision, the Registrar considered the evidence presented regarding the liable parent's income and financial resources. The Registrar found that while the liable parent derived income from a business, this income was properly reflected in the administrative assessment. There was no evidence to suggest that the liable parent had deliberately reduced their income or was concealing financial resources. Consequently, the Registrar concluded that the liable parent's income and financial resources did not make the administrative assessment unjust or inequitable, and therefore, no grounds for departure were established.

The Registrar affirmed the original decision, finding no basis to depart from the administrative assessment of child support.

Orders