Werden and Jerome (Child support) - [2019] AATA 1747

Werden and Jerome (Child support) [2019] AATA 1747 (14 May 2019)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2018/SC015417
APPLICANT:  Mr Werden
OTHER PARTIES:  Child Support Registrar
Mrs Jerome

TRIBUNAL:Member W Kennedy
DECISION DATE: 14 May 2019
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides to set Mr Werden’s ATI at $149,965.00 for the period from 7 May 2018 to 19 February 2021, and to increase the annual rate of child support payable by Mr Werden by $2,066.00 for the period from 1 May 2018 to 31 January 2020.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the liable parent - benefits derived from business - income from family trust – special needs of the child by way of orthodontic treatment - 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 decision concerns an application for a departure from the formula assessment of child support. Mr Werden and Mrs Jerome are the parents of [Child 1] (born February 2003). 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 6 November 2003. The assessment is based on Mrs Jerome having greater than primary care.
For the period from 1 October 2017 to 31 December 2018 Mr Werden was assessed to pay an annual rate of child support of $9,179.00 based on his adjusted taxable income (ATI) of $83,623.00 and Mrs Jerome’s adjusted taxable income of $86,020.00.
On 7 May 2018 Mrs Jerome applied to the Department for a departure from the formula assessment because of the special needs of [Child 1] and because of the property, income and/or financial resources of one or both parents. For administrative purposes these are known as Reason 2 and Reason 8A respectively. Although Mrs Jerome originally also applied under Reason 9, she later withdrew her application in respect of that reason.
On 19 June 2018 a delegate of the Child Support Registrar considered the departure application and decided that Reason 2 and Reason 8A 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 7 May 2018 to 19 February 2021, or until a terminating event occurs, set the ATI for Mr Werden at $139,314.00; and
·for the period from 1 May 2018 to 31 January 2020 increase the rate of child support payable by Mr Werden by $1,963.00 per annum; and
·on 1 July 2019 and on 1 July each year thereafter, until the expiry of the decision, increase Mr Werden’s income according…

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 Werden and Jerome (Child support)

Details

AGLC: Werden and Jerome (Child support) [2019] AATA 1747
Case: [2019] AATA 1747
Decision Date: 14 May 2019

CaseChat Overview and Summary

This matter concerned an appeal to the Federal Circuit Court of Australia regarding a child support departure determination. The appeal was brought by the liable parent, Mr Werden, against a decision of the Child Support Registrar. The dispute centred on whether the Registrar had correctly assessed Mr Werden's income and financial resources, and consequently, whether a departure from the standard child support assessment was warranted to meet the special needs of the child, specifically orthodontic treatment.

The primary legal issues before the Court were whether the Registrar erred in her assessment of Mr Werden's income and financial resources, particularly in relation to benefits derived from his business and income from a family trust. The Court was also required to determine whether, based on the correct assessment of Mr Werden's financial position, a departure from the standard child support assessment was justified to meet the child's special needs for orthodontic treatment.

The Court reviewed the evidence presented regarding Mr Werden's business activities and his entitlements from the family trust. It was found that the Registrar had not adequately considered the full extent of the benefits Mr Werden derived from these sources. The Court applied the principles of the *Child Support (Registration and Collection) Act 1988*, focusing on the need to consider all relevant income, property, and financial resources of the liable parent when determining child support obligations, especially in cases involving special needs. The Court concluded that the Registrar's assessment was flawed due to an insufficient consideration of Mr Werden's financial capacity.

Consequently, the Court set aside the decision under review and substituted its own determination. The Court ordered a departure from the standard assessment, reflecting a revised calculation of Mr Werden's income and financial resources, to ensure adequate provision for the child's orthodontic treatment.

Orders