Wickers and Ganson (Child support) - [2019] AATA 434

Wickers and Ganson (Child support) [2019] AATA 434 (29 January 2019)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2018/MC014334
APPLICANT:  Mr Wickers
OTHER PARTIES:  Child Support Registrar
Ms Ganson

TRIBUNAL:Member R Anderson
DECISION DATE: 29 January 2019
DECISION:

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

The annual rate of child support payable by Mr Wickers in respect of the period 1 June 2017 to 31 August 2017 is varied to $14,900;
The annual rate of child support payable by Mr Wickers in respect of the period 1 September 2017 to 25 May 2018 is varied to $7,300;
The annual rate of child support payable by Mr Wickers in respect of the period 26 May 2018 to 30 June 2019 is varied to $5,700;
The adjusted taxable income of Mr Wickers is varied to $55,900 in respect of the period 1 July 2019 to 30 June 2020 and
The adjusted taxable income of Mr Wickers is varied to $57,800 in respect of the period 1 July 2020 until a terminating event occurs in respect of the child support assessment of [Child 3].

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources – income from operation of business with current partner – payment of personal expenses from business account – discretionary spending – carer parent depleting capital from property settlement - adult children – 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

Mr Wickers and Ms Ganson are the parents of [Child 1], [Child 2] and [Child 3]. According to records of the Department of Human Services – Child Support (the Department), the child support assessment was registered on 22 August 2000. However, it was not until 13 April 2011 that the Department became responsible for the collection of child support from Mr Wickers. It is evident that the child support assessment ceased in February 2013, recommencing on 28 November 2015. At the time of hearing only [Child 3] remained a child of the assessment, [Child 1] ceasing [in] April 2016 and [Child 2] [in] May 2018 following their 18^th birthdays.
The child support liability is generally calculated in accordance with the administrative assessment, as provided in the Child Support (Assessment) Act 1989 (the Act). The calculation is based on the income recorded by each parent in their most recently completed tax returns, as lodged with the Australian Taxation Office (ATO), or the most recent estimate accepted by the Department.
In the period commencing 28 November 2015, the adjusted taxable incomes of both parties fell below the self-support amount used in the administrative formula of $23,610. Consequently, Mr Wickers was assessed to pay child support at the fixed annual…

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 Wickers and Ganson (Child support)

Details

AGLC: Wickers and Ganson (Child support) [2019] AATA 434
Case: [2019] AATA 434
Decision Date: 29 January 2019

CaseChat Overview and Summary

The matter of *Wickers and Ganson* concerned an appeal to the court regarding a child support departure determination. The applicant, Ganson, sought to set aside a previous decision that had been made under the *Child Support (Registration and Collection) Act 1988*. The core of the dispute revolved around the assessment of the respondent, Wickers', income and financial resources, particularly in relation to the operation of a business with his current partner and the payment of personal expenses from the business account.

The court was required to determine whether the previous departure determination was erroneous. Specifically, it needed to consider whether Wickers' income and financial resources had been accurately assessed, taking into account the extent to which personal expenses were being met from business funds. The court also had to assess whether the carer parent, Ganson, had depleted capital from a property settlement in a manner that warranted consideration in the child support assessment.

In its reasoning, the court applied principles relating to the assessment of income and financial resources for child support purposes, including the treatment of personal expenses paid from business accounts as potentially relevant to a parent's capacity to pay. The court found that the previous decision had failed to adequately consider the available evidence regarding the depletion of capital by the carer parent and the extent to which personal expenses were being met from the business. Consequently, the court set aside the previous departure determination and substituted its own.

Orders