Wilselhan and Wilselhan (Child support) - [2022] AATA 3068

Wilselhan and Wilselhan (Child support) [2022] AATA 3068 (16 June 2022)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2021/MC022726
APPLICANT:  Mr Wilselhan
OTHER PARTIES:  Child Support Registrar
Mrs Wilselhan

TRIBUNAL:Senior Member J Longo (Presiding)
Senior Member S De Bono

DECISION DATE: 16 June 2022
DECISION:

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

For the period 15 July 2020 to 11 October 2020, Mr Wilselhan’s adjusted taxable income is set at $29,237;
For the period 12 October 2020 to 30 June 2021, Mr Wilselhan’s adjusted taxable income is set at $103,902; and
For the period 1 July 2021 to 31 December 2022, Mr Wilselhan’s adjusted taxable income is set at $136,500.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the liable parent – necessary commitments of self-support – 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 omitted 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 Wilselhan and Mrs Wilselhan are the separated parents of [Child 1] and [Child 2]. According to the records of Services Australia – Child Support (the Agency), the child support assessment was registered on 21 May 2020. The Agency has been responsible for the collection of child support from Mr Wilselhan since that time. The care attributed to Mr Wilselhan and Mrs Wilselhan in respect of [Child 1] and [Child 2] has been 22% and 78% respectively throughout the relevant period under review.
Since the case was registered with the Agency, there have been several changes to the administrative assessment. The most recent administrative assessments, prior to the application for this departure determination, were as follows:
·     For the period 22 May 2020 to 10 September 2020, the annual rate of child support payable by Mr Wilselhan increased to $18,758 due to [Child 2] being added to the assessment and he was reflected as being in Mrs Wilselhan`s above primary care.
·     For the period 11 September 2020 to 7 October 2020, the annual rate of child support payable by Mr Wilselhan decreased to $902. This was due to Mr Wilselhan lodging an estimated income of $29,330. Mrs Wilselhan`s income remained as above.
·     For the period 8 October 2020 to 30 March 2021, the annual rate of child support payable by Mr Wilselhan increased to $31,606. This was due to the agency amending Mr Wilselhan`s estimated income to $173,453 on 7 June 2021.
Mr Wilselhan applied to the Agency for a departure from the administrative assessment on 23 September 2020 on the basis of, in the special circumstances of the case, it is unfair because of the income, earning capacity, property or financial resources of one or both parents (reason 8A and…

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 3068
Decision Date: 16 June 2022

CaseChat Overview and Summary

This matter concerned an appeal by the liable parent, Mr Wilselhan, against a departure determination made by the Registrar of Child Support. The dispute centred on whether the Registrar had erred in departing from the usual child support assessment based on Mr Wilselhan's income, property, and financial resources, and his necessary commitments for self-support. The appeal was heard by the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the Registrar's decision to depart from the child support assessment was justified under the *Child Support (Registration and Collection) Act 1988* (Cth). Specifically, the Court had to determine if Mr Wilselhan's necessary commitments for self-support were so high as to warrant a departure from the standard assessment, and if the Registrar had properly considered all relevant factors in reaching their determination.

The Court found that the Registrar had failed to adequately consider the evidence presented regarding Mr Wilselhan's necessary commitments for self-support, particularly concerning his significant debts and ongoing financial obligations. The Court applied the principles outlined in the *Child Support (Registration and Collection) Act 1988* (Cth), which permit departure from a child support assessment where it would be fair and equitable to do so, taking into account the income, property, and financial resources of the liable parent, as well as their necessary commitments for self-support. The Court concluded that the Registrar's decision was not open to them on the evidence.

Consequently, the Court set aside the Registrar's departure determination and substituted its own decision, finding that a departure from the assessment was warranted.

Orders