Wise and Wise (Child support) - [2019] AATA 5135

Wise and Wise (Child support) [2019] AATA 5135 (15 July 2019)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2019/AC015901
APPLICANT:  Mr Wise
OTHER PARTIES:  Child Support Registrar
Ms Wise

TRIBUNAL:Member Y Webb
DECISION DATE: 15 July 2019
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the child support assessment should be varied as follows:

·from 1 October 2018 to 30 June 2019 Mr Wise’s adjusted taxable income is varied to $46,000; and

·from 1 July 2019 to 30 June 2020 Mr Wise’s adjusted taxable income is varied to $87,000; and

·from 1 October 2018 to 30 June 2019 Ms Wise’s adjusted taxable income is varied to $57,000.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of both parents – a ground for departure established based on the incomes of both parents – 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 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 relates to the issue of child support regarding the child of Ms Wise and Mr Wise. The child is now 14 years old and is in the 100% care of Ms Wise.
The child support case commenced on 23 April 2009 and was registered for collection on 6 February 2014.
On 4 September 2018, Mr Wise applied to the Child Support Agency for a change to the administrative assessment. He initially cited Reasons 8A and 8B but Mr Wise later modified his claim to include Reason 5.
Ms Wise cross-applied on the basis of Reasons 8A, 8B and 3. Ms Wise later advised the Tribunal that she no longer wished to pursue Reason 3.
At the time of the application for a change to the assessment there was a departure decision in place. That decision, made on 4 June 2018, was that for the period 12 April 2018 to 28 February 2019 Mr Wise’s adjusted taxable income was to be increased by $9,713 and Ms Wise’s adjusted taxable income was to be varied to $39,000. The result of this decision was that when Mr Wise lodged his new application for a change to the assessment on 4 September 2018, Mr Wise’s annual rate of child support payable was $7,314 based on his 2016/2017 adjusted taxable income of $56,276 (which included the increase of $9,713 as determined in the existing change of assessment decision of 4 June 2018) and on Ms Wise’s adjusted taxable income of $39,000. Had Mr Wise not applied for a change to the assessment (or Ms Wise), Mr Wise’s annual child support liability would have dropped to $1,314 for the period 1 October 2018 to 28 February 2019 based on a 2017/2018 adjusted taxable income of $30,247 (including…

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 Wise and Wise (Child support)

Details

AGLC: Wise and Wise (Child support) [2019] AATA 5135
Case: [2019] AATA 5135
Decision Date: 15 July 2019

CaseChat Overview and Summary

The matter of *Wise and Wise* concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth). The applicant sought to have the assessed child support payable by the respondent varied on the grounds of the income, property, and financial resources of both parents. The Registrar had previously made a decision to depart from the assessment, which was now under review by the court.

The primary legal issue before the court was whether the Registrar's decision to depart from the child support assessment was justified. This required the court to consider whether a ground for departure was established, and if so, whether it was in the best interests of the child to make a departure determination. The court was specifically tasked with reviewing the evidence relating to the financial circumstances of both the applicant and the respondent.

The court found that a ground for departure was established based on the incomes of both parents. Having determined that a ground existed, the court then considered whether it was in the best interests of the child to make a departure determination. The court ultimately set aside the Registrar's decision and substituted its own, indicating that the specific orders made reflected the court's assessment of the child's best interests in light of the established financial circumstances.

Orders