Wolfe and Stepney (Child support) - [2023] AATA 4283

Wolfe and Stepney (Child support) [2023] AATA 4283 (17 November 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/MC026327
APPLICANT:  Mr Wolfe
OTHER PARTIES:  Child Support Registrar
Ms Stepney

TRIBUNAL:Senior Member D Benk
DECISION DATE: 17 November 2023
DECISION:
The Tribunal sets aside the decision under review and, in substitution, decides:

From the date of the departure application 2 October 2022, to 30 June 2023, the adjusted taxable income of Mr Wolfe be set at $240,000;
Thereafter his adjusted taxable income be set with reference to the administrative formula.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the liable parent - benefits derived from business - income from family trust - 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

The parties are the parents of [Child 1] born [in] July 2013 who remains in the sole care of the mother. Child support is managed via Services Australia (Child Support) (the Agency).
Between 1 September 2022 and 30 November 2023 the father was assessed to pay an annual rate of child support of $1,521. This assessment was derived by the operation of the child support administrative formula which applied a nil income for the father and $41,215 for the mother.
On 2 October 2022, the mother sought a departure from the administrative formula via the change of assessment process. The departure was successful resulting in the father being assessed to pay $13,045 annually from 2 October 2022 to 31 December 2024.
The father objected to that decision. Following review, an objections officer set an annual rate of child support of $22,000 for the period 2 October 2022 to 31 December 2026.
The father now seeks independent review of that decision maintaining the Agency have over-inflated his financial means. The mother objects to any change.
The matter underwent the usual case management pathway with a telephone directions hearing resulting in directions being issued and satisfactory compliance by the parties. The matter then proceeded to hearing proper on 17 November 2023.

PRELIMINARY COMMENTS

The parties are high conflict with many concurrent legal proceedings. The evidence of both parents was self-serving and a greater reliance was placed on the documentary evidence.

CONSIDERATION

The parties are familiar with the process of departure. However, for the sake of completeness and background the Tribunal will summarise the law.
Before making an order for departure from the assessment under section 116 of the Child Support (Assessment) Act 1989 (the Act), subsection 117(1) requires the Tribunal to be satisfied that:
· a ground for departure exists under subsection 117(2);
· that it would be just and equitable as regards the child, the carer parent and the liable parent to make…

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.

Keep reading for free

Create a free CaseChat account to read Wolfe and Stepney (Child support) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] AATA 4283
Decision Date: 17 November 2023

CaseChat Overview and Summary

The matter of *Wolfe and Stepney* concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth). The applicant sought to have the child support assessment varied on the basis of the respondent's income, property, and financial resources, specifically focusing on benefits derived from a family trust and his business. The Senior Member of the court was required to review the initial decision made by the Registrar.

The central legal issue before the court was whether the respondent's actual financial circumstances, particularly the income and benefits he derived from his business and a family trust, warranted a departure from the child support assessment as initially calculated. This involved determining whether the Registrar had erred in their assessment of the respondent's financial resources and whether the benefits received were properly characterised as income for the purposes of child support.

The Senior Member found that the Registrar had failed to adequately consider the full extent of the financial benefits the respondent derived from his business and the family trust. The court reasoned that these benefits constituted income for the purposes of the *Child Support (Registration and Collection) Act 1988* and that the initial assessment had not reflected the respondent's true capacity to pay. Consequently, the decision under review was set aside and substituted with a new determination that took into account these additional financial resources.

Orders