Wolfe and Ziegler (Child support) - [2023] AATA 4459

Wolfe and Ziegler (Child support) [2023] AATA 4459 (22 December 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/SC026467
APPLICANT:  Mr Wolfe
OTHER PARTIES:  Child Support Registrar
Ms Ziegler

TRIBUNAL:Senior Member K Dordevic
DECISION DATE: 22 December 2023
DECISION:

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

·     for the period 21 October 2022 to 8 October 2023 Mr Wolfe’s adjusted taxable income is varied to $130,404;
·     for the period 9 October 2023 until a terminating event occurs in relation to the child [Child 1] Mr Wolfe’s adjusted taxable income is varied to $124,735;
·     for the period 21 October 2022 to 9 June 2023 Ms Ziegler’s adjusted taxable income is varied to $49,350; and
·     for the period 10 June 2023 until a terminating event occurs in relation to the child [Child 1] Ms Ziegler’s adjusted taxable income is varied to $19,812.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of either parent – earning capacity of either parent – 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

The Child Support (Assessment) Act 1989 (the Act) provides for an administrative assessment of the child support payable. It uses a formula which contains variables such as the parents’ adjusted taxable incomes and their percentages of care of the children. The Act also provides for a departure from the administrative assessment in certain circumstances.
This case was registered with Services Australia – Child Support (Child Support) on 14 February 2008 and has been collectable since 31 March 2009. The parents, Ms Ziegler (the mother) and Mr Wolfe (the father), have three children though only the youngest child [Child 1] (the child) born [in] January 2006 remains a child of the assessment. As the child is completing her Year 12 studies in 2024 Child Support have accepted an application to extend the administrative assessment until 8 November 2024.[1] At all relevant times the child is recorded as being in the mother’s 100% care.
[1] At folio 422, being the last date of the child’s secondary schooling
The father lodged a departure application on 10 September 2021. On 8 October 2021 a senior case officer determined that for the period 7 December 2021 until a terminating event occurs in relation to the child, the father’s adjusted taxable income is varied to $100,000 per annum.
On 7 February 2023, following a change of assessment application lodged by the father on 21 October 2022, a senior case officer determined that from 21 to 31 October 2022 the father’s adjusted taxable income is varied to $130,414 and the mother’s adjusted taxable income is…

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: [2023] AATA 4459
Decision Date: 22 December 2023

CaseChat Overview and Summary

The case of *Wolfe and Ziegler (Child Support)* concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth). The applicant sought to depart from the formula assessment of child support payable by the respondent. The Senior Member, K Dordevic SM, considered the income, property, financial resources, and earning capacity of both parents in determining whether to grant the departure.

The primary legal issue before the court was whether the grounds for departure from the child support formula assessment were established. Specifically, the court had to determine if the existing assessment was unfair due to circumstances relating to the income, property, financial resources, or earning capacity of either parent, as contemplated by the Act. The court was required to weigh these factors to ascertain if a departure was justified.

The Senior Member found that the grounds for departure were established. In reaching this conclusion, the court applied the principles outlined in the *Child Support (Registration and Collection) Act 1988*, which permit a departure from the formula assessment where it would be inequitable to disregard certain financial circumstances or earning capacities. The court considered the evidence presented regarding the financial positions and potential earnings of both parties and concluded that the standard assessment did not adequately reflect the reality of their circumstances. Consequently, the Senior Member set aside the original decision and substituted a new determination.

Orders