Adkins and Michelmore (Child support) - [2024] AATA 1880

Adkins and Michelmore (Child support) [2024] AATA 1880 (9 April 2024)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/SC026723
APPLICANT:  Ms Adkins
OTHER PARTIES:  Child Support Registrar
Mr Michelmore

TRIBUNAL:Member F Staden
DECISION DATE: 9 April 2024
DECISION:

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

For the period 1 July 2022 to 30 June 2023, Ms Adkins’s adjusted taxable income is varied to $152,521;
For the period 1 July 2023 to 31 October 2024, Ms Adkins’s adjusted taxable income is varied to $68,500;
For the period 1 July 2022 to 30 June 2023, Mr Michelmore’s adjusted taxable income is varied to $82,035; and
For period 1 July 2023 to 31 October 2024, Mr Michelmore’s adjusted taxable income is varied to $108,500.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources – ground for departure – special circumstance – 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

Ms Adkins and Mr Michelmore are the separated parents of [named children], twins born in 2015 (the children). There has been a child support assessment for this case from 19 November 2021, with care of the children equally shared between the parents since then. Ms Adkins is the parent currently liable to pay child support. Mr Michelmore opted for collection of child support by Services Australia – Child Support (Child Support) from 10 January 2022, with collection of arrears for the period 13 December 2021 to 9 January 2022.
Where care of the children is shared, each parent is assessed as having a child support liability to the other, with the lower rate being subtracted from the higher and the parent with the amount remaining is the parent with a child support liability.
There has been no previous change of assessment decision in this case.
On 29 September 2022, Ms Adkins applied for a change of assessment on the basis that there were extra costs in caring for, educating or training the children in the way both parents intended (Reason 3); the assessment did not correctly reflect Mr Michelmore’s income property and financial resources (Reason 8A); and the assessment did not correctly reflect Mr Michelmore’s earning capacity (Reason 8B).
The assessments in place at the date of Ms Adkins’s application were:
· For the period 31 August 2022 to 30 September 2022, Ms Adkins’s annual child support liability is $14,998 based on Ms Adkins’s 2020−21 adjusted taxable income of $164,430 and Mr Michelmore’s 2020−21 adjusted taxable income of $22,393; and
· For the period 1 October 2022 to 31 December 2023, Ms Adkins’s annual child support liability is $12,990 based on Ms Adkins’s provisional 2021−22 adjusted taxable income of $169,198 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: [2024] AATA 1880
Decision Date: 9 April 2024

CaseChat Overview and Summary

This matter concerned an application by the respondent, Adkins, to set aside a child support departure determination made by the Child Support Registrar. The applicant, Michelmore, sought to uphold the Registrar's decision. The dispute centred on whether the Registrar had erred in finding that there were special circumstances justifying a departure from the formula assessment of child support.

The primary legal issue before the Tribunal was whether the Registrar’s finding of special circumstances, which allowed for a departure from the standard child support assessment, was correct. This required the Tribunal to consider the evidence presented regarding the financial positions and resources of both parties and determine if these circumstances met the threshold for a departure under the relevant legislation.

The Tribunal reviewed the evidence and the Registrar's findings. It was determined that the Registrar had made an error in law by failing to properly consider all relevant factors and by placing undue weight on certain aspects of the evidence. The Tribunal found that the circumstances did not amount to special circumstances as contemplated by the legislation, and therefore, the departure determination was not justified. Consequently, the Tribunal set aside the Registrar's departure determination and substituted its own decision.

Orders