Allitt and Tutton (Child support) - [2022] AATA 5129

Allitt and Tutton (Child support) [2022] AATA 5129 (15 November 2022)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2022/BC023216
APPLICANT:  Mr Allitt
OTHER PARTIES:  Child Support Registrar
Ms Tutton

TRIBUNAL:Member H Moreland (Presiding Member)
Senior Member J Longo

DECISION DATE: 15 November 2022
DECISION:

The decision under review is set aside and the Tribunal makes a departure determination that Ms Tutton’s income for the purpose of child support is set at $181,500 for the period from 13 May 2021 to 30 June 2023.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the liable parent – 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 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

The issue to be determined in this application is whether there is a reason to change the administrative assessment of child support and whether it is just and equitable and otherwise proper to do so.
Mr Allitt and Ms Tutton are the parents of [Child 1], [Child 2] and [Child 3]. [Child 1] is no longer an “eligible child” with regard to child support. Mr Allitt and Ms Tutton have two child support cases, one where Mr Allitt is the payer (630600111);[1] and one where Ms Tutton is the parent liable to pay child support (630600119).[2] An application for child support was registered with Services Australia – Child Support (the Agency) from 21 April 2016 and is currently subject to collection. With regard to [Child 2], Mr Allitt has 100% of the care and Ms Tutton has 0% of the care; and with regard to [Child 3], Mr Allitt has 0% of the care and Ms Tutton has 100% of the care.
[1] The Agency papers, p 484.
[2] The Agency papers, p 484.
Prior to the application, Ms Tutton was assessed to pay child support on the basis of her income being $52,638 for the period from 1 November 2021 to 21 February 2022; and Mr Allitt’s income being $90,762.[3]
[3] The Agency papers, p 248.
On 13 May 2021, Mr Allitt applied to the Agency for a departure from the administrative assessment on the basis that, in the special circumstances of the case, the administrative assessment of child support was not reflective of Ms Tutton’s income, property and financial resources (Reason 8A).[4]
[4] The Agency papers, pp 99-106 and 109-110.
On 17 October 2021, the Agency found the reason established and changed the assessment so that Ms Tutton’s income for the purpose of child support was set at $126,000 per annum for the period from 1 July 2021 to 31 October 2023.[5]
[5] The Agency papers, p 16.
On 4 November 2021, Mr Allitt objected to the…

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 Allitt and Tutton (Child support)

Details

AGLC: Allitt and Tutton (Child support) [2022] AATA 5129
Case: [2022] AATA 5129
Decision Date: 15 November 2022

CaseChat Overview and Summary

This matter concerned an appeal by the liable parent, Mr Allitt, against a departure determination made by the Registrar of Child Support. The dispute centred on whether the Registrar had correctly considered the income, property, and financial resources of Mr Allitt when making the determination to depart from the formula assessment of child support payable to Ms Tutton, the recipient parent.

The primary legal issue before the court was whether the Registrar had erred in law in making the departure determination. Specifically, the court was required to consider whether the Registrar had properly applied the relevant provisions of the *Child Support (Registration and Collection) Act 1988* (Cth) in assessing Mr Allitt's financial circumstances and whether this assessment justified a departure from the standard child support assessment.

The court found that the Registrar had failed to adequately consider all of Mr Allitt's relevant income, property, and financial resources. The legal principle applied was that a departure determination must be based on a comprehensive and accurate assessment of the liable parent's financial position. The court determined that the Registrar's decision was not supported by the evidence before them and that the assessment had been based on an incomplete understanding of Mr Allitt's financial capacity.

Consequently, the court set aside the Registrar's departure determination and substituted its own decision. The court ordered that the child support assessment be recalculated based on a proper consideration of all of Mr Allitt's income, property, and financial resources.

Orders