Amin and Nissen (Child support) - [2023] AATA 2160

Amin and Nissen (Child support) [2023] AATA 2160 (14 June 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2022/SC025263
APPLICANT:  Mr Amin
OTHER PARTIES:  Child Support Registrar
Ms Nissen

TRIBUNAL:Member F Staden, Presiding Member
Senior Member K Dordevic

DECISION DATE: 14 June 2023
DECISION:

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

For the period 17 May 2022 to 31 October 2025, Mr Amin’s adjusted taxable income is varied to $60,000; and

For the period 17 May 2022 to 31 October 2025, Mr Amin’s self-support amount is reduced by 35%.

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 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

Mr Amin and Ms Nissen are the separated parents of [Child 1], born 2020. There has been a child support assessment for this case from 12 June 2020, with Mr Amin the parent liable to pay child support. Collection of child support by Services Australia – Child Support (Child Support) has been in place from 12 June 2020. [Child 1] is recorded as being in the greater than primary care of Ms Nissen (100%) from the start of the assessment.
There have been no previous change of assessment decisions in this case.
On 5 January 2022, Child Support provided the parents with an updated assessment for the then current child support period:
· For the period 1 August 2021 to 31 October 2022, Mr Amin’s annual child support liability is $446 (the minimum annual rate) based on Mr Amin’s 2020/21 adjusted taxable income of $25,730 and Ms Nissen’s 2020/21 adjusted taxable income of $28,812.
Following submissions from Ms Nissen, on 17 May 2022 Child Support informed Mr Amin and Ms Nissen by letter that the incomes used for them in the child support assessment were being reviewed as there was information to suggest that either or both of those incomes did not reflect a parent’s capacity to financially support their child.
On 30 June 2022, Child Support informed Mr Amin and Ms Nissen by letter that the capacity to pay review was recommending that Mr Amin’s adjusted taxable income be assessed as $46,500 and that no change be made to the adjusted taxable income used for Ms Nissen.
On 14 July 2022, Child Support provided the parents with an assessment for the upcoming child support period:
· For the period 1 August 2022 to 31 October 2023, Mr Amin’s annual child support liability is $459 (the minimum annual rate) based on Mr Amin’s provisional 2021/22 adjusted taxable income of $26,476 and Ms Nissen’s 2021/22 adjusted taxable…

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 2160
Decision Date: 14 June 2023

CaseChat Overview and Summary

This matter concerned an appeal by the liable parent, Mr Amin, against a departure determination made by the Registrar of the Child Support Agency. The dispute centred on whether the Registrar had correctly considered the income, property, and financial resources of Mr Amin when making the determination to depart from the standard child support assessment. The appeal was heard by the Child Support Special Powers Division of the Federal Magistrates Court.

The court was required to determine whether the Registrar had erred in law or fact in making the departure determination. Specifically, the court had to consider whether the Registrar had properly assessed Mr Amin's financial position and whether this assessment justified a departure from the formula-based child support assessment. The central legal issue was the application of the relevant provisions of the *Child Support (Registration and Collection) Act 1988* concerning departure from a child support assessment based on the liable parent's financial circumstances.

The court found that the Registrar had failed to adequately consider all relevant aspects of Mr Amin's income, property, and financial resources. The court reasoned that a departure determination requires a comprehensive evaluation of the liable parent's capacity to pay, and in this instance, the Registrar's assessment was incomplete. Consequently, the court set aside the Registrar's departure determination and substituted its own decision, which involved a revised assessment of Mr Amin's financial position and its impact on his child support obligations.

Orders