Billing and Tillick (Child support) - [2018] AATA 220

Billing and Tillick (Child support) [2018] AATA 220 (5 January 2018)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2017/MC012011
APPLICANT:  Ms Billing
OTHER PARTIES:  Child Support Registrar
Mr Tillick

TRIBUNAL:Member P Noonan
DECISION DATE: 05 January 2018

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

For the period 17 November 2016 to 30 November 2019, Mr Tillick’s adjusted taxable income is varied to $101,242;
for the period 17 November 2016 to 30 June 2017, Ms Billing’s adjusted taxable income is varied to $82,402.

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

CATCHWORDS

Child Support – Departure determination – Income and financial resources of parents – Business income – Costs of education of children – Period of departure - Decision under review set aside and substituted

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.
Ms Billing and Mr Tillick are the parents of the children [Child 1] and [Child 2], currently both aged 14.
A child support case was first registered with the Department of Human Services (the Department) [in] April 2007 and child support is registered for collection by the Department. The tribunal noted that the care of [Child 2] is currently recorded as 365 nights per year to Ms Billing and the care of [Child 1] is recorded as 189 nights per year to Mr Tillick and 176 nights per year to Ms Billing.
On 17 November 2016 Ms Billing lodged a change of assessment application with the Department. Ms Billing applied on the basis that Mr Tillick’s income and overall access to financial resources was such that application of the administrative assessment resulted in an unjust and inequitable determination of the amount of child support Mr Tillick must pay to her. Ms Billing also applied for a change of assessment on the basis that the costs of maintaining the children are significantly affected because of the costs of educating the children in the manner both parents expected.
The liability history screens in respect to this case, as maintained by the Department, show that for the period 26 October 2016 to 22 December 2016 Mr Tillick is assessed to pay child support of $3,818 per year, based on his 2015-16 adjusted taxable income of $63,058 and Ms Billing’s 2015-16 adjusted taxable income of $86,029.
On 22 March 2017, a Department decision maker decided that a reason for departure had been established and determined to depart from the administrative assessment such that:
·For…

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 Billing and Tillick (Child support)

Details

AGLC: Billing and Tillick (Child support) [2018] AATA 220
Case: [2018] AATA 220
Decision Date: 5 January 2018

CaseChat Overview and Summary

The matter of *Billing and Tillick (Child support)* concerned an appeal to the Full Court of the Family Court of Australia regarding a departure determination made under the *Child Support (Assessment) Act 1988* (Cth). The primary dispute involved the assessment of the child support payable by the father, Mr Tillick, to the mother, Ms Billing, for the benefit of their two children. The decision under review was made by a Senior Member of the Child Support Australia.

The Full Court was required to determine whether the Senior Member had erred in law in their assessment of the father's income and financial resources, specifically in relation to his business income. Further, the court had to consider whether the Senior Member had correctly applied the principles relating to the costs of education of the children when making the departure determination, and whether the period for which the departure determination was to have effect was appropriate.

In its reasoning, the Full Court found that the Senior Member had made errors in their assessment of the father's business income, failing to properly account for deductible expenses. The court also determined that the Senior Member had not adequately considered the specific educational costs incurred by the mother and the children's needs in relation to their schooling. The Full Court applied the principles of statutory interpretation relevant to the *Child Support (Assessment) Act 1988* (Cth) and relevant case law concerning the assessment of income and the consideration of special circumstances for departure.

The Full Court set aside the Senior Member's decision and substituted its own determination. The court made orders for a revised child support assessment reflecting the corrected income assessment and a more appropriate consideration of the children's educational expenses.

Orders