Corwin and Corwin (Child support) - [2021] AATA 3606

Corwin and Corwin (Child support) [2021] AATA 3606 (20 August 2021)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2021/PC021173
APPLICANT:  Mr Corwin
OTHER PARTIES:  Child Support Registrar
Ms Corwin

TRIBUNAL:Member S Brakespeare
DECISION DATE: 20 August 2021
DECISION:

The decision under review is varied so that there is a departure determination in the following terms:

for the period 20 December 2019 to 30 June 2020 Mr Corwin’s adjusted taxable income is varied to $103,308;
for the period 1 July 2020 to 30 June 2021 Mr Corwin’s adjusted taxable income is varied to $87,536;
from 1 July 2021 Mr Corwin’s child support liability is to be assessed in accordance with the administrative assessment provisions contained in Part 5 of the Child Support (Assessment) Act 1989.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the liable parent – distribution of income from trust - 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 Corwin is the parent liable to pay child support to Ms Corwin in respect of their children [Child 1] who is 15, [Child 2] who is 11 and [Child 3] who is 4.
On 1 July 2020 Ms Corwin applied for a change of assessment citing a number of grounds. On 15 October 2020 an officer of the Child Support Agency decided to make a departure determination in the following terms (the original decision):
·     for the period 20 December 2019 to 30 June 2020 Mr Corwin’s adjusted taxable income is varied to $111,778;
·     for the period 1 July 2020 to 31 December 2020 Mr Corwin’s adjusted taxable income is varied to $100,000; and
·      for the period 1 January 2021 to 30 November 2021 Mr Corwin’s adjusted taxable income is varied to $80,000.
Mr Corwin objected to the original decision. On 18 March 2021 an objections officer partly allowed the objection and made a departure determination in the following terms (the objection decision):
· for the period 20 December 2019 to 30 June 2020 Mr Corwin’s adjusted taxable income is varied to $130,937;
· for the period 1 July 2020 to 31 December 2022 Mr Corwin’s adjusted taxable income is varied to $84,800.
Mr Corwin lodged an application for review of the objection decision with the tribunal. A telephone directions hearing was convened on 7 July 2021. Both parties participated and complied with the directions that were issued.
A hearing was held on 20 August 2021. Mr Corwin and Ms Corwin gave evidence on affirmation to the tribunal via conference telephone. The Child Support Agency provided the tribunal and the parties with bundles of documents relevant to the review (910 pages). The tribunal also gather further documents from…

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 Corwin and Corwin (Child support)

Details

AGLC: Corwin and Corwin (Child support) [2021] AATA 3606
Case: [2021] AATA 3606
Decision Date: 20 August 2021

CaseChat Overview and Summary

The matter of *Corwin and Corwin* concerned an application to review a departure determination made by the Child Support Registrar. The dispute centred on the assessment of the liable parent's income for child support purposes, specifically in relation to distributions received from a discretionary trust. The review was heard by the court.

The primary legal issue before the court was whether the Child Support Registrar had erred in its assessment of the liable parent's income, particularly concerning the inclusion of distributions from the trust. The court was required to determine if these distributions constituted income for the purposes of child support assessment under the relevant legislation, and if the Registrar's decision to depart from the standard assessment was justified.

The court's reasoning focused on the nature of discretionary trusts and the liable parent's entitlement to income derived from them. Applying established principles of trust law and child support legislation, the court considered whether the liable parent had a present or future entitlement to the trust's income, or if the distributions were made in a manner that could be considered income for child support purposes. The court found that the Registrar's decision was not supported by the evidence and that the assessment of the liable parent's income had been incorrectly calculated. Consequently, the court set aside the Registrar's departure determination and substituted its own decision regarding the child support assessment.

Orders