Derick and Derick (Child support) - [2021] AATA 2905

Derick and Derick (Child support) [2021] AATA 2905 (1 July 2021)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2021/AC020819
APPLICANT:  Mr Derick
OTHER PARTIES:  Child Support Registrar
Ms Derick

TRIBUNAL:Member Y Webb
DECISION DATE: 01 July 2021
DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the liable parent – benefits derived from business and trust – decision under review affirmed

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

This review relates to the issue of child support regarding the two children of Mr Derick and Ms Derick. The children are now aged 13 and 12. Services Australia (“Child Support Agency”) records the children are in the 56% care of Ms Derick and the 44% care of Mr Derick.
The child support case was first registered by the Child Support Agency on 25 November 2013 and has been collectable by the Agency since that date.
On 14 September 2020, Mr Derick applied to the Child Support Agency for a change to the administrative assessment on the basis of Reason 8A.
At the time of Mr Derick’s application for a change to the assessment a previous change of assessment decision was still in place; that was a decision of the objections officer [A] made on 25 February 2019. Objections officer [A] decided that for the period 1 September 2018 to 30 June 2020 Mr Derick’s adjusted taxable income would be varied to $58,854 per annum and for the period 1 July 2020 to 31 August 2021 Mr Derick’s adjusted taxable income would be varied to $61,797.
This meant that for the period 1 September 2020 to 31 August 2021 the annual rate of child support payable by Mr Derick was $2,982 per annum based on the income set by the change of assessment decision of $61,797 and Ms Derick’s 2019/2020 adjusted taxable income of $47,085.
On 10 November 2020 the original decision maker decided to end objections officer [A]’s decision on 9 November 2020 and for the period 10 November 2020 to 30 November 2021 to vary Mr Derick’s adjusted taxable income to $171,173.
Mr Derick objected to that decision and on 15 January 2021 an objections officer set aside the original decision maker’s decision and decided to end objections officer [A]’s decision on 27 April 2020 and for the period 28 April 2020 to 27 April 2021 to vary Mr Derick’s adjusted taxable income to $142,137 and that from 28 April 2021 to 30 September 2021 Mr Derick’s adjusted taxable income should be varied to $46,000 per annum.
On 17 February 2021 Mr Derick requested a review by the Administrative Appeals Tribunal (“the Tribunal”). A telephone directions hearing was conducted with both…

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: [2021] AATA 2905
Decision Date: 1 July 2021

CaseChat Overview and Summary

The matter of *Derick and Derick (Child Support)* concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth). The applicant sought to have the child support assessment varied based on the income, property, and financial resources of the liable parent. The decision under review was affirmed by the court.

The primary legal issue before the court was whether the liable parent's income, property, and financial resources, particularly benefits derived from a business and a trust, warranted a departure from the child support assessment. This required the court to consider the extent to which these resources were available to the liable parent and whether they were being used to reduce their effective child support obligations.

The court's reasoning focused on the principles governing departure determinations, which allow for adjustments to assessments when the standard formula would not be fair and just. The court examined the evidence presented regarding the liable parent's financial position, including their involvement with and benefits received from the business and trust. The court applied the relevant provisions of the *Child Support (Registration and Collection) Act 1988* to determine if these financial resources constituted a basis for departure. The court affirmed the decision under review, indicating that the applicant had not satisfied the threshold for a departure determination.

Orders