Docherty and Lovatt (Child support) - [2018] AATA 4156

Docherty and Lovatt (Child support) [2018] AATA 4156 (2 October 2018)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2017/MC013031
APPLICANT:  Ms Docherty
OTHER PARTIES:  Child Support Registrar
Mr Lovatt

TRIBUNAL:Member R Anderson
DECISION DATE: 02 October 2018
DECISION:

The decision under review is affirmed.

CATCHWORDS
CHILD SUPPORT – departure determination – income, property, financial resources and earning capacity of the parents – necessary commitments for self-support – costs of education of the children – no ground for departure exists – refusal to make a departure determination – decision under review affirmed

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

Mr Lovatt and Ms Docherty are the parents of [Child 1] and [Child 2]. [Child 1] ceased to be a child of the assessment following completion of her secondary school education on 24 November 2017. According to records of the Department of Human Services – Child Support (the Department), the child support assessment whereby Mr Lovatt was the parent responsible for paying child support to Ms Docherty was registered on 5 March 2015. The child support assessment whereby Ms Docherty is the parent responsible for paying child support to Mr Lovatt commenced on 1 July 2016. The Department has been responsible for the collection of child support from Ms Docherty since 1 July 2016.
At that time, the administrative assessment calculated the child support liability on the basis of the income recorded by each parent on their most recent income tax returns, as lodged with the Australian Taxation Office (ATO), being the 2014/2015 year. This resulted in child support payable by Ms Docherty of $2,087 per annum.
It is open to either parent to lodge an application for a departure from the administrative assessment under Part 6A of the Child Support (Assessment) Act 1989 (the Act) if they consider the administrative assessment results in an unfair amount of child support payable by one parent. Ms Docherty lodged such an application on 4 August 2016 on the basis that the administrative assessment produced an unfair outcome due to the income, property and financial resources available to Mr Lovatt (Reason 8).
On 9 December 2016, a delegate of the child support registrar found that Reason 8 was established. Consequently, the adjusted taxable income of Mr Lovatt was varied to $142,000 for the period 1 September 2016 to 28 February 2018. On 28 February 2017, a decision was made by the Department to reduce the care attributed to Ms Docherty in respect of [Child 1] from 58% to 42% from 30 September 2016. These decisions made little difference to the annual rate of child support payable by Ms Docherty, increasing to $2,579. A further increase to $3,962 per annum was as a result of Ms Docherty’s increased…

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 Docherty and Lovatt (Child support)

Details

AGLC: Docherty and Lovatt (Child support) [2018] AATA 4156
Case: [2018] AATA 4156
Decision Date: 2 October 2018

CaseChat Overview and Summary

The case of Docherty and Lovatt concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth). The applicant sought to vary the assessed child support payable by the respondent. The primary dispute revolved around the parties' respective incomes, property, financial resources, earning capacities, and the necessary commitments each parent had for their own self-support, as well as the costs associated with the education of the children.

The court was required to determine whether any of the grounds for a departure from the child support assessment, as outlined in the *Child Support (Registration and Collection) Act 1988*, were met. Specifically, the court had to consider if the circumstances of the parties were exceptional and warranted a departure, taking into account factors such as their financial positions and the costs of raising the children.

The court found that no grounds for a departure determination existed. It reasoned that the evidence presented did not establish that the existing child support assessment was unfair or that the circumstances of the parties fell within the exceptional categories contemplated by the legislation. Consequently, the court affirmed the decision to refuse to make a departure determination.

Orders