Dunlop and Nelson (Child support) - [2022] AATA 3056

Dunlop and Nelson (Child support) [2022] AATA 3056 (27 July 2022)
DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2020/MC020086
APPLICANT:  Mr Dunlop
OTHER PARTIES:  Child Support Registrar
Ms Nelson

TRIBUNAL:Senior Member J Longo
DECISION DATE: 27 July 2022
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the objection is allowed so as to determine:
·From 1 May 2020 to 8 July 2020, to vary Mr Dunlop’s adjusted taxable income to $214,000 per annum;
·From 9 July 2020 to 30 June 2023, Mr Dunlop’s adjusted taxable income is varied to $36,348 per annum.

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
1.    The issue to be determined in this application is whether there is a reason to change the administrative assessment of child support and whether it is just and equitable and otherwise proper to do so.
2.    Mr Dunlop and Ms Nelson are the parents of [Child 1] and [Child 2]. Mr Dunlop is the parent liable to pay child support. The application for child support was registered with Services Australia – Child Support (the Agency) and has been subject to Agency collection since 23 January 2014. Ms Nelson has 100% care of [Child 1] and [Child 2] according to the Agency information provided.
3.    Prior to the current application for a departure determination, the administrative assessment of child support was as follows:
·For the period 1 November 2019 to 11 December 2020, the annual rate was $478 based on Mr Dunlop’s 2018/2019 adjusted taxable income of $27,469 and Ms Nelson’s 2018/2019 provisional income of $14,276.

4. On 26 March 2020, the Agency initiated a change to the assessment on the basis that, in the special circumstances of the case, the administrative assessment of child support was not reflective of his income, property and financial resources (Reason 8A) in relation to Mr Dunlop’s income and financial resources. Mr Dunlop disagreed with the proposed change to the administrative assessment and cross-applied on the same basis in relation to his own income. Ms Nelson did not respond to the initial application nor to Mr Dunlop’s cross-application.
5. On 9 May 2020, the Agency found Reason 8A established and departed from the administrative assessment as follows:
·For the period 1 May 2020 until both children ([Child 1] and [Child 2]) cease to be eligible children of the assessment, Mr Dunlop’s adjusted taxable income is set at $100,000.

6. On 27 May 2020, Mr Dunlop objected to the decision of the Agency. Ms Nelson responded to the objection…

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 Dunlop and Nelson (Child support)

Details

AGLC: Dunlop and Nelson (Child support) [2022] AATA 3056
Case: [2022] AATA 3056
Decision Date: 27 July 2022

CaseChat Overview and Summary

The matter of *Dunlop and Nelson* concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth). The applicant sought to have the assessed child support payable by the respondent varied, alleging that the respondent possessed income, property, and financial resources beyond those disclosed in the child support assessment. The decision was made by SM Longo.

The primary legal issue before the court was whether the respondent's actual financial position warranted a departure from the standard child support assessment. This required the court to consider whether the respondent had deliberately reduced their income or otherwise dealt with their property or financial resources in a way that diminished their capacity to pay the assessed child support amount.

SM Longo found that a ground for departure was established, concluding that the respondent had indeed manipulated their financial circumstances to avoid their child support obligations. The court applied the principles of the *Child Support (Registration and Collection) Act 1988*, focusing on the need to ensure that child support assessments accurately reflect a parent's capacity to pay. The court determined that the respondent's actions constituted a deliberate reduction of their income and disposition of assets, thereby diminishing their ability to meet their child support responsibilities.

Consequently, SM Longo set aside the original departure determination and substituted it with a new decision, ordering a departure from the assessment based on the respondent's true financial position.

Orders