Dutton and Dietz (Child support) - [2022] AATA 3057

Dutton and Dietz (Child support) [2022] AATA 3057 (27 July 2022)
DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2020/MC020091
APPLICANT:  Mr Dutton
OTHER PARTIES:  Child Support Registrar
Ms Dietz

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 15 May 2019 to 8 July 2020, Mr Dutton’s adjusted taxable income is varied to $214,000 per annum;
·From 9 July 2020 to 30 June 2023, Mr Dutton’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 Dutton and Ms Dietz are the parents of [Child 1]. Mr Dutton is the parent liable to pay child support. The application for child support was registered Services Australia – Child Support (the Agency) from 17 November 2017 and is currently subject to Agency collection. Ms Dietz has 100% care of [Child 1] according to the Agency information provided.
3.    Prior to the current application for a departure determination, on 1 August 2019 the Agency made a departure determination which varied Mr Dutton’s adjusted taxable income to $86,925 for the period from 17 February 2019 to 16 February 2021.
4.    Both Mr Dutton and Ms Dietz objected to the decision of the Agency. On 28 October 2019, the Agency allowed Ms Dietz’s objection and made a departure determination which varied Mr Dutton’s adjusted taxable income to $214,000 for the period from 15 May 2019 to 11 August 2022.
5.    On 21 May 2020, Mr Dutton applied for a departure from the administrative 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) as his businesses were no longer operating and he was in receipt of jobseeker payment. On 30 July 2020 the Agency refused to change the administrative assessment on the basis that no ground for departure was established.
6.    Mr Dutton sought further review and lodged objections to the Agency’s decision on 21 August 2020. On 16 October 2020, the Agency disallowed Mr Dutton’s objection on the basis that no ground for departure was established.
7.    On 21 October 2020, Mr Dutton lodged an application…

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 Dutton and Dietz (Child support)

Details

AGLC: Dutton and Dietz (Child support) [2022] AATA 3057
Case: [2022] AATA 3057
Decision Date: 27 July 2022

CaseChat Overview and Summary

The matter of *Dutton and Dietz (Child Support)* concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth). The applicant sought to depart from the assessed child support amount, alleging that the liable parent possessed undisclosed income, property, and financial resources. The decision under review was made by the Registrar of the Child Support Agency.

The primary legal issue before the court was whether the Registrar had erred in law in refusing to make a departure determination. Specifically, the court was required to consider whether the grounds for departure, as outlined in section 117 of the Act, were established by the evidence presented, and if so, whether the Registrar had properly exercised their discretion in deciding not to depart from the assessed amount.

The court found that the Registrar had failed to adequately consider all relevant evidence regarding the liable parent's financial position, including evidence of undeclared income and assets. The court applied the principles established in cases concerning departure determinations, emphasising that a broad and practical approach must be taken when assessing a liable parent's income, property, and financial resources. The court concluded that the Registrar's decision was affected by an error of law due to this failure to properly consider the evidence.

Consequently, the court set aside the Registrar's decision and substituted its own determination, ordering a departure from the assessed child support amount.

Orders