Hopkin and Conlee (Child support) - [2021] AATA 5189

Hopkin and Conlee (Child support) [2021] AATA 5189 (14 December 2021)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2021/SC021641
APPLICANT:  Mr Hopkin
OTHER PARTIES:  Child Support Registrar
Miss Conlee

TRIBUNAL:Member M Douglas
DECISION DATE: 14 December 2021
DECISION:

The decision under review is varied such that for the period 1 October 2020 to 16 August 2023 the annual rate of child support payable by Mr Hopkin is varied to $7,000.

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 varied

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 Hopkin and Miss Conlee are the parents of [Child 1] and [Child 2], in regards to whom the Child Support Registrar has issued administrative assessments of child support.
An assessment of child support is made in accordance with the provisions of Part 5 of the Child Support (Assessment) Act1989 (the Act). Broadly speaking, those provisions prescribe formulae that apply to several variables to work out the amount of child support one parent must pay the other. Those variables include the parents’ taxable incomes from the financial year before the start of the child support period to which the assessment relates, the level of care that each parent provides for their children and the cost of the children.
If a parent believes there are special circumstances, the parent may apply to the Registrar under section 98B of the Act for a determination to depart from those provisions of the Act by which an assessment of child support is made. The Child Support Registrar, who acts through Services Australia – Child Support (hereafter Services Australia), describes such an application as a “change of assessment application”.
On 13 March 2020 Miss Conlee made such an application to Services Australia, seeking a change to be made to the assessment for the period after 1 July 2020. The assessment for that period was based on Mr Hopkin’s 2019 taxable income of $7,765 and Miss Conlee’s 2019 taxable income of $54,821. It was also based on Miss Conlee having care of [Child 2] all of the time and having care of [Child 1] for 219 days of the year and Mr Hopkin otherwise having care of [Child 1]. The assessment required Mr Hopkin to pay no child support to Miss Conlee.
Briefly, Miss Conlee’s reason for making her change of assessment application, as articulated in her application form, was that Mr Hopkin was capable of earning a greater income than his 2019 taxable income of $7,765. She made reference in her application to a prior decision of the Tribunal, differently constituted, dated 9 April 2018 and attached to her…

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 5189
Decision Date: 14 December 2021

CaseChat Overview and Summary

The matter of *Hopkin and Conlee* concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth). The primary dispute involved the income, property, and financial resources of the liable parent, with the applicant seeking to depart from the assessed child support amount. The decision was made by M Douglas M.

The court was required to determine whether a ground for departure from the child support assessment had been established, and if so, whether it was just and equitable to make a departure determination. This involved considering the specific financial circumstances of the liable parent and their impact on their capacity to meet their child support obligations.

In reaching its decision, the court applied the principles governing departure determinations under the *Child Support (Registration and Collection) Act 1988*. The court found that a ground for departure was established, necessitating a consideration of whether to depart from the assessment. The court ultimately varied the decision under review.

Orders