Kirk and Cross (Child support) - [2018] AATA 3798

Kirk and Cross (Child support) [2018] AATA 3798 (2 August 2018)

DIVISION: Social Services & Child Support Division

REVIEW NUMBER: 2018/SC013437

APPLICANT: Mr Kirk

OTHER PARTIES: Child Support Registrar

Ms Cross

TRIBUNAL: Member J Cuthbert

DECISION DATE: 2 August 2018

DECISION:

The tribunal sets aside the decision under review and substitutes a decision to depart from the child support assessment from 7 August 2017 to 31 March 2020 by varying Mr Kirk’s adjusted taxable income to $120,000.

CATCHWORDS

Child support - Departure determination - Income, property and financial resources of both parents - Business income - Special needs of the child - 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 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

HISTORY

This review concerns an application made by Ms Cross on 7 August 2017 for a change to a child support assessment.
Ms Cross and Mr Kirk are the parents of [Child 1] (born 2011). Since 18 September 2012 there has been a child support assessment in place, made by the Department of Human Services – Child Support. The assessment is currently based on Ms Cross having a care percentage of 86% and Mr Kirk having a care percentage of 14%.
For the child support period commencing 1 October 2016 Mr Kirk was assessed to pay an annual rate of child support of $1,373, based on his 2015/16 adjusted taxable income of $18,231 and Ms Cross’s 2015/16 adjusted taxable income of $19,744.
On 7 August 2017 Ms Cross applied to the Department for a departure from the assessment on the grounds that Mr Kirk’s income, property and financial resources were not properly reflected in the assessment and that she had significant costs related to [Child 1]’s special needs.
On 19 September 2017 a decision was made to depart from the child support assessment by varying Mr Kirk’s adjusted taxable income to $137,280 from 7 August 2017 to 30 November 2018.
An application for a departure from the assessment made by Mr Kirk on 21 November 2017 was refused by the Department on 8 December 2017. However, Mr Kirk was granted an extension of time to lodge an objection to the decision made on 19 September 2017. Ms Cross also sought to object to that decision. Mr Kirk’s objection was partly allowed on 20 January 2018. The objections officer set aside the earlier decision and decided to depart from the assessment by varying Mr Kirk’s adjusted taxable income to $81,353 from 7 August 2017 to 31 March 2020.
On 5 February 2018 Mr Kirk lodged an application for a review of the objection decision with the tribunal. His application was dismissed on 15 May 2018 as he withdrew his application after…

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 Kirk and Cross (Child support)

Details

AGLC: Kirk and Cross (Child support) [2018] AATA 3798
Case: [2018] AATA 3798
Decision Date: 2 August 2018

CaseChat Overview and Summary

This matter concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth) by the applicant, Kirk, against the respondent, Cross. The dispute centred on the child support assessment for their child, and the applicant sought to depart from the standard assessment on various grounds, including the income, property, and financial resources of both parents, and the special needs of the child. The decision was made by J Cuthbert M.

The primary legal issue before the court was whether the existing child support assessment was unjust or inequitable to the applicant, and if so, whether a departure from that assessment was warranted. This required the court to consider the specific provisions of the *Child Support (Registration and Collection) Act 1988* relating to departure determinations, including the grounds upon which such a departure could be made and the factors the court must take into account when exercising its discretion.

J Cuthbert M found that the grounds for departure were established, particularly in relation to the financial circumstances of the parties and the special needs of the child. The court's reasoning involved a detailed examination of the evidence presented concerning the income and financial resources of both Kirk and Cross, as well as the specific costs associated with meeting the child's special needs. Applying the principles of the Act, the court concluded that the standard assessment would indeed be unjust and inequitable in the circumstances. Consequently, the court set aside the original decision and substituted its own determination.

Orders