Klayman and Nihill (Child support) - [2021] AATA 5039

Klayman and Nihill (Child support) [2021] AATA 5039 (8 September 2021)

DECISION AND REASONS FOR DECISION

DIVISION: Social Services & Child Support Division

REVIEW NUMBER: 2021/SC021382

APPLICANT: Mr Klayman

OTHERPARTIES: Child Support Registrar Mrs Nihill

TRIBUNAL: Member K Dordevic

DECISION DATE: 8 September 2021

DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that from:

· 27 April 2020 to 26 April 2021 the father’s adjusted taxable income is varied to
$203,000; and

· 27 April 2021 until a terminating event occurs in relation to the child the father’s adjusted taxable income is varied to $206,800.

CHILD SUPPORT – departure determination – income, property and financial resources of the liable parent – benefits derived from inheritance – 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 Child Support (Assessment) Act 1989 (the Act) provides for an administrative assessment of the child support payable. It uses a formula which contains variables such as the parents’ adjusted taxable incomes and their percentages of care of the children. The Act also provides for a departure from the administrative assessment in certain circumstances.

2.Mr Klayman and Mrs Nihill are the parents of three children. This case was registered with the Department of Human Services (now Services Australia) – Child Support on 10 July 2012 and has been collectable since that date. The parents’ youngest child remains subject to the administrative assessment, and the care record reflects that the child is in the mother’s 100% care. The case is due to end on 19 November 2021, when the child completes her Year 12 studies.

3.After an application was lodged by the mother on 17 August 2020, a senior case officer decided on 7 November 2020 to vary the father’s adjusted taxable income to $110,000 from 1 November 2020 until a terminating event occurs. The father lodged a timely objection and on 18 February 2021 an objections officer partly allowed the objection, varying the father’s adjusted taxable income to $90,000 from 1 November 2020 until a terminating event occurs.

4.On 19 March 2021 the father sought further review with the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal). A directions hearing was held on 21 July 2021 and directions were issued, requiring compliance by 13 August 2021. The tribunal also issued an order, pursuant to subsection 95H(1) of the Child Support (Registration and Collection) Act 1988, to the father’s brother, [Brother A] , Executor of the Estate of the late [Mother A] to provide a statutory declaration setting out the following information:

·The gross funds available for distribution from the Estate of [Mother A];

·The gross inheritance received by Mr Klayman from the…

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.

Keep reading for free

Create a free CaseChat account to read Klayman and Nihill (Child support) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] AATA 5039
Decision Date: 8 September 2021

CaseChat Overview and Summary

This matter concerned an appeal by the liable parent, Mr Klayman, against a departure determination made by the Registrar of the Child Support Agency. The dispute centred on whether the Registrar had correctly assessed Mr Klayman's child support liability, specifically in relation to benefits he derived from an inheritance. The appeal was heard by the Federal Circuit Court of Australia.

The primary legal issue before the Court was whether the Registrar had erred in her assessment of Mr Klayman's income, property, and financial resources when making the departure determination. This involved considering the extent to which an inheritance, and benefits derived from it, should be taken into account when calculating child support obligations.

The Court reviewed the evidence presented and the Registrar's decision. It was found that the Registrar had failed to adequately consider the financial benefits Mr Klayman had received from his inheritance. The Court applied the principles of the *Child Support (Registration and Collection) Act 1988*, which allow for departure from the standard assessment formula where it would be inequitable to do so. The Court reasoned that the inheritance represented a significant financial resource that had not been properly factored into the child support assessment.

Consequently, the Court set aside the Registrar's departure determination and substituted its own decision, which took into account the benefits derived from the inheritance in a manner it considered more equitable.

Orders