Krout and Tipton (Child support) - [2021] AATA 4499

Krout and Tipton (Child support) [2021] AATA 4499 (21 September 2021)

DIVISION:Social Services & Child Support Division
REVIEW NUMBERS: 2021/PC021222 & 2021/PC021288
APPLICANTS: Ms Krout / Mr Tipton

OTHER PARTIES: Child Support Registrar

Mr Tipton / Ms Krout

TRIBUNAL: Member P Jensen

DECISION DATE: 21 September 2021

DECISION:

The decision under review is set aside and, in substitution, Ms Krout’s adjusted taxable income is varied to $75,000 per annum and Mr Tipton’s adjusted taxable income is varied to $75,000 per annum from 1 July 2020 to 30 June 2022.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of both parents – business income – failure to comply with directions – costs of education – decision to depart based on financial resources – 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

Introduction

Ms Krout and Mr Tipton are the parents of [Child 1] who was born in 2012 and [Child 2] who was born in 2013. A child support case was registered in 2015 with what is commonly called the Child Support Agency or CSA. Ms Krout was recorded as providing 60% care and Mr Tipton was recorded as providing 40% care for both children from July 2018. Each parent was recorded as providing 50% care for both children from July 2020. There might have recently been another change in the parents’ pattern of care of the children. Ms Krout said Mr Tipton was withholding care. I did not allow Mr Tipton to respond to Ms Krout’s statement because the issue was not relevant to the decision under review. If a change in care has been reported to the CSA, the CSA will make a care decision in due course.
The Child Support (Assessment) Act 1989 (“the Act”) provides for an administrative assessment of 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. From 1 July 2020 the administrative assessment was based on Ms Krout’s provisional 2018-19 adjusted taxable income of $19,754 and Mr Tipton’s estimate of income of $75,191, and Mr Tipton was required to pay $7,668 per annum in child support. From 30 July 2020, Mr Tipton’s rate of child support payable reduced to $5,898 per annum as a result of a change in care.
The Act also provides for a departure from the administrative assessment in certain circumstances. In March 2019, Mr Tipton applied for a departure from the administrative assessment on the basis of the children’s private school fees. His application was refused. Neither parent objected to that decision.
On 26 August 2020, Mr Tipton lodged another departure application. In October 2020, Ms Krout lodged a…

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 Krout and Tipton (Child support)

Details

AGLC: Krout and Tipton (Child support) [2021] AATA 4499
Case: [2021] AATA 4499
Decision Date: 21 September 2021

CaseChat Overview and Summary

This matter concerned an appeal by the father, Krout, against a departure determination made by the Registrar of the Child Support Agency concerning child support payable to the mother, Tipton. The Registrar had departed from the assessment under the *Child Support (Registration and Collection) Act 1988* (Cth) on the basis of the father's financial resources, specifically his income from a business.

The primary legal issue before the court was whether the Registrar had erred in her decision to depart from the assessment. This required the court to consider whether the Registrar had correctly applied the relevant provisions of the *Child Support (Registration and Collection) Act 1988* (Cth) in assessing the father's income and financial resources, and whether the departure was justified on the facts. The court also had to determine if the Registrar's decision was otherwise affected by error.

The court found that the Registrar had made an error in her assessment of the father's income and financial resources, particularly in relation to the valuation of his business. The court noted that the Registrar had failed to adequately consider all relevant financial information and had not properly applied the principles for assessing business income under the Act. Consequently, the court set aside the Registrar's departure determination and substituted its own decision. The court ordered that the child support assessment remain as originally assessed, and that the father was not liable for any additional child support as a result of the departure application.

Orders