Lark and Lam (Child support) - [2018] AATA 4424

Lark and Lam (Child support) [2018] AATA 4424 (23 August 2018)

DIVISION: Social Services & Child Support Division

REVIEW NUMBER: 2017/SC013082

APPLICANT: Mr Lark

OTHER PARTIES: Child Support Registrar

Ms Lam

TRIBUNAL: Member J Cuthbert

DECISION DATE: 23 August 2018

DECISION:

The tribunal sets aside the decision under review and substitutes a decision to depart from the child support assessment by:

varying Mr Lark’s adjusted taxable income to $140,000 from 2 March 2017 to 31 December 2020; and
increasing the annual rate of child support payable by Mr Lark by $10,750 from 2 March to 31 December 2017 and by $12,000 from 1 January 2018 to 31 January 2019.

CATCHWORDS
CHILD SUPPORT – Departure determination – Income, property and financial resources of a parent from a company and trust – High costs of child care – 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 for a change to a child support assessment made by Ms Lam on 31 March 2017.
Ms Lam and Mr Lark are the parents of [Child 1] (born 2014). There has been a child support assessment in place, made by the Department of Human Services – Child Support (the Department) for [Child 1], since 2 March 2017. The child support assessment is based on Ms Lam having a care percentage of 100% for [Child 1] and Mr Lark having a care percentage of 0%.
For the child support period 2 March 2017 to 1 June 2018 Mr Lark was assessed to pay child support of $7,019 a year based on a provisional income of $75,000 for Mr Lark and Ms Lam’s 2015/16 adjusted taxable income of $106,647.
On 31 March 2017 Ms Lam applied to the Department for a departure from the assessment on the grounds that Mr Lark’s income, property, financial resources and earning capacity were not properly reflected in the assessment and also on the ground that she had high costs of child care for [Child 1].
On 10 July 2017 a decision was made to depart from the child support assessment by:
· varying Mr Lark’s adjusted taxable income to $109,200 from 2 March 2017 to 31 December 2018; and
· increasing the annual rate of child support payable by Mr Lark by $9,063 from 2 March to 30 June 2017 and $11,168 from 1 July 2017 to 31 December 2018.
Mr Lark’s objection to that decision was partly allowed on 10 November 2017. The objections officer decided to set aside the earlier decision and to depart from the assessment by:
· varying Mr Lark’s adjusted taxable income to $140,000 from 2 March 2017 to 31 December 2019; and
· increasing the annual rate of child…

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 Lark and Lam (Child support)

Details

AGLC: Lark and Lam (Child support) [2018] AATA 4424
Case: [2018] AATA 4424
Decision Date: 23 August 2018

CaseChat Overview and Summary

The case of Lark and Lam concerned a child support departure determination. The applicant, Lark, sought to have the child support assessment varied on the grounds of the respondent, Lam's, income, property, and financial resources derived from a company and a trust. The primary issue before the court was whether the existing child support assessment was unjust and inequitable having regard to these financial circumstances and the high costs of child care.

The court was required to determine whether the respondent's financial position, including assets and income held through corporate and trust structures, warranted a departure from the standard child support assessment. Specifically, the court had to consider if the respondent's ability to meet his child support obligations was being obscured or reduced by these arrangements, and if the costs associated with the child's care were such that the current assessment was unfair.

In its reasoning, the court applied the principles of the *Child Support (Registration and Collection) Act 1988* concerning departure from assessments. The court examined the evidence presented regarding the respondent's income, property, and financial resources, including distributions from the company and trust. The court considered the high costs of child care as a relevant factor in assessing the fairness of the assessment. The court found that the existing assessment was indeed unjust and inequitable given the respondent's financial capacity and the child's care expenses.

The court set aside the original child support determination and substituted it with a new assessment that reflected the respondent's actual financial capacity and the significant costs of child care.

Orders