Leckie and Burgess (Child support) - [2017] AATA 2906

Leckie and Burgess (Child support) [2017] AATA 2906 (27 November 2017)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2017/PC011569
APPLICANT:  Ms Leckie
OTHER PARTIES:  Child Support Registrar
Mr Burgess

REVIEW NUMBER:  2017/PC011712
APPLICANT:  Mr Burgess
OTHER PARTIES:  Child Support Registrar
Ms Leckie

TRIBUNAL:Member S Hoffman
DECISION DATE: 27 November 2017
DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that there is no departure from the administrative assessment of child support.

CATCHWORDS

Child Support – Departure determination – Income and financial resources of parents – Business income – Education of child not in a manner expected by both parents – Refusal to make a departure determination as a ground for departure not established – 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

BACKGROUND

This review is about the child support assessment in respect of child S, who turned 16 years old in September 2017. The case started on 14 June 2005 when she was three years old. For the period relevant to this review, child S was recorded as being in the mother’s 73% care, and the father’s 27% care.
On 21 September 2016 the mother lodged an application for a change of assessment with the Department of Human Services – Child Support (the Department). The administrative assessment that applied on that date was that the father’s annual rate of child support was $1,918, based on a provisional income for him of $60,954 and the mother’s 2014/15 taxable income of $73,127.[1]
[1] At the time the mother lodged her change of assessment application, the father’s child support liability was $87 a year, based on the mother providing 60% care and the father providing 40% care. A change of care was notified around that time, changing the percentages to 73% and 27% respectively. This change applied from 14 September 2016 and the father’s child support liability increased from $87 to $1,918 a year.
On 21 February 2017 a senior case officer from the Department decided that from 21 September 2016 until a terminating event, the mother’s adjusted taxable income was varied to $82,236 and the father’s to $97,492; and that the annual rate of child support was increased by $4,473 for calendar year 2017 and by $3,928 for calendar year 2018 (original decision). The father’s liability increased to $5,209 a year from 21 September 2016.
On 1 March 2017 the father lodged an objection to the original decision. On 27 April 2017 an objections officer from the Department decided to vary the mother’s adjusted taxable income to $82,236 (unchanged from the original decision) and the father’s adjusted taxable income to $101,204 from 1 July 2016 until a terminating event (the objection decision). As a result…

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 Leckie and Burgess (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: [2017] AATA 2906
Decision Date: 27 November 2017

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application by the father, Mr Leckie, for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth). The application concerned the child support assessment for his child with the mother, Ms Burgess. The father sought to have the assessment departed from on the basis that the child's education was not being provided in a manner that would have been expected by both parents, and that the mother's income and financial resources were not being properly considered.

The Tribunal was required to determine whether the grounds for a departure determination, as set out in section 117 of the *Child Support (Registration and Collection) Act 1988*, were established. Specifically, the Tribunal had to consider whether the child's educational needs were not being met in a way that both parents would have expected, and whether the mother's income and financial resources were such that the current assessment was not fair.

The Tribunal found that the father had not established that the child's education was not being provided in a manner that would have been expected by both parents. It also found that the grounds for departure relating to the mother's income and financial resources were not made out. Consequently, the Tribunal concluded that the refusal to make a departure determination by the original decision-maker was not justified. The Tribunal set aside the original decision and substituted its own decision, refusing to make a departure determination.

Orders