Linnell and Lomas (Child support) - [2023] AATA 1658

Linnell and Lomas (Child support) [2023] AATA 1658 (18 April 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2022/PC024303
APPLICANT:  Mr Linnell
OTHER PARTIES:  Child Support Registrar
Ms Lomas

TRIBUNAL:Senior Member R Ellis
DECISION DATE: 18 April 2023
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that for the period from 1 July 2022 to 31 October 2024 the adjusted taxable income of [Mr Linnell] is varied to $52,000.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the liable parent – a 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 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

This review is about whether or not there should be a departure from the administrative assessment of child support.
Mr Linnell and Ms Lomas are the parents of [Child 1] (born April 2008) and [Child 2] (born September 2010). There has been a child support assessment in place since 28 July 2020 and [Mr Linnell] is currently the liable parent under the assessment.
The following administrative assessments of child support are under consideration:
·     for the period from 10 December 2021 to 19 December 2021 [Mr Linnell] was assessed to pay an annual rate of $19,046 based on an estimated adjusted taxable income of $156,288 for [Mr Linnell] and an estimated adjusted taxable income $45,885 for Ms Lomas;
·     for the period from 20 December 2021 to 11 February 2022 Ms Lomas was assessed to pay an annual rate of $1,712 based on an estimated adjusted taxable income of $0 for [Mr Linnell] and an estimated adjusted taxable income of $45,885 for Ms Lomas;
·     for 12 February 2022 Ms Lomas was assessed to pay an annual rate of $754 based on estimated adjusted taxable income of $0 for [Mr Linnell] and an estimated adjusted taxable income of $34,935 for Ms Lomas;
·     for the period from 13 February 2022 to 27 March 2022 Ms Lomas was assessed to pay an annual rate of $2,450 based on an estimated adjusted taxable income of $0 for [Mr Linnell] and an estimated adjusted taxable income of $54,332 for Ms Lomas; and
·     for the period from 28 March 2022 to 24 May 2022 Ms Lomas was assessed to pay an annual rate of $736 based on an estimated adjusted taxable income of $35,975 for [Mr Linnell] and an estimated adjusted taxable income of $54,332 for Ms Lomas.
On 21 December 2021 Ms Lomas applied to the Child Support Agency for a change of assessment on the basis of a parent’s income, property, financial resources and earning capacity (the grounds commonly referred to as Reasons 8A and 8B).
On 15…

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 Linnell and Lomas (Child support)

Details

AGLC: Linnell and Lomas (Child support) [2023] AATA 1658
Case: [2023] AATA 1658
Decision Date: 18 April 2023

CaseChat Overview and Summary

This matter concerned an application by the liable parent, Mr. Linnell, for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth). The dispute centred on whether the child support assessment should be varied due to the income, property, and financial resources of Mr. Linnell. The Senior Member of the court was required to determine if a ground for departure was established and, if so, whether to depart from the assessment.

The primary legal issue before the court was whether the existing child support assessment was unfair to the liable parent, Mr. Linnell, given his income, property, and financial resources. This required an examination of whether Mr. Linnell's financial circumstances met the criteria for a departure from the standard assessment provisions. The court had to consider the specific provisions of the *Child Support (Registration and Collection) Act 1988* that permit such departures.

The Senior Member found that a ground for departure was established. In reaching this conclusion, the court applied the principles governing departure determinations, which involve assessing whether the assessment would be unfair in the circumstances of the case. The court considered the evidence presented regarding Mr. Linnell's financial position and determined that it warranted a departure from the assessed amount. Consequently, the Senior Member set aside the original decision and substituted it with a new determination.

Orders