Merriman and Allsebrook (Child support) - [2022] AATA 2376

Merriman and Allsebrook (Child support) [2022] AATA 2376 (10 May 2022)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2021/SC021671
APPLICANT:  Mr Merriman
OTHER PARTIES:  Child Support Registrar
Ms Allsebrook

TRIBUNAL:Senior Member R Ellis
DECISION DATE: 10 May 2022
DECISION:

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

for the period from 5 June 2020 to 31 July 2021 the adjusted taxable income of Mr Merriman is varied to $127,490;

for the period from 10 August 2020 to 31 October 2021 the cost of child amount in the formula is to be increased by $7,028 per annum.

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 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 whether or not there should be a departure from the administrative assessment of child support.
Mr Merriman and Ms Allsebrook are the parents of [Child 1] (born April 2018). There has been a child support assessment in place since 4 June 2018 and Mr Merriman is the liable parent under the assessment.
The following administrative assessments of child support are under consideration:
· for the period from 1 December 2019 to 31 July 2020 Mr Merriman was assessed to pay an annual rate of $19,886 based on an adjusted taxable income of $164,250 for Mr Merriman as set under a previous change of assessment decision and a 2018-19 adjusted taxable income of $79,490 for Ms Allsebrook with the annual rate increased by $4,754 to take account of [Child 1]’s child care costs; and
· for the period from 1 August 2020 to 31 October 2020 Mr Merriman was assessed to pay an annual rate of $20,052 based on an adjusted taxable income of $164,250 for Mr Merriman as set under a previous change of assessment decision and a 2019-20 adjusted taxable income of $81,621 for Ms Allsebrook with the annual rate increased by $4,754 to take account of [Child 1]’s child care costs.
On 14 May 2020 Mr Merriman applied to the Child Support Agency for a change to the assessment on the basis of a parent’s earning capacity (the ground commonly referred to as Reason 8B) and later added the grounds of a parent’s income, property and financial resources (Reason 8A) and his legal duty to support another person (Reason 9).
On 29 June 2020 Ms Allsebrook lodged a cross-application on the basis of the high cost of child care (Reason 6) and a parent’s income, property, financial resources and earning capacity (Reasons 8A and 8B).
On 25 August 2020 the Child Support Agency made 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.

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Details

Case: [2022] AATA 2376
Decision Date: 10 May 2022

CaseChat Overview and Summary

The case of Merriman and Allsebrook concerned a child support departure determination. The applicant, Merriman, sought to depart from the child support assessment made in relation to the respondent, Allsebrook. The dispute centred on the income, property, and financial resources of the liable parent, Allsebrook. The matter came before the court for review of a previous decision.

The primary legal issue before the court was whether a ground for departure from the child support assessment had been established, and if so, whether the court should exercise its discretion to depart from the assessment. This involved an examination of Allsebrook's financial circumstances and whether they were such that the assessment did not make proper or adequate provision for the child's needs.

The court considered the evidence presented regarding Allsebrook's income, property, and financial resources. It applied the principles of the *Child Support (Registration and Collection) Act 1988* (Cth) concerning departure determinations, specifically focusing on whether the existing assessment was unjust or inequitable given Allsebrook's financial position. The court found that a ground for departure was established.

Having found a ground for departure, the court then considered whether to substitute its own decision for the previous one. The court set aside the previous decision and substituted its own determination, indicating a departure from the original child support assessment.

Orders