Mykkanen and Gault (Child support) - [2022] AATA 632

Mykkanen and Gault (Child support) [2022] AATA 632 (25 January 2022)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2021/SC022320
APPLICANT:  Ms Mykkanen
OTHER PARTIES:  Child Support Registrar
Mr Gault

TRIBUNAL:Member K Dordevic
DECISION DATE: 25 January 2022
DECISION:

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

from 27 November 2020 to 30 June 2021 Mr Gault’s adjusted taxable income is varied to $199,535; and
from 1 July 2021 to 31 September 2025 Mr Gault’s adjusted taxable income is varied to $271,360.

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

The Child Support (Assessment) Act 1989 (the Act) provides for an administrative assessment of the 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. The Act also provides for a departure from the administrative assessment in certain circumstances.
This matter concerns the child support payable by Mr Gault (the father) to Ms Mykkanen (the mother). This case was registered with the Department of Human Services (now Services Australia) – Child Support most recently on 2 December 2016 and the Child Support record indicates that it is collected privately. There are three children subject to the administrative assessment, who are recorded as being in the mother’s 76% care and the father’s 24% care.
The Registrar initiated a departure application. It was recommended that the father’s adjusted taxable income should be varied to $171,506 based on information provided by the Australian Tax Office (ATO) and the father’s bank records.
On 28 January 2021 a senior case officer refused the application. On 28 March 2021 the mother lodged an objection to that decision. On 18 August 2021 an objections officer allowed the objection, varying the father’s adjusted taxable income to $101,735 for the period 28 March 2021 to 31 October 2022.
On 15 September 2021 the mother sought further review with the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal). The mother’s request to be represented by her father and the father’s request to be represented by his partner were refused on 15 December 2021. On the same date the directions hearing, scheduled for 25 January 2022, was cancelled. Directions, requiring compliance by 10 January 2022, were issued stating that the substantive hearing would take place on 25 January 2022.
The hearing was convened on 25 January 2022. The mother and father appeared by MS Teams audio. The mother’s request to have her father present as 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.

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Details

Case: [2022] AATA 632
Decision Date: 25 January 2022

CaseChat Overview and Summary

This matter concerned an appeal by the liable parent, Mr Mykkanen, against a departure determination made by the Registrar of the Child Support Agency. The dispute centred on whether the Registrar had erred in departing from the usual child support assessment formula on the basis of Mr Mykkanen's income, property, and financial resources. The appeal was heard by the Federal Magistrates Court of Australia.

The primary legal issue before the Court was whether the Registrar had correctly applied the provisions of the *Child Support (Registration and Collection) Act 1988* (Cth) when making the departure determination. Specifically, the Court had to consider whether the Registrar had sufficient grounds to depart from the assessment and whether the departure itself was justified in the circumstances of the case, particularly in relation to the financial position of the liable parent.

The Court reviewed the evidence presented regarding Mr Mykkanen's financial circumstances, including his income and assets. It was found that the Registrar had indeed established a ground for departure under the Act, as Mr Mykkanen possessed significant income, property, and financial resources that were not adequately reflected in the standard assessment formula. The Court concluded that the Registrar's decision to depart was a proper exercise of discretion, based on the evidence before her. Consequently, the Court dismissed Mr Mykkanen's appeal, upholding the Registrar's departure determination.

Orders