Nichols and Nichols (Child support) - [2019] AATA 4350

Nichols and Nichols (Child support) [2019] AATA 4350 (20 August 2019)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2019/BC016444
APPLICANT:  Mrs Nichols
OTHER PARTIES:  Child Support Registrar
Mr Nichols

TRIBUNAL:Senior Member A Freeman
DECISION DATE: 20 August 2019
DECISION:

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

for the period from 10 August 2018 to 31 December 2020, Mr Nichols’ adjusted taxable income is varied to $120,000 per annum;
for the period from 10 August 2018 to 31 December 2020, Mrs Nichols’ adjusted taxable income is varied to $60,000 per annum.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of both parents - benefits derived from business - income from family trust - decision under review set aside and substituted

REASONS FOR DECISION

BACKGROUND

Mr and Mrs Nichols are the parents of two children. Mrs Nichols’ care percentage in relation to both children is currently recorded for the purposes of assessing child support as 62% and Mr Nichols’ care percentage is recorded as 38%.
Mrs Nichols lodged an application with the Department of Human Services (the Department) on 10 August 2018 seeking a departure from the administrative assessment. Mr Nichols also lodged a cross-application. At the time of the applications, Mr Nichols was liable to pay an annual rate of child support of $4,876 for both children. This was calculated by reference to the application of the administrative assessment which was based upon an adjusted taxable income (ATI) of $87,613 for Mr Nichols and $92,307 for Mrs Nichols. On 1 October 2018, both parents’ ATI’s changed as follows:
· Mr Nichols’ ATI decreased to $54,870;
· Mrs Nichols’ ATI decreased to $45,585.
On 22 January 2019, the Department made a decision to depart from the administrative assessment in place and varied Mr Nichols’ ATI to $114,436 and Mrs Nichols’ ATI to $54,609 for a period from 22 January 2018 to 21 January 2021. This resulted in an annual rate payable by Mr Nichols to Mrs Nichols of $11,700 for both children.
Mr Nichols objected to that decision and on 30 April 2019 an objections officer allowed the objection, set aside the previous decision and made a new decision as follows:
· For the period from 22 January 2019 to 21 January 2022, Mr Nichols’ ATI is $104,000 per annum;
· For the period from 22 January 2019 to 21 January 2022, Mrs Nichols’ ATI is $70,000 per annum.
This had the effect of reducing the annual rate payable by Mr Nichols from $11,700 to $10,804 for both children.
Mrs Nichols has sought a further review of this decision.
Mrs Nichols submits that Mr Nichols’ ATI should be higher and hers should be lower such that both their incomes and financial resources make the assessment of child support unfair.
The Tribunal hearing was conducted on 20 August 2019. Mrs Nichols appeared at the hearing in person and Mr Nichols appeared by conference telephone. In reaching its decision, the Tribunal has considered…

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 Nichols and Nichols (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: [2019] AATA 4350
Decision Date: 20 August 2019

CaseChat Overview and Summary

The case of *Nichols and Nichols (Child Support)* concerned an application to review a child support departure determination made by the Registrar. The applicant, Mr Nicholas, sought to set aside the Registrar's decision, which had assessed his child support liability based on his income and financial resources, including benefits derived from a family trust and his business. The respondent, Ms Nichols, sought to uphold the Registrar's determination.

The primary legal issue before the court was whether the Registrar had erred in her assessment of Mr Nicholas's child support liability. Specifically, the court was required to determine if the Registrar had correctly considered all relevant factors, including Mr Nicholas's income, property, and financial resources, particularly those derived from his business and a family trust, when making the departure determination.

Senior Magistrate Freeman found that the Registrar had failed to adequately consider the full extent of Mr Nicholas's income and financial resources. The court reasoned that the benefits Mr Nicholas derived from his business and the family trust constituted assessable income for child support purposes, even if not formally distributed. The court applied the principles of the *Child Support (Assessment) Act 1989* (Cth), which require consideration of all relevant financial circumstances of both parents when making a departure determination.

The court set aside the Registrar's departure determination and substituted its own. The substituted determination adjusted Mr Nicholas's child support assessment to reflect the income and financial resources that had not been fully accounted for in the original decision.

Orders