Nicken and Nicken (Child support) - [2022] AATA 4101

Nicken and Nicken (Child support) [2022] AATA 4101 (23 August 2022)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2021/MC023031
APPLICANT:  Ms Nicken
OTHER PARTIES:  Child Support Registrar
Mr Nicken

TRIBUNAL:Member R Anderson
DECISION DATE: 23 August 2022
DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that in respect of the period 1 May 2020 to 31 October 2024, the annual rate of child support payable by Mr Nicken to Ms Nicken in respect of [Child 1] and [Child 2] is varied to nil and the annual rate of child support payable by Ms Nicken to Mr Nicken in respect of [Child 1] and [Child 2] for the period 1 May 2020 to 31 October 2024 is also reduced to nil.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of both parents – 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

Mr Nicken and Ms Nicken are the separated parents of [Child 1] and [Child 2]. According to the records of Services Australia – Child Support (the Agency), the child support assessment was registered on 16 October 2018. Mr Nicken was the parent liable to pay child support to Ms Nicken in respect of the children. The Agency was responsible for collection of child support from Mr Nicken.
On 25 December 2020, a child support assessment whereby Ms Nicken became the parent liable to pay child support to Mr Nicken in respect of the children was registered with the Agency. The Agency accepted responsibility for collection of child support from Ms Nicken commencing 28 January 2021.
The child support liability is generally calculated in accordance with the administrative assessment, as provided in the Child Support (Assessment) Act 1989 (the Act). The calculation is based on the income recorded by each parent in their most recently completed tax returns, as lodged with the Australian Taxation Office, or the most recent estimate accepted by the Agency. It is open to either parent to lodge an application for a departure from the administrative assessment under Part 6A of the Act if they consider the administrative assessment results in an unfair amount of child support payable by one parent.
The administrative assessment at 25 December 2020 was based on the income recorded for Mr Nicken and Ms Nicken on their most recently lodged tax returns, being 2019/20, of $6,353 and $121,536 respectively. This resulted in child support payable by Ms Nicken to Mr Nicken in respect of the children at the annual rate of $6,344.
On 23 August 2021, Ms Nicken lodged a departure application (change of assessment) on the basis that…

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 4101
Decision Date: 23 August 2022

CaseChat Overview and Summary

The matter of *Nicken and Nicken* concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth). The applicant sought to depart from the assessment of child support payable by the respondent. The court was required to consider the income, property, and financial resources of both parents in determining whether a ground for departure was established.

The primary legal issue before the court was whether the existing child support assessment was unjust or inequitable having regard to the specific circumstances of the parties. This involved an examination of whether the respondent possessed income, property, or financial resources that were not taken into account in the assessment, or if there were other circumstances that rendered the assessment unfair. The court had to determine if any of the prescribed grounds for departure under the Act were met.

The court found that a ground for departure was established. In reaching this conclusion, the court applied the principles outlined in the *Child Support (Registration and Collection) Act 1988*, which permit a departure from a child support assessment where it would be unjust or inequitable having regard to the financial circumstances of either parent. The court's reasoning focused on the disparity in the financial resources available to each parent. The decision to depart from the assessment was made on the basis of the evidence presented regarding the respondent's financial position. The court set aside the original decision and substituted its own determination.

Orders