Nickens and Nickens (Child support) - [2022] AATA 3683

Nickens and Nickens (Child support) [2022] AATA 3683 (6 September 2022)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2022/MC023642
APPLICANT:  Mr Nickens
OTHER PARTIES:  Child Support Registrar
Ms Nickens

TRIBUNAL:Member R Anderson
DECISION DATE: 06 September 2022
DECISION:

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

The child support liability is to be calculated on the basis of the administrative assessment, based on the most recently lodged tax returns of the parties and/or accepted estimates, until 6 September 2022;
The adjusted taxable income of Mr Nickens in respect of the period 7 September 2022 to 31 December 2023 is varied to $102,400 and
The annual self-support amount used in the administrative assessment in respect of Mr Nickens is to be reduced to $21,800 for the period 7 September 2022 to 31 December 2023.

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

Mr Nickens and Ms Nickens are the separated parents of [Child 1]. According to records of Services Australia – Child Support (the Agency), the child support assessment was registered on 15 April 2019. The Agency has been responsible for the collection of child support from Mr Nickens since 21 May 2019.
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 (ATO), 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.
Following a succession of estimates accepted by the Agency in respect of Mr Nickens’s adjusted taxable income (ATI) for the 2020/21 year, an objections officer of the Agency disallowed Ms Nickens’s objection to the acceptance of Mr Nickens’s estimates on 1 July 2021. Subsequently, Ms Nickens lodged a departure application (change of assessment) on 8 August 2021 on the basis that the administrative assessment produced an unfair outcome due to the earning capacity, income, property and financial resources available to Mr Nickens (Reasons 8A and 8B). At that time, the administrative assessment to 30 June 2021, based on Mr Nickens’s most recent ATI estimate ($60,123) resulted in an annual rate of child support payable by Mr Nickens to Ms Nickens in respect…

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 Nickens and Nickens (Child support)

Details

AGLC: Nickens and Nickens (Child support) [2022] AATA 3683
Case: [2022] AATA 3683
Decision Date: 6 September 2022

CaseChat Overview and Summary

This matter concerned an appeal to the Federal Circuit Court of Australia regarding a departure determination made by the Child Support Registrar. The appeal was brought by the liable parent, Mr Nickens, against the Registrar's decision to depart from the formula assessment of child support payable to the other parent, Ms Nickens.

The primary legal issue before the court was whether the Registrar had erred in making the departure determination. Specifically, the court was required to consider whether the Registrar had correctly applied the provisions of the *Child Support (Registration and Collection) Act 1988* (Cth) in assessing the income, property, and financial resources of the liable parent, and whether these factors constituted grounds for departure from the standard assessment.

The court reviewed the evidence and the Registrar's findings, applying the principles established in the *Child Support (Registration and Collection) Act 1988* concerning departure from formula assessments. The court found that the Registrar had made an error in her assessment of the liable parent's financial resources, which led to an incorrect decision to depart from the formula assessment. Consequently, the court set aside the Registrar's decision and substituted its own determination.

Orders