Nihill and Nihill (Child support) - [2021] AATA 2289

Nihill and Nihill (Child support) [2021] AATA 2289 (2 June 2021)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER: 2020/AC020239
APPLICANT: Mr Nihill

OTHER PARTIES: Ms Nihill

Child Support Registrar

TRIBUNAL: Member S Cullimore

DECISION DATE: 2 June 2021

DECISION:

The decision under review is set aside and the Tribunal substitutes a new departure determination as follows:

For the period from 1 November 2018 to 31 October 2022 the adjusted taxable income of Mr Nihill is fixed at $40,000.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the liable parent – paying parent’s true financial resources difficult to ascertain - 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 following background matters are drawn from the files of Services Australia – Child Support (“the CSA”) and are not in dispute. The Tribunal finds each matter as a fact.
The case was registered on 27 June 2012 and has been Registrar Collect since then.
The parents have two children, twins, now aged 14.
On 5 September 2019 Ms Nihill applied for a change of assessment.[1]
[1] C50
On 5 February 2020 a delegate of the CSA made a departure determination fixing the adjusted taxable income (“ATI”) of Mr Nihill at $72,864 pa from 1 September 2019 to the end of the child support case, which will be November 2024.
This produced an annual rate of child support of $6,640 after 2 November 2019.[2]
[2] C379
On 2 June 2020 Mr Nihill objected to that departure determination.[3]
[3] He was given an extension of time to object: C515.
On 19 October 2020 an objections officer “part allowed” his objection and made a different departure determination, fixing the ATI of Mr Nihill at $85,908 for the period from 1 September 2019 to 31 August 2022.
The resulting annual rate of child support was initially $8,470.[4]
[4] C14

10. Care was 50/50 equal care until 28 January 2021.[5]

[5] C1014

11. Care is now 79% to Ms Nihill and 21% to Mr Nihill and his child support liability is currently $13,052 pa.[6]

[6] C1026

12. Care proceedings are currently before a Court.[7]

[7] See B108

13. On 13 November 2020 Mr Nihill applied for further review by this Tribunal of the objection decision.

DOCUMENTARY EVIDENCE AND HEARING

14.The Tribunal had before it the original bundle of documents provided by the CSA. These documents are referred to as C1 to C1,009.
15.Supplementary documents from the CSA were marked C1,010 onwards.

Directions were made by the Tribunal on 24 March 2021 concerning the production of further documents by the parents.
The hearing was on 19 May 2021.
The parents were given the opportunity to provide further written submissions.

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 Nihill and Nihill (Child support)

Details

AGLC: Nihill and Nihill (Child support) [2021] AATA 2289
Case: [2021] AATA 2289
Decision Date: 2 June 2021

CaseChat Overview and Summary

This matter concerned an appeal by the paying parent against a departure determination made by the Registrar of the Child Support Agency. The appeal was heard by Magistrate S Cullimore. The core of the dispute revolved around the paying parent's income, property, and financial resources, which were considered difficult to ascertain, leading to the Registrar's decision to depart from the usual child support assessment.

The primary legal issue before the court was whether the Registrar had erred in making the departure determination. This required the court to consider whether the paying parent's actual financial circumstances warranted a departure from the standard assessment, particularly given the perceived difficulty in accurately determining their true financial resources.

Magistrate Cullimore reasoned that the Registrar's decision was not supported by sufficient evidence. The court applied the principles governing departure determinations under the *Child Support (Registration and Collection) Act 1988*, emphasizing the need for clear and compelling evidence to justify such a departure. Finding that the evidence presented did not meet this threshold, the court concluded that the Registrar's determination was not justified. Consequently, the court set aside the Registrar's departure determination and substituted its own decision.

Orders