Ottley and Ottley (Child support) - [2021] AATA 3357

Ottley and Ottley (Child support) [2021] AATA 3357 (28 July 2021)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2021/SC020923
APPLICANT:  Mr Ottley
OTHER PARTIES:  Child Support Registrar
Ms Ottley

TRIBUNAL:Member K Dordevic
DECISION DATE: 28 July 2021
DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the liable parent – whether the liable parent’s assets render the assessment unfair - decision under review affirmed

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 application concerns the child support liability of Mr Ottley (the father) payable to Ms Ottley (the mother) in respect of their youngest child. This case was registered with Services Australia – Child Support on 9 December 2019 and has been collectable since that date. The child is recorded as being in the mother’s 86% and the father’s 14% care from the date the assessment was registered.
After an application was lodged by the father on 15 June 2020, on 1 October 2020 a senior case officer refused the application on the basis that no ground was established. The father lodged a timely objection and on 29 January 2021 his objection was disallowed.
On 2 March 2021 the father sought further review with the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal). A directions hearing was held on 16 June 2021. The parents both attended the hearing and the father was represented by [Mr A], [Law firm]. Directions were issued, requiring compliance by 9 July 2021. At the father’s request, both parties were given an extension to 14 July 2021 in which to comply.
On 20 July 2021 the mother requested that the matter be rescheduled to allow her to meet with her accountant face to face, noting that she was unable to given the current COVID-19 lockdown measures in place in NSW. Her request was refused after taking into account the tribunal's statutory objectives and that the likelihood that the current COVID-19 lockdown measures would not be lifted in the immediate future.
The hearing took place on 28 July 2021. The father and mother appeared by MS Teams audio. The father was represented by [Mr A]. The Child Support Registrar was not represented at the hearing. A brief adjournment was permitted during the hearing to allow [Mr A] to receive instructions. The tribunal also considered the documentation provided by Child…

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: [2021] AATA 3357
Decision Date: 28 July 2021

CaseChat Overview and Summary

The matter of *Ottley and Ottley (Child Support)* concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth). The applicant sought to have the assessed child support payable by the liable parent varied, arguing that the assessment was unfair due to the liable parent's income, property, and financial resources. The decision reviewed was made by the Child Support Registrar.

The primary legal issue before the court was whether the liable parent's assets rendered the child support assessment unfair, thereby justifying a departure from the standard assessment. This required the court to consider the provisions of the *Child Support (Registration and Collection) Act 1988* relating to departure determinations and the circumstances in which an assessment could be considered unfair.

The court affirmed the decision under review. While the specific reasoning is not detailed in the provided text, the outcome indicates that the court found no grounds to depart from the existing child support assessment, implying that the liable parent's assets were not considered to make the assessment unfair in the circumstances.

Orders