Pickwick and Nickins (Child support) - [2022] AATA 5012

Pickwick and Nickins (Child support) [2022] AATA 5012 (11 November 2022)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2022/SC023413
APPLICANT:  Mr Pickwick
OTHER PARTIES:  Child Support Registrar
Ms Nickins

TRIBUNAL:Member D Tucker, Presiding
Senior Member K Dordevic

DECISION DATE: 11 November 2022
DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that for the period from 25 June 2020 until a terminating event occurs in relation to the child, Mr Pickwick’s annual child support liability is varied to $29,878.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the liable parent – special needs – 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

The Child Support (Assessment) Act 1989 (the Act) provides for an administrative assessment of child support, using a formula which includes variables such as the parents’ adjusted taxable incomes and their percentages of care of the children. The Act also provides for a departure from this administrative assessment in certain circumstances.
Ms Nickins (the mother) and Mr Pickwick (the father) are the parents of one child, [Child 1] (the child), born [in] February 2008. This case was registered with Services Australia – Child Support (the CSA) on 14 October 2017 and registered for collection from that date. The care record reflects that the mother has 100% care of the child.
On 23 September 2021 the mother lodged a departure application. Her position was that the administrative assessment did not adequately accommodate the cost of meeting the child’s special needs (Reason 2) or the extra costs of educating the child in the way both parents intended (Reason 3).
The same day, the CSA rejected the departure application, deciding that it was not just and equitable to change the assessment.
On 13 December 2021 the mother lodged an objection to this decision, which the CSA disallowed on 10 February 2022.
On 3 March 2022 the mother sought further review with the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal).
A directions hearing was held on 26 July 2022. The mother reiterated that a departure from the administrative assessment was justified based on Reason 2 and Reason 3. The father contended that the mother had enrolled the child in a private boarding school without his agreement. He questioned whether the extent of the child’s psychotherapy was warranted and stated that he simply could not afford any increase in his child support payments.
Directions were issued on the next day requiring compliance by 22 August 2022.
The hearing took place on 14 September 2022. Both the father and mother appeared via telephone and gave…

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 Pickwick and Nickins (Child support)

Details

AGLC: Pickwick and Nickins (Child support) [2022] AATA 5012
Case: [2022] AATA 5012
Decision Date: 11 November 2022

CaseChat Overview and Summary

This matter concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth) brought by the liable parent, Pickwick, against the payee parent, Nickins. The dispute centred on whether the existing child support assessment should be departed from due to Pickwick's asserted financial circumstances and the special needs of the child. Member D Tucker presided over the proceedings.

The primary legal issue before the court was whether the circumstances of the case warranted a departure from the administrative assessment of child support. Specifically, the court had to determine if Pickwick had established a ground for departure under the Act, considering his income, property, and financial resources, as well as the special needs of the child. The court was then required to decide whether, having established a ground, it should make a departure determination.

The court found that a ground for departure was established, primarily due to the special needs of the child. The reasoning focused on the specific requirements of the child that were not adequately met by the standard assessment. Having found a ground, the court then considered the appropriate departure. The decision to depart was made, and the court set aside the original departure determination and substituted its own.

Orders