Potter and Jarrett (Child support) - [2019] AATA 96

Potter and Jarrett (Child support) [2019] AATA 96 (3 January 2019)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2018/MC014435
APPLICANT:  Mr Potter
OTHER PARTIES:  Child Support Registrar
Miss Jarrett

TRIBUNAL:Member R Anderson
DECISION DATE: 03 January 2019
DECISION:

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

The adjusted taxable income of Mr Potter is varied to $96,000 per annum in respect of the period 1 July 2017 to 31 December 2019.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the liable parent - business income - 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 removed 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 Potter and Miss Jarrett are the parents of [Child 1]. According to records of the Department of Human Services – Child Support (the Department), the child support assessment was registered on 6 January 2005, within a few weeks of [Child 1]’s birth. The Department has been responsible for the collection of child support from Mr Potter since commencement of the assessment, Miss Jarrett being the sole carer of [Child 1].
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 Department. As the income recorded on the 2015/2016 and 2016/2017 tax returns of Mr Potter was less than the self-support amount used in the assessment for those respective years, he was assessed to pay child support at the minimum annual rate of $414 per annum and $420 per annum respectively.
It is open to either parent to lodge an application for a departure from the administrative assessment under Part 6A of the Child Support (Assessment) Act 1989 (the Act) if they consider the administrative assessment results in an unfair amount of child support payable by one parent. Miss Jarrett lodged such an application on 28 August 2017 on the basis that the administrative assessment produced an unfair outcome due to the income, property and financial resources available to Mr Potter (Reason 8).
On 10 October 2017, a delegate of the child support registrar found that a ground was established and decided to vary the adjusted taxable income of Mr Potter to $80,000 per annum in respect of the period 28 August 2017 to 31 January 2020.
On 26 October 2017, Mr Potter lodged an objection to the decision of 10 October 2017. Subsequently, an objections officer decided to partly allow Mr Potter’s objection on 8 January 2018. However, the decision was not favourable…

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 Potter and Jarrett (Child support)

Details

AGLC: Potter and Jarrett (Child support) [2019] AATA 96
Case: [2019] AATA 96
Decision Date: 3 January 2019

CaseChat Overview and Summary

The matter of *Potter and Jarrett* 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, Mr Jarrett, varied on the basis of his income, property, and financial resources, specifically relating to his business income. The decision under review was set aside and substituted by the court.

The primary legal issue before the court was whether the liable parent's actual income, derived from his business, was significantly different from the income assessed by the Child Support Agency. This required the court to consider the nature of the business income and whether it should be attributed to the liable parent for the purposes of child support assessment, thereby justifying a departure from the standard assessment.

The court's reasoning focused on the evidence presented regarding the liable parent's business activities and the income generated. It applied the principles governing departure determinations, which allow for adjustments to child support assessments when the standard assessment would be unfair due to specific circumstances, such as a discrepancy between assessed income and actual financial capacity. The court considered the extent to which the business income was available to the liable parent and whether it reflected his true financial resources. The court ultimately set aside the previous decision and substituted its own determination.

Orders