Sand and Haver (Child support) - [2022] AATA 316

Sand and Haver (Child support) [2022] AATA 316 (21 January 2022)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2021/BC022061
APPLICANT:  Mr Sand
OTHER PARTIES:  Child Support Registrar
Ms Haver

TRIBUNAL:Member R Anderson
DECISION DATE: 21 January 2022
DECISION:

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

The adjusted taxable income of Mr Sand is varied to $60,000 in respect of the period 8 January 2021 to 30 June 2021;
The adjusted taxable income of Mr Sand is varied to $65,000 in respect of the period 1 July 2021 to 31 December 2023; and
The annual rate of child support payable by Mr Sand is to reduce by $756 in respect of the period 1 February 2021 to 17 December 2021.

CATCHWORDS

CHILD SUPPORT – departure determination – cost of maintaining the children are significantly affected – 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 Sand and Ms Haver are the separated parents of [Child 1]. According to the records of Services Australia – Child Support (the Agency), the child support assessment was registered on 10 January 2018. The Agency has been responsible for the collection of child support from Mr Sand since that time.
Several change of assessment (departure) applications have been lodged in respect of this case since registration. The most recent, which is the subject of this review, was lodged by Ms Haver on 12 January 2021. At that time, the administrative assessment was based on the most recently lodged tax returns of the parents, as the previous departure decision made on 9 January 2020 whereby the annual rate of child support payable by Mr Sand was varied to the minimum annual rate, ceased on 31 December 2019. Following a change in the registered care attributed to the parents in respect of [Child 1], the annual rate of child support payable by Mr Sand reduced to nil. This was on the basis of him being attributed with 21% care of [Child 1] from 8 January 2021 and the 2019/20 adjusted taxable income (ATI) of Mr Sand and Ms Haver being $16,291 and $32,861 respectively.
Ms Haver’s departure application of 12 January 2021 was lodged on the basis that the administrative assessment produced an unfair outcome due to the income, property and financial resources available to Mr Sand and his earning capacity (Reason 8A and 8B). Mr Sand has raised the issue of the administrative assessment being unfair because of the high costs incurred in enabling him to spend time with [Child 1] (Reason 1).
On 18 March 2021, a delegate of…

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 Sand and Haver (Child support)

Details

AGLC: Sand and Haver (Child support) [2022] AATA 316
Case: [2022] AATA 316
Decision Date: 21 January 2022

CaseChat Overview and Summary

The matter of *Sand and Haver* concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth). The applicant sought to depart from the assessed child support amount, arguing that the cost of maintaining the children was significantly affected by the liable parent's income, property, and financial resources. The decision was made by R Anderson M.

The primary legal issue before the court was whether the circumstances of the case met the threshold for a departure determination, specifically whether the liable parent's financial position constituted a ground for departure under the Act. The court was required to assess if the standard assessment of child support did not make proper or adequate provision for the child's maintenance due to the liable parent's income, property, and financial resources.

In reaching its decision, the court considered the evidence presented regarding the liable parent's financial circumstances. It was found that a ground for departure was established, meaning the standard assessment did not adequately account for the child's needs in light of the liable parent's financial capacity. Consequently, the court determined that a departure from the assessed amount was warranted.

The court set aside the original decision to depart and substituted its own decision. The specific orders made regarding the substituted departure determination were not detailed in the provided text.

Orders