Savage and Kerr (Child support) - [2019] AATA 5017

Savage and Kerr (Child support) [2019] AATA 5017 (15 October 2019)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2019/MC016406
APPLICANT:  Mr Savage
OTHER PARTIES:  Child Support Registrar
Ms Kerr

TRIBUNAL:Member C Breheny
DECISION DATE: 15 October 2019
DECISION:

The decision under review is set aside and a decision substituted that Mr Savage’s adjusted taxable income is set at $70,000 per annum from 28 June 2018 to 30 June 2023.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the liable parent - benefits derived from business – 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 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

Ms Kerr and Mr Savage are the separated parents of [Child 1], born September 2015. A child support case has been registered with the Department of Human Services – Child Support (the Department) since 14 December 2016 and registered for collection since that date. Child support is payable on the basis that Ms Kerr has 100% care of [Child 1] and Mr Savage was at all relevant times assessed as liable to pay child support to Ms Kerr.
There has been a previous change of assessment determination made on 6 May 2017, on application from Ms Kerr, dated 31 January 2017. The decision-maker (DM) determined not to change the administrative assessment in place at the time and indicated that Mr Savage had part-time employment (10 hours per week) with [Employer 1] ([in a position]) and was only earning about $340 per week ($17,680). I note that Mr Savage’s 2016/17 income tax return (folio 85) indicates he earned $32,572 (gross) or $626 per week from [Employer 1] at that time.
For the following child support period from 1 September 2017 to 30 June 2018 Mr Savage’s child support liability had been administratively assessed as being $1,487 per annum based on his 2016/17 adjusted taxable income of $32,901 and Ms Kerr’s 2016/17 adjusted taxable income of $15,821.
On 28 June 2018, Ms Kerr applied to the Department for another change of assessment on the basis that Mr Savage’s income, property, financial resources and earning capacity were not accurately reflected in the administrative assessment.
On 30 June 2018, Mr Savage contacted the Department to lodge an income estimate for 2018/19, stating that he now only worked four hours per week for [Employer 1] and his income was about $100 per week or $5,214 per year. As a result, Mr Savage’s child support liability decreased to the minimum annual rate ($420 per year) from 1 July 2018.
On 1 August 2018, [DM] determined that Mr Savage’s financial resources were greater than previously known and decided to set Mr Savage’s adjusted taxable income…

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.

Keep reading for free

Create a free CaseChat account to read Savage and Kerr (Child support) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] AATA 5017
Decision Date: 15 October 2019

CaseChat Overview and Summary

The case of *Savage and Kerr* 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 liable parent possessed income, property, and financial resources that were not adequately reflected in the assessment. The matter came before the court for review of a previous decision.

The primary legal issue before the court was whether a ground for departure was established, specifically concerning the benefits derived by the liable parent from their business. The court was required to determine if these benefits constituted income, property, or financial resources that warranted an adjustment to the child support assessment.

The court found that the liable parent derived significant benefits from their business that were not captured by the standard assessment. Applying the principles of the *Child Support (Registration and Collection) Act 1988*, the court determined that these benefits constituted a financial resource that justified a departure from the assessed amount. The court reasoned that the liable parent had the capacity to pay a higher amount of child support due to these business benefits.

Consequently, the court set aside the previous decision and substituted its own determination, ordering a departure from the assessed child support amount to reflect the liable parent's actual financial capacity.

Orders