Severin and Severin (Child support) - [2021] AATA 1291

Severin and Severin (Child support) [2021] AATA 1291 (17 February 2021)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2020/MC019744
APPLICANT:  Ms Severin
OTHER PARTIES:  Child Support Registrar
Mr Severin

TRIBUNAL:Member M Martellotta
DECISION DATE: 17 February 2021
DECISION:

The decision made on 6 August 2020 is affirmed.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the liable parent – a ground for departure established – not just and equitable to depart – decision under review affirmed

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 Severin and Mr Severin are the parents of a child born in August 2005 who is a child for the purposes of the administrative assessment of child support subject to this review. The child is in the primary care of Ms Severin.
On 30 October 2019 Ms Severin lodged a change of assessment application with the now Services Australia (Child Support) (the Agency). The Agency considered whether there were grounds to depart from the administrative assessment on the basis that the other parent’s income, property and financial resources and earning capacity make the administrative assessment unfair. [1]
[1] Grounds of application were Reasons 8A and 8B.
At the time of Ms Severin’s change of assessment application according to the Agency the relevant assessment had been in place:
·For the period 1 August 2019 to 30 June 2020 the annual rate of child support was $6,736 based upon Mr Severin’s income estimate of $54,324 and Ms Severin’s 2018/2019 adjusted taxable income (ATI) of $4,505.
·For the period 1 July 2020 to 31 October 2020 the annual rate of child support was $6,341 based upon Mr Severin’s 2018/19 ATI of $52,609 and Ms Severin’s 2018/2019 adjusted taxable income (ATI) of $4,504.
On 12 February 2020 the Agency decided that Reasons 8A and 8B had been established and in October 2021 Mr Severin’s ATI was varied to $107,666.[2] On objection lodged by Mr Severin the Agency decided, on 6 August 2020, that Reason 8A was established but decided to set aside the decision under review and instead the normal administrative provisions of the assessment were to apply.
[2] Mr Severin did not participate in that review process.
Ms Severin lodged an application seeking independent review by the tribunal. The parties participated in a telephone direction hearing and the tribunal issued directions.[3] On 27 January 2021 the parties participated in a hearing conducted by conference telephone. Ms Severin was assisted by an interpreter of the Hindi language. Evidence was given under affirmation. The following documents were also considered; documents provided by the Agency (302 pages) and Ms Severin (A1-A21) and Mr Severin (B1-B56).
[3] Dated 18 November 2020
The tribunal deferred making a decision in order to seek…

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 1291
Decision Date: 17 February 2021

CaseChat Overview and Summary

The matter of *Severin and Severin* 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 decision was made by M Martellotta M.

The primary legal issue before the court was whether a ground for departure was established, and if so, whether it would be just and equitable to make a departure determination. This required the court to consider the specific circumstances of the case in light of the provisions of the *Child Support (Registration and Collection) Act 1988* relating to departure from child support assessments.

The court's reasoning focused on whether the liable parent's financial position warranted a departure from the standard assessment. Having considered the evidence presented, the court found that a ground for departure was indeed established. However, after weighing all relevant factors, the court concluded that it would not be just and equitable to make a departure determination in this instance. Consequently, the original decision under review was affirmed.

Orders