Sheahy and Callan (Child support) - [2022] AATA 1728

Sheahy and Callan (Child support) [2022] AATA 1728 (31 January 2022)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2021/MC021435
APPLICANT:  Mr Sheahy
OTHER PARTIES:  Child Support Registrar
Ms Callan

TRIBUNAL:Senior Member F Hewson
DECISION DATE: 31 January 2022

DIRECTION TO ALTER DECISION OR REASONS FOR DECISION:

Pursuant to section 43AA of the Administrative Appeals Tribunal Act 1975, the following alteration is made to the decision:

The date of the decision, incorrectly stated to be 31 January 2021, is altered to read: 31 January 2022

Senior Member F Hewson
8 June 2022

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2021/MC021435
APPLICANT:  Mr Sheahy
OTHER PARTIES:  Child Support Registrar
Ms Callan

TRIBUNAL:Member F Hewson
DECISION DATE: 31 January 2021
DECISION:

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

for the period from 9 November 2020 to 22 November 2020 Mr Sheahy’s adjusted taxable income is varied to $54,000;
for the period from 23 November 2020 to 31 December 2022 Mr Sheahy’s adjusted taxable income is varied to $80,964; and
for the period from 9 November 2020 to 31 December 2022 the costs of the child are varied to $30,000 per annum.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the liable parent – high costs of child care – 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 Sheahy and Ms Callan are the parents of [Child 1], now aged four. According to the records of Services Australia – Child Support (Services Australia), a child support assessment in relation to [Child 1] was registered on 24 May 2017. Mr Sheahy is recorded as having 15% of the care of [Child 1] (regular care), and Ms Callan is recorded as having 85% of the care (primary care).
The Child Support (Assessment) Act 1989 (the Act) provides for an administrative assessment of the child support payable. It uses a formula which contains variables such as the parents’ adjusted taxable incomes and their percentages of care of the child. In this case it also takes into account that Mr Sheahy has two relevant dependents.
Section 98C of the Act, however, provides for a departure from the administrative assessment if the following requirements are met:
(i)that one, or more than one, of the grounds for departure referred to in subsection 117(2) exists; and
(ii)that it would be:
(A)just and equitable as regards the child, the liable parent, and the carer entitled to child support; and
(B)otherwise proper;
to make a particular determination under this Part …
For the period from 1 September 2020 to 30 November 2021, Mr Sheahy was assessed to…

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 Sheahy and Callan (Child support)

Details

AGLC: Sheahy and Callan (Child support) [2022] AATA 1728
Case: [2022] AATA 1728
Decision Date: 31 January 2022

CaseChat Overview and Summary

This matter concerned an application by the liable parent, Sheahy, for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth) to reduce his child support liability. The dispute centred on whether the costs of childcare incurred by Sheahy constituted a ground for departure, and if so, whether a departure was justified. The decision was made by SM Hewson in the [Court Name].

The primary legal issue before the Court was whether the specific circumstances of the case met the criteria for a departure from the standard child support assessment. This involved determining if the costs of childcare, as alleged by Sheahy, were of such an exceptional nature or amount that they warranted a departure under the relevant provisions of the Act. The Court also had to consider whether, if a ground for departure was established, the departure itself was fair and just in the circumstances.

SM Hewson found that the costs of childcare incurred by Sheahy were indeed of a nature and amount that established a ground for departure. The Court reasoned that the legislative intent behind the departure provisions included accommodating significant and unavoidable expenses related to a child's upbringing that were not adequately reflected in the standard assessment formula. Having established a ground for departure, the Court then considered the fairness of making such a departure. The Court concluded that it was fair and just to depart from the assessment in this instance.

Consequently, the Court set aside the original child support assessment and substituted a new assessment that reflected a reduced child support liability for Sheahy, taking into account the established childcare costs.

Orders