Shipway and Rolt (Child support) - [2021] AATA 3685

Shipway and Rolt (Child support) [2021] AATA 3685 (22 July 2021)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2020/MC020499
APPLICANT:  Mr Shipway
OTHER PARTIES:  Child Support Registrar
Ms Rolt

TRIBUNAL:Member M Martellotta
DECISION DATE: 22 July 2021
DECISION:

The tribunal sets aside the decision under review so that from 1 May 2020 until 31 December 2021 Mr Shipway’s ATI is varied to $125,000.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the liable parent - benefits derived from business - 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 Shipway and Ms Rolt are the parents of two children born [in] 2016 and [2017]. The children are in the primary (100%) care of Ms Rolt.
On 5 December 2019 Ms Rolt lodged a change of assessment application on the grounds of reason 8A which refers to a parent’s income, financial resources and property. At that point of time, the administrative assessment in place was as follows:[1]
[1] The tribunal noted that the child support periods referenced in the objections officer’s decision appeared to be different from the child support periods provided in the Agency papers, see page 501. The tribunal has referenced the periods as set out in the Agency screens.

Child Support Period	Mr Shipway	Ms Rolt	Annual Liability
22 Aug 2019- 21 Nov 2019	$83,368 (18/19 Provisional)	$37,112 (18/19 ATI)	$13,792
22 Nov 2019 -31 Aug 2020	$24,120 (18/19 ATI)	$37,112 (18/19 ATI)	$435 (FAR)[2]
1 Sept 2020-30 Nov 2021	$0 (19/20 ATI)	$63,035 (19/20 ATI)	$435 (FAR)

[2] Fixed Annual Rate applies where a parent declared income below the max. parenting payment single rate and is not in receipt of income support.

Services Australia – Child Support (the Agency) found the ground established and decided to vary the assessment on 19 March 2020 so that for the period 22 August 2020 to 21 November 2020 Ms Rolt’s adjusted taxable income (ATI) was varied to $53,000 and Mr Shipway’s ATI was varied to $82,220 for the period 22 August 2020 to 31 October 2021.
Mr Shipway objected to the decision. On 2 December 2020 the Agency decided to vary Mr Shipway’s ATI to $146,832 for the period 1 May 2020 to 30 November 2021. This increased Mr Shipway’s annual liability to $25,316. Mr Shipway lodged an application seeking independent review by the tribunal.
The tribunal convened a telephone directions hearing attended by the parental parties. Mr Shipway did not fully comply with those directions. A hearing was held on 22 July 2021. Mr Shipway and Ms Rolt participated by conference telephone and they each gave their evidence on affirmation.
The following documents were provided: The Agency (518 pages), Mr Shipway…

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 Shipway and Rolt (Child support)

Details

AGLC: Shipway and Rolt (Child support) [2021] AATA 3685
Case: [2021] AATA 3685
Decision Date: 22 July 2021

CaseChat Overview and Summary

The matter of *Shipway and Rolt* concerned an application to review a departure determination made by the Child Support Registrar. The applicant, the liable parent, sought to have the determination set aside. The Registrar's determination had increased the assessed child support payable by the liable parent, based on the assessment of their income, property, and financial resources, specifically considering benefits derived from a business.

The primary legal issue before the court was whether the Child Support Registrar had erred in making the departure determination. This involved scrutinising whether the Registrar had correctly considered the income, property, and financial resources of the liable parent, particularly the benefits they derived from their business, when assessing child support obligations. The court was required to determine if the Registrar's decision was justified under the relevant provisions of the *Child Support (Registration and Collection) Act 1988*.

The court reviewed the evidence and the Registrar's decision-making process. It was found that the Registrar had not adequately considered all relevant financial information pertaining to the liable parent's business and the benefits derived therefrom. Consequently, the court concluded that the departure determination was not soundly based. The court set aside the Registrar's decision and substituted its own determination, adjusting the child support assessment.

Orders