Shirley and McLean (Child support) - [2023] AATA 3400

Shirley and McLean (Child support) [2023] AATA 3400 (30 August 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/BC025823
APPLICANT:  Mr Shirley
OTHER PARTIES:  Child Support Registrar
Mrs McLean

TRIBUNAL:Member E Kidston
DECISION DATE: 30 August 2023
DECISION:

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

for the period 8 August 2022 to 30 June 2023, Mr Shirley’s adjusted taxable income is varied to $79,000;
for the period 1 July 2023 until a terminating event in relation to [Child 1], Mr Shirley’s adjusted taxable income is varied to $69,000; and
for the period 27 January 2024 until a terminating event in relation to [Child 1], Ms McLean’s adjusted taxable income is varied to $113,000.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of both parents – 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

This review concerns an application made by Mr Shirley on 22 March 2023 in relation to a change of assessment objection decision made by Services Australia – Child Support (Child Support) on 24 February 2023.

BACKGROUND

Mr Shirley and Ms McLean are the separated parents of [Child 1] (born 2006). A child support case was registered with Child Support in December 2006. Child Support’s records show that for the relevant period Ms McLean has primary care of [Child 1] of 83% and that Mr Shirley has 17% care and is the parent liable to pay child support.
In July 2022, Mr Shirley was in contact with Child Support and first objected to an assessment made by Child Support on 12 July 2022. He subsequently withdrew the objection and instead made an application for a change in the administrative assessment of child support on 17 August 2022 following Child Support’s decision of 8 August 2022. A number of grounds for departure were noted in Mr Shirley’s application including his high contact costs and various payments made directly to [Child 1]. Ms McLean disagreed with Mr Shirley’s application.
For the purpose of this review, the administrative assessment of child support relevantly in place at the time of Mr Shirley’s application for departure was as follows:
From 1 August 2022 to 7 August 2022 an annual rate of $6,469 based on 2022 ATI [adjusted taxable income] of $91,410 for Mr Shirley and $87,395 provisional ATI for Ms McLean.
From 8 August 2022 to 30 June 2023 an annual rate of $3,741 based on an estimate income of $70,783 for Mr Shirley. Ms McLean is assessed on 2021/2022 adjusted taxable income of $88,113.
On 28 September 2022 Mr Shirley contacted Child Support to inform he had ceased employment. Accordingly,…

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 Shirley and McLean (Child support)

Details

AGLC: Shirley and McLean (Child support) [2023] AATA 3400
Case: [2023] AATA 3400
Decision Date: 30 August 2023

CaseChat Overview and Summary

This matter concerned an appeal by Shirley against a departure determination made by the Registrar of the Child Support Agency concerning child support payable to McLean. The dispute centred on the Registrar's assessment of the income, property, and financial resources of both parents when making the departure determination.

The primary legal issue before the court was whether the Registrar had erred in law in making the departure determination. This required the court to consider whether a ground for departure was established under the *Child Support (Registration and Collection) Act 1988* (Cth) and, if so, whether the Registrar's decision to depart from the assessment was justified.

The court found that a ground for departure was established, as the Registrar had correctly considered the income, property, and financial resources of both parties. However, the court determined that the Registrar's decision to depart was not adequately reasoned and therefore set aside the original departure determination. The court substituted its own decision, departing from the assessment and making new orders regarding child support.

Orders