Tritton and Ashley (Child support) - [2023] AATA 4466

Tritton and Ashley (Child support) [2023] AATA 4466 (14 December 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/MC026560
APPLICANT:  Mr Tritton
OTHER PARTIES:  Child Support Registrar
Ms Ashley

TRIBUNAL:Senior Member S De Bono
DECISION DATE: 14 December 2023
DECISION:

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

For the period 12 October 2022 to 23 April 2023 Mr Tritton’s adjusted taxable income is set at $99,000;
For the period 24 April 2023 to 14 October 2023 Mr Tritton‘s adjusted taxable income is set at $133,000;
For the period 15 October 2023 to 14 January 2024 Mr ’s administrative assessment of child support reverts back to the administrative assessment based on Mr Tritton’s adjusted taxable income of $87,007;
For the period 15 January 2023 to 31 December 2024 Mr Tritton’s adjusted taxable income is set at $133,000.

CATCHWORDS

CHILD SUPPORT – departure determination – income 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

The issue to be considered in this application is whether there is a reason to change the administrative assessment of child support and, if so, whether it is just and equitable and otherwise proper to do so.
Ms Ashley and Mr Tritton are the parents of [Children 1-3] (the children). There has been a child support agreement in place from 14 November 2017. Services Australia (Child Support) has collected child support from Mr Tritton as the parent liable to pay child support from 11 October 2022. The children are recorded as being in Ms Ashley’s 100% care.
Prior to Ms Ashley’s departure application (known as a change of assessment application) the administrative assessment in place was as follows:
·For the period 1 March 2022 to 31 August 2022 Mr Tritton was required to pay child support of $5,655 annually based on his 2020/2021 adjusted taxable income (ATI) of $47,266 and Ms Ashley’s provisional ATI of $27,574.
·For the period 1 September 2022 to 30 November 2023 Mr Tritton was assessed to pay $15,990 in child support based on his 2021/2022 ATI of $87,007 and Ms Ashley’s provisional ATI of $27,574.
There was a previous change of assessment which applied for the period 12 February 2020 to 28 February 2022 which set Mr Tritton’s ATI at $90,661.
On 11 October 2022 Ms Ashley lodged a change of assessment application on the basis that in the special circumstances of the case, the administrative assessment of child support would result in an inequitable level of financial support to be provided by Mr Tritton, because his income and financial resources were not reflected in the administrative assessment of…

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 Tritton and Ashley (Child support)

Details

AGLC: Tritton and Ashley (Child support) [2023] AATA 4466
Case: [2023] AATA 4466
Decision Date: 14 December 2023

CaseChat Overview and Summary

The case of Tritton and Ashley concerned a departure determination made by the Child Support Registrar regarding the child support assessment of the liable parent, Mr Tritton. Ms Ashley, the payee parent, sought a departure from the assessment, arguing that Mr Tritton's income and financial resources were not accurately reflected due to benefits he derived from his business. The matter came before the court for review of the Registrar's decision.

The primary legal issue before the court was whether the Registrar had erred in refusing to make a departure determination under section 117 of the Child Support (Registration and Collection) Act 1988. Specifically, the court had to consider whether Mr Tritton's actual financial circumstances, including benefits derived from his business, were such that the assessment did not make proper allowance for his ability to pay child support.

In reaching its decision, the court reviewed the evidence presented regarding Mr Tritton's business and the financial benefits he received. The court applied the principles outlined in the Child Support (Registration and Collection) Act 1988, focusing on the definition of income and financial resources and the circumstances under which a departure determination may be made. The court found that the Registrar had failed to properly consider certain financial benefits Mr Tritton derived from his business, which impacted his capacity to pay child support.

Consequently, the court set aside the Registrar's decision and substituted its own determination. The court ordered that Mr Tritton's child support assessment be varied to reflect the additional income and financial resources identified.

Orders