Tuckey and Tuckey (Child support) - [2025] ARTA 253

Tuckey and Tuckey (Child support) [2025] ARTA 253 (23 January 2025)

Applicant/s: Mr Tuckey

Respondent: Child Support Registrar

Other Parties: Ms Tuckey

Tribunal Number: 2024/MC028207
Tribunal: Member R Anderson
Place:Melbourne
Date:23 January 2025
Decision:The Tribunal sets aside the decision under review and, in substitution, decides that there is no departure from the administrative assessment of child support.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources – ground for departure – reduced work capacity – departure determination not just and equitable – 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 pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.

Statement of Reasons

BACKGROUND

Mr Tuckey and Ms Tuckey are the separated parents of [Child 1] and [Child 2]. According to records of Services Australia – Child Support (Child Support), the child support assessment was initially registered on 13 October 2006. In the meantime the parents reconciled. According to Child Support records, Ms Tuckey applied to register the child support assessment again on 29 June 2022 and Child Support commenced responsibility for collection of child support from Mr Tuckey on 25 May 2023. At that time, [Child 2] was no longer a child of the assessment.
The child support liability was calculated in accordance with the administrative assessment, as provided in the Child Support (Assessment) Act 1989 (the Act). The calculation was based on the income recorded by each parent in their most recently completed income tax returns, as lodged with the Australian Taxation Office (ATO). It is open to either parent to lodge an application for a departure from the administrative assessment under Part 6A of the Act if they consider the administrative assessment results in an unfair amount of child support payable by one parent. Ms Tuckey lodged such an application on 7 March 2024 on the basis that the assessment was unfair because of the income, property and financial resources available to Mr Tuckey, commonly referred to as Reason 8.
Mr Tuckey cross applied on 28 March 2024 on the basis of Reasons, 4, 5, 7 and 8, which included consideration of [Child 1’s] income and financial resources, the financial support Mr Tuckey has provided to Ms Tuckey through car repayments and his own costs of self-support.
When the child support period commencing 1 September 2023 applied the 2022/23 adjusted taxable income (ATI) of Mr Tuckey in the amount of $143,924 to the child support assessment, the annual child support liability payable by Mr Tuckey to Ms Tuckey in respect of [Child 1] increased from $10,193 to $22,635.
The administrative assessment on 7 March 2024 was based on a derived ATI for Ms Tuckey in respect of 2022/23 in the amount of $25,122. The ATI of Mr Tuckey was based on an estimate. Child Support accepted a first estimate from Mr…

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 Tuckey and Tuckey (Child support)

Details

AGLC: Tuckey and Tuckey (Child support) [2025] ARTA 253
Case: [2025] ARTA 253
Decision Date: 23 January 2025

CaseChat Overview and Summary

The matter before the Tribunal was an application by Mr Tuckey for a review of a decision of the Child Support Registrar. The Registrar had determined that there was a ground to depart from the administrative assessment of child support payable by Mr Tuckey to Ms Tuckey in respect of [Child 1]. The Tribunal was required to consider whether the departure determination was just and equitable. The Tribunal found that a ground for departure existed because the administrative assessment did not accurately reflect Mr Tuckey's income, property and financial resources. However, it was not just and equitable to depart from the administrative assessment. The Tribunal set aside the departure determination and in its place decided that there was no departure from the administrative assessment of child support. As such, there was no requirement to consider whether the departure determination was otherwise proper.

Orders