Xander and Tackett (Child support) - [2018] AATA 4004

Xander and Tackett (Child support) [2018] AATA 4004 (24 August 2018)

DIVISION: Social Services & Child Support Division

REVIEW NUMBER: 2018/CC013621

APPLICANT: Mr Xander

OTHER PARTIES: Child Support Registrar

Ms Tackett

TRIBUNAL: Member J Cuthbert

DECISION DATE: 24 August 2018

DECISION:

The tribunal sets aside the decision under review and substitutes a decision to depart from the child support assessment from 16 August 2017 to 31 December 2018 by varying:

Mr Xander’s adjusted taxable income to $97,000; and
Ms Tackett’s adjusted taxable income to $45,000.

CATCHWORDS
Child support - Departure determination - Income, property, financial resources and earning capacity of the parents - 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

HISTORY

This review concerns an application for a change to a child support assessment made by Mr Xander on 16 August 2017. Mr Xander and Ms Tackett are the parents of [name] (also known as [Child 1], born 2005) and [Child 2] (born 2013). There has been a child support assessment in place, made by the Department of Human Services – Child Support since 17 December 2015. Since 15 October 2016 the child support assessment has been based on the parents sharing care of both children equally.
From 15 October 2016 to 31 August 2017 Mr Xander was required to pay an annual rate of child support of $5,634 based on his 2015/16 adjusted taxable income of $77,124 and Ms Tackett’s 2015/16 adjusted taxable income of $29,372. On 6 February 2017 Mr Xander’s application for a departure from the assessment was refused.
For the child support period starting on 1 September 2017 Mr Xander was required to pay an annual rate of child support of $7,432 based on his 2016/17 adjusted taxable income of $87,200 and a provisional income of $10,021 for Ms Tackett.
On 16 August 2017 Mr Xander again applied to the Department for a departure from the assessment on the grounds that Ms Tackett’s income, property, financial resources and earning capacity were not properly reflected in the assessment and his capacity to pay child support is affected by his duty to support his parents. Ms Tackett lodged a cross-application on the basis of Mr Xander’s income, property and financial resources.
On 24 November 2017 a decision was made to depart from the child support assessment by varying the annual rate of child support payable by Mr Xander to $6,000 from 1 November 2017 to 30 September 2018.
Mr Xander’s objection to that decision was disallowed on 16 February 2018. On 1 March 2018 Mr Xander lodged an application for a review of the objection decision with the tribunal.
The matter was heard on 25 July 2018. Mr Xander and Ms Tackett…

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 Xander and Tackett (Child support)

Details

AGLC: Xander and Tackett (Child support) [2018] AATA 4004
Case: [2018] AATA 4004
Decision Date: 24 August 2018

CaseChat Overview and Summary

The case of *Xander and Tackett* concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth). The dispute involved the assessment of child support obligations between the parties, Xander and Tackett. The matter came before Judicial Officer Cuthbert M.

The primary legal issue before the court was whether to depart from the formula assessment of child support. This required the court to consider the income, property, financial resources, and earning capacity of both Xander and Tackett, and to determine if the existing assessment was unfair in the circumstances.

Judicial Officer Cuthbert M reasoned that a departure from the formula assessment was warranted. The court applied the principles established in child support legislation, which permit departure where the assessment would be unfair due to specific factors relating to the parents' financial circumstances and capacities. The court found that the circumstances presented justified a departure to ensure a more equitable outcome.

The decision to depart from the formula assessment was made, and the original decision under review was set aside and substituted with a new determination.

Orders