Dashwood and Dashwood (Child support) - [2021] AATA 4495

Dashwood and Dashwood (Child support) [2021] AATA 4495 (1 October 2021)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2021/PC021123
APPLICANT:  Mr Dashwood
OTHER PARTIES:  Child Support Registrar
Mrs Dashwood

TRIBUNAL:Member S Brakespeare
DECISION DATE: 1 October 2021
DECISION:

The decision under review is varied so that there is a departure determination in the following terms:

For the period 28 September 2020 to 31 March 2023 Mr Dashwood’s adjusted taxable income is varied to $220,000 per annum.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the liable parent – income derived from business – decision under review varied

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

BACKGROUND

Mr Dashwood is the parent liable to pay child support to Mrs Dashwood in respect of their children [Child 1], who is 15, and [Child 2] who is 11. The child support case commenced from 31 December 2019.
On 28 September 2020 Mrs Dashwood lodged an application for a change of assessment citing a ground relating to the income, property and financial resources of Mr Dashwood. At the time of the application the following administrative assessment was in place:
·For the period 31 July 2020 to 30 June 2021 Mr Dashwood was liable to pay an annual rate of child support of $5,392. The assessment was based on an estimated adjusted taxable income for Mr Dashwood of $52,142 and an estimated adjusted taxable income for Mrs Dashwood of $26,071. The assessment took into account that Mrs Dashwood had primary care of both children.
There have been a number of changes that have subsequently affected the administrative assessment including changes to the care percentages in respect of the children (the first change having effect from 8 November 2020) and an update to Mrs Dashwood’s income estimate to $45,848 with effect from 14 April 2021.
On 20 November 2020 an officer of the Child Support Agency made a departure determination in the following terms (the original decision):
·For the period 1 October 2020 to 31 October 2022 Mr Dashwood’s adjusted taxable income is varied to $230,000.
Mr Dashwood objected to the original decision. On 18 March 2021 an objections officer of the Child Support Agency partly allowed the objection and substituted a departure determination in the following terms (the objection decision):
·For the period 28 September 2020 to 31 March 2023 Mr Dashwood’s adjusted taxable income is varied to $339,771;
·Mrs Dashwood’s self-support amount is reduced by 50%.
Mr Dashwood lodged an application for review of the objection decision with the tribunal. A telephone directions hearing was held on 30 June 2021. Both parties participated. A hearing was held on 1 October 2021. Mr Dashwood and Mrs Dashwood both gave evidence on affirmation to the tribunal…

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.

Keep reading for free

Create a free CaseChat account to read Dashwood and Dashwood (Child support) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] AATA 4495
Decision Date: 1 October 2021

CaseChat Overview and Summary

The matter of *Dashwood and Dashwood (Child support)* concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth). The applicant sought to vary a child support assessment, focusing on the income, property, and financial resources of the liable parent, particularly income derived from a business. The decision was made by M S Brakespeare.

The primary legal issue before the court was whether the existing child support assessment should be varied. This required the court to consider whether the liable parent's income, property, and financial resources, specifically those generated through their business activities, were such that the assessment did not adequately reflect their capacity to pay. The court had to determine if a departure from the standard assessment was warranted based on these financial circumstances.

The court's reasoning involved an examination of the liable parent's business income and its availability for child support purposes. The principles applied would have centred on the legislative provisions governing departure determinations, which allow for adjustments to assessments when specific financial circumstances are found to be exceptional or not adequately addressed by the standard formula. The court would have assessed whether the income derived from the business was genuinely available to the liable parent and, if so, how it should be factored into the child support calculation. The decision under review was ultimately varied.

Orders