Dewing and Leatherwood (Child support) - [2021] AATA 1973

Dewing and Leatherwood (Child support) [2021] AATA 1973 (14 May 2021)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2020/MC020149
APPLICANT:  Mr Dewing
OTHER PARTIES:  Child Support Registrar
Ms Leatherwood

TRIBUNAL:Member R Anderson
DECISION DATE: 14 May 2021
DECISION:

The tribunal sets aside the decision and, in substitution decides that:

The adjusted taxable income of Mr Dewing in respect of the period 1 January 2019 to 31 December 2020 is varied to $100,000 per annum;
The adjusted taxable income of Mr Dewing in respect of the period 1 January 2021 to 31 December 2022 is varied to $110,000 per annum; and
The adjusted taxable income of Ms Leatherwood in respect of the period 1 January 2019 to 31 December 2022 is varied to $80,000 per annum.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of both parents – business and trust resources – a ground for departure established based on the financial resources of both 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 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

According to Services Australia - Child Support (the Agency), Mr Dewing and Ms Leatherwood are recorded as the parents of [the child]. The child support assessment was registered on 25 March 2011, following the birth of [the child]. The Agency has been responsible for the collection of child support from Mr Dewing since that time and Ms Leatherwood is attributed with 100% care of [the child].
It is open to either parent to lodge an application for a departure from the administrative assessment under Part 6A of the Child Support (Assessment) Act 1989 (the Act) if they consider the administrative assessment results in an unfair amount of child support payable by one parent. Since 2015, when [the child] commenced his primary schooling at a private school, numerous departure decisions have been in effect. The most recent departure decision was made by a delegate of the child support registrar on 20 April 2017. The decision was to increase the annual rate of child support payable by Mr Dewing by $5,504 in respect of the 2017 calendar year and by $5,724 in respect of the 2018 calendar year. The increased rate of child support represented a 50% contribution by Mr Dewing to the private school fees of [the child].
At 1 January 2019 the administrative assessment reverted to being calculated on the basis of the most recently lodged tax returns of both parties with no adjustment in respect of private school fees. Ms Leatherwood lodged a fresh departure application on 22 May 2019 on the basis that the administrative assessment produced an unfair outcome due to the income, property and financial resources available to 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 Dewing and Leatherwood (Child support)

Details

AGLC: Dewing and Leatherwood (Child support) [2021] AATA 1973
Case: [2021] AATA 1973
Decision Date: 14 May 2021

CaseChat Overview and Summary

This matter concerned an appeal by the father, Dewing, against a departure determination made by the Registrar of the Child Support Agency concerning child support payable for the parties' two children. The mother, Leatherwood, sought a departure from the formula assessment of child support, arguing that the father's actual ability to pay was higher than his assessed income due to his significant business and trust interests.

The primary legal issue before the court was whether the Registrar had erred in making a departure determination under section 117 of the *Child Support (Registration and Collection) Act 1988* (Cth). Specifically, the court had to consider whether the Registrar correctly applied the grounds for departure, particularly concerning the financial resources of both parents, and whether the departure was just and equitable.

The court found that the Registrar had correctly identified that the father possessed substantial financial resources beyond his declared income, including interests in various businesses and trusts. The Registrar's reasoning that these resources significantly increased the father's capacity to pay child support was upheld. The court affirmed the principle that "financial resources" under the Act encompasses more than just assessable income, and that it was open to the Registrar to consider the totality of a parent's financial position when determining if a departure was warranted. The court concluded that the Registrar's decision to depart from the formula assessment was justified and that the departure was both legally sound and equitable.

The appeal was dismissed, and the Registrar's departure determination was affirmed.

Orders