Dunsford and Dunsford (Child support) - [2019] AATA 1196

Dunsford and Dunsford (Child support) [2019] AATA 1196 (2 April 2019)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2017/AC012936
APPLICANT:  Mr Dunsford
OTHER PARTIES:  Child Support Registrar
Ms Dunsford

TRIBUNAL:Member M Kennedy
DECISION DATE: 2 April 2019
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the objection is allowed so as to vary Mr Dunsford’s adjusted taxable income to $185,000pa from 14 February 2017 until a terminating event in respect of the youngest child of the assessment.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the liable parent - benefits derived from business - income from family trust - 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

This statement of reasons proceeds from the decision and reasons given on 28 March 2019 in respect of a preliminary matter heard on 19 December 2018. As mentioned in those reasons Mr Dunsford and Ms Dunsford are the parents of two children, in respect of whom a child support assessment is in place.
On 21 November 2017 Mr Dunsford applied to the Tribunal for review of a decision made by an objection officer on 28 October 2017. That decision had disallowed Mr Dunsford’s objection to a decision on a change of assessment application varying Mr Dunsford’s income to $200,000pa for the period 14 February 2017 to 1 May 2019. That is the decision under review.
At the time of the application for a change of assessment child support was calculated on the basis of an adjusted taxable income of $91,925 for Mr Dunsford (reflecting the amount varied by the SSAT in its decision of 17 October 2012) and Ms Dunsford’s adjusted taxable income of $50,917 (an estimate), producing an annual rate of $2,157pa.

ISSUES

The legislation relevant to this review is contained in the Child Support (Assessment) Act 1989 and in the Child Support (Registration and Collection) Act 1988. The rate of child support payable by a liable parent is usually based on an administrative assessment under Part 5 of the Assessment Act. This requires the application of a statutory formula which takes into account factors such as the number and age of children, the level of care provided and the income of each parent.
Under section 98B of the Assessment Act, if special circumstances exist, a liable parent or a carer entitled to child support may apply to the Registrar in writing, requesting a departure from the administrative assessment in relation to a child.
Under section 98C of the Assessment Act, before making a departure determination on an application made under section 98B of the Assessment Act, the Registrar must be satisfied that in the special circumstances 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.

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Details

Case: [2019] AATA 1196
Decision Date: 2 April 2019

CaseChat Overview and Summary

This matter concerned an appeal by the liable parent, Mr Dunsford, against a departure determination made by the Registrar of Child Support. The dispute centred on the Registrar's assessment of Mr Dunsford's income and financial resources, specifically in relation to benefits derived from his business and income from a family trust, for the purpose of calculating child support liability. The appeal was heard by the Child Support Registrar.

The primary legal issue before the Registrar was whether the Registrar had erred in making the departure determination, and if so, whether the determination should be set aside and substituted with a new one. This required the Registrar to consider the extent to which Mr Dunsford's income, property, and financial resources, including those derived from his business and the family trust, should be taken into account when assessing his child support obligations.

The Registrar reviewed the evidence and the Registrar's previous decision. The Registrar found that the previous decision had failed to adequately consider the benefits Mr Dunsford derived from his business and the income from the family trust. Applying the principles of the *Child Support (Registration and Collection) Act 1988*, the Registrar determined that these resources were relevant to Mr Dunsford's capacity to pay child support. Consequently, the Registrar set aside the original departure determination and substituted it with a new determination that reflected a more accurate assessment of Mr Dunsford's financial position.

Orders