Leavitt and Leavitt (Child support) - [2022] AATA 3973

Leavitt and Leavitt (Child support) [2022] AATA 3973 (21 September 2022)

DIVISION:Social Services & Child Support Division
REVIEW NUMBERS:  2022/SC024040 & 2022/SC024218 & 2022/SC24219
APPLICANT:  Mr Leavitt
OTHER PARTIES:  Child Support Registrar
Ms Leavitt

TRIBUNAL:Member M Baulch
DECISION DATE: 21 September 2022
DECISION:

The tribunal set aside the decisions under review and, in substitution, decided that the adjusted taxable incomes applying in the child support assessment for Mr Leavitt are as follows:

$51,151 for the period 1 January 2020 to 31 March 2021;
$52,638 for the period 1 April 2021 to 31 August 2021; and
$52,638 for the period 1 September 2021 to 7 September 2021.

CATCHWORDS

CHILD SUPPORT – particulars of the administrative assessment – whether the adjusted taxable income of the liable parent was correctly applied – 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

BACKGROUND

The Child Support (Assessment) Act 1989 (the Act) provides for an administrative assessment of the child support payable by one separated parent to the other. It uses a statutory formula which contains variables such as the parents’ adjusted taxable incomes, the number and ages of their children and the percentages of care.
Mr Leavitt and Ms Leavitt are the separated parents of [Child 1], in respect of whom Services Australia – Child Support (Child Support) has made child support assessments. That assessment ended [in] September 2021, when [Child 1] turned 18 years of age.
On 11 August 2021, Child Support decided to update the incomes used to determined Mr Leavitt’s child support liability, such that:
·      A 2018–19 provisional income of $228,826 was applied to the child support assessment from 1 January 2020 to 31 March 2021;
·      A 2019–20 provisional income of $234,613 was applied to the child support assessment from 1 April 2021 to 31 August 2021; and
·      A 2020–21 provisional income of $241,290 was applied to the child support assessment from 1 September 2021 to 7 September 2021
(the decisions under review).
Mr Leavitt objected to those decisions and, on 19 May 2022, those objections were disallowed. Mr Leavitt has now applied to this tribunal seeking an independent review of Child Support’s decisions.
A hearing into the applications for review was held by the tribunal on 21 September 2022. Mr Leavitt and Ms Leavitt both participated in the hearing by conference telephone, and both gave evidence under affirmation during the hearing. A representative of the Child Support Registrar (the Registrar) did not participate in the hearing.
The tribunal had before it three bundles of relevant documents provided to it, and the parties, by the Registrar pursuant to section 37 of the Administrative Appeals Tribunal Act 1975; 81, 78 and 76 pages. The tribunal also had regard…

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: [2022] AATA 3973
Decision Date: 21 September 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered a dispute between the parties, referred to as Leavitt and Leavitt, concerning the administrative assessment of child support. The applicant sought to set aside a decision made by the Registrar of the Child Support Agency regarding the adjusted taxable income of the liable parent.

The primary legal issue before the Tribunal was whether the adjusted taxable income of the liable parent had been correctly applied in the child support assessment. This involved determining the appropriate method for calculating this income and whether the figures used by the Registrar were accurate and in accordance with the relevant legislative provisions.

The Tribunal reviewed the evidence and submissions presented by both parties. It applied the principles of the *Child Support (Registration and Collection) Act 1988* and relevant case law concerning the calculation of adjusted taxable income. The Tribunal found that the Registrar's decision contained an error in the application of the liable parent's adjusted taxable income. Consequently, the Tribunal set aside the original decision and substituted its own decision.

Orders