Levett and Haycraft (Child support) - [2024] AATA 783

Levett and Haycraft (Child support) [2024] AATA 783 (29 February 2024)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/MC026649
APPLICANT:  Mr Levett
OTHER PARTIES:  Child Support Registrar
Ms Haycraft

TRIBUNAL:Member J Leonard
DECISION DATE: 29 February 2024
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that:

Mr Levett’s adjusted taxable income is varied to $86,964 from 8 December 2022, and
From 1 July 2025 and annually thereafter until a terminating event, Mr Levett’s adjusted taxable income is increased by the child support inflation factor applicable on 1 July of that year.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the parents – a ground for departure established – 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

Mr Levett and Ms Haycraft are the separated parents of [Child 1]. According to records of Services Australia – Child Support (Child Support), the child support assessment was registered on 29 April 2015 and Child Support has been responsible for collection of child support from that date.
The child support liability was initially calculated in accordance with the administrative assessment, as provided in the Child Support (Assessment) Act 1989 (the Act). The calculation was based on the income recorded by each parent in their most recently completed income tax returns, as lodged with the Australian Taxation Office (the ATO).
It is open to either parent to lodge an application for a departure from the administrative assessment under Part 6A of the Act if they consider the administrative assessment results in an unfair amount of child support payable by one parent.
There have been numerous applications. The most recent was in May 2021 when Ms Haycraft lodged such an application on the basis that the administrative assessment produced an unfair outcome due to the income, property and financial resources of the parents (Reason 8). On 22 June 2021 Child Support made a decision to vary Mr Levett’s adjusted taxable income to $60,000 for the period 1 July 2021 to 31 October 2023. [Child 1] was recorded as being in the shared care of the parents. As a result of this decision, Ms Haycraft was assessed to pay an annual rate of child support of $5,230. Neither parent objected to that decision which then became the underlying administrative assessment.
On 3 November 2022 Child Support was notified of a change to the care of [Child 1]. From 25 September 2022, Mr Levett is recorded as having 100% care of [Child 1] and Ms Haycraft is recorded as having 0% care of [Child 1].
On 8 December 2022 Ms Haycraft submitted an application for a departure from the administrative…

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: [2024] AATA 783
Decision Date: 29 February 2024

CaseChat Overview and Summary

The case of *Levett and Haycraft* concerned a child support departure determination. The applicant sought to depart from the administrative assessment of child support payable by the respondent. The dispute centred on the income, property, and financial resources of both parents, which were relevant to the grounds for departure. The matter was heard by J Leonard M.

The primary legal issue before the court was whether a ground for departure from the child support assessment had been established. If a ground was established, the court was then required to determine whether it was just and equitable to make a departure order, and if so, what that departure order should be.

J Leonard M found that a ground for departure was established. The court reasoned that the respondent possessed significant financial resources that were not adequately reflected in the administrative assessment. Applying the principles of the *Child Support (Registration and Collection) Act 1988*, the court concluded that it was just and equitable to depart from the assessment. The court set aside the original decision and substituted its own determination.

Orders