Leyton and Leyton (Child support) - [2022] AATA 2058

Leyton and Leyton (Child support) [2022] AATA 2058 (27 May 2022)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:   2021/SC022915
APPLICANT:  Mr Leyton
OTHER PARTIES:  Child Support Registrar
Ms Leyton

TRIBUNAL:Senior Member J Longo (Presiding)
Member H Moreland

DECISION DATE: 27 May 2022
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides to vary the annual rate of child support payable by Mr Leyton as follows:

· For the period 1 January 2021 to 31 December 2021 the annual rate of child support payable by Mr Leyton is increased by $7,664;
· For the period 1 January 2022 to 31 December 2022, the annual rate of child support payable by Mr Leyton is increased by $7,735;

CATCHWORDS

CHILD SUPPORT – departure determination – costs of education - manner expected by both parents - cost of maintaining the children are significantly affected – 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

The issue to be determined in this application is whether there is a reason to change the administrative assessment of child support and whether it is just and equitable and otherwise proper to do so.
Mr Leyton and Ms Leyton are the parents of [Children 1-4]. Mr Leyton the parent currently liable to pay child support under the administrative assessment. The payment of child support is currently subject to collection by the Services Australia – Child Support (the Department). [Children 1-4] are in the care of Ms Leyton (269 nights) and Mr Leyton (96 nights).
For the periods immediately prior to the departure application, Mr Leyton was assessed to pay child support as follows:
· For the period 19 January 2021 to 31 July 2021, Mr Leyton was assessed to pay the annual rate of child support of $16,408. This was based on Mr Leyton’s 2019–20 adjusted taxable income of $111,082 and Ms Leyton’s 2019–20 adjusted taxable income of $56,310.
· For the period 1 August 2021 to 31 October 2022, Mr Leyton is assessed to pay the annual rate of child support of $16,860. This is based on Mr Leyton`s 2020–21 adjusted taxable income of $108,544 and Ms Leyton`s 2020–21 provisional adjusted taxable income of $42,000.
Ms Leyton applied to the Department for a departure from the administrative assessment on 31 May 2021 on the basis of, in the special circumstances of the case, the costs of educating the children in a particular manner (reason 3).
On 26 September 2021, the Department decided to depart from the administrative assessment and made a departure determination as follows:
· For the period 31 May 2021 to 31 December 2021, the annual rate of child…

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 2058
Decision Date: 27 May 2022

CaseChat Overview and Summary

The case of *Leyton and Leyton (Child Support)* concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988*. The dispute involved the costs of education for the parties' children. The matter was heard by SM J Longo.

The primary legal issue before the court was whether the costs associated with the children's education constituted a ground for departure from the standard child support assessment. Specifically, the court had to determine if these costs were incurred in a manner that was expected by both parents and if they significantly affected the cost of maintaining the children.

SM J Longo found that the costs of the children's education met the criteria for a departure determination. The court reasoned that the educational expenses were incurred in a way that reflected the expectations of both parents and that these expenses had a significant impact on the overall cost of maintaining the children. Consequently, the court concluded that a departure from the assessment was warranted.

The court set aside the previous decision regarding the departure determination and substituted its own decision.

Orders