Stewart and Stewart (Child support) - [2020] AATA 5124

Stewart and Stewart (Child support) [2020] AATA 5124 (28 October 2020)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER: 2020/SC018642
APPLICANT: Mr Stewart

OTHER PARTIES: Ms Stewart

Child Support Registrar

TRIBUNAL: Member S Cullimore

DECISION DATE: 28 October 2020

DECISION:

The decision under review is set aside and the Tribunal substitutes a new departure determination as follows:

The previous AAT decision of 26 March 2019 should remain in place until 31 March 2020; and
The annual rate of child support payable by Mr Stewart is fixed at $8,000 for the period from 1 April 2020 to 12 February 2024.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of both parents – a ground for departure established based on the incomes of the liable parent – previous departure decision by this Tribunal – change in circumstances – decision to depart – period of departure – 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 following background matters are drawn from the files of the Child Support Agency (“the CSA”) and are not in dispute.
The child support case between the parents is for two children, now aged 9 and 7.
The case was registered on 15 May 2018 and has been Registrar Collect since that date.
Care of the children is recorded as 62% to Ms Stewart and 38% to Mr Stewart since 3 August 2019.[1]
[1] C103. This care determination, made 4 December 2019 by the CSA, was affirmed by an objections officer and by AAT1 and is now under appeal to AAT2.
On 4 June 2018 Ms Stewart lodged a change of assessment (“COA”) application.
On 26 March 2019 the AAT (Member M Douglas) made a departure determination fixing the adjusted taxable income (“ATI”) of Mr Stewart at $102,000 pa and the ATI of Ms Stewart at $84,000 pa for the period from 15 May 2018 to 31 March 2020.[2]
[2] C47
On 25 November 2019 Mr Stewart lodged a further COA application.
On 15 January 2020 a delegate made a further departure determination fixing the ATI of Mr Stewart at $108,060 pa and the ATI of Ms Stewart at $84,000 pa, for different periods, both ending on 31 October 2021.[3]
[3] C198
Mr Stewart objected.
On 11 March 2020 an objections officer “part allowed” the objection of Mr Stewart and fixed the ATI of Mr Stewart at $101,444 pa and the ATI of Ms Stewart at $84,000 pa, both for the period from 25 November 2019 to 31 October 2021.[4]
[4] C10
The resulting annual rate of child support is now $7,432.[5]
[5] C463
On 2 April 2020 Mr Stewart applied for further review by this Tribunal of the objection decision.

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: [2020] AATA 5124
Decision Date: 28 October 2020

CaseChat Overview and Summary

The matter of *Stewart and Stewart (Child Support)* concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth). The applicant sought to vary a previous departure determination made by the Tribunal, alleging a change in circumstances. The dispute centred on the income, property, and financial resources of both parents, with a specific focus on the income of the liable parent as a potential ground for departure.

The Tribunal was required to determine whether a change in circumstances had occurred since the previous departure decision, and if so, whether those changed circumstances warranted a further departure from the child support assessment. The core legal issue was whether the current financial positions of the parties met the criteria for a departure determination, particularly in light of the liable parent's income.

The Tribunal considered the evidence presented regarding the financial circumstances of both parents. It found that a significant change in circumstances had indeed occurred, primarily relating to the income of the liable parent. Applying the principles for departure determinations, the Tribunal concluded that the existing child support assessment was no longer fair and appropriate given the altered financial landscape. Consequently, the Tribunal set aside the previous departure decision and substituted it with a new determination, specifying the period for which the departure would apply.

Orders