Ahmad and Chalmers (Child support) - [2020] AATA 5101

Ahmad and Chalmers (Child support) [2020] AATA 5101 (28 October 2020)

DIVISION: Social Services & Child Support Division

REVIEW NUMBER: 2020/AC019382
APPLICANT: Ms Ahmad

OTHER PARTIES: Mr Chalmers

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 annual rate of child support payable by Mr Chalmers is fixed at $7,250 for the period from 1 January 2020 to 31 December 2022.

CATCHWORDS

CHILD SUPPORT – departure determination – costs of education – manner expected by both parents – cost of maintaining the child are significantly affected – a ground for departure established – financial resources of both parents – just and equitable 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 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 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 one child, now aged 11.
The case was registered on 3 June 2009 and has been Registrar Collect since 6 March 2017.
Ms Ahmad has had sole care of the child since 10 January 2019.[1]
[1] C224
On 31 December 2019 Ms Ahmad lodged a change of assessment (“COA”) application.
On 13 March 2020 a delegate made a departure determination adding various amounts under Reason 3 (school fees) to the administrative assessments of child support for the period from 1 July 2018 to the end of the case (7 May 2027).
On 18 April 2020 Mr Chalmers lodged an objection.
On 30 June 2020 an objections officer “part allowed” the objection of Mr Chalmers and added similar amounts to the administrative assessment of child support, but for the more limited period from 1 January 2019 to 31 December 2021.
The resulting annual rate of child support is now $7,201 pa.[2]
[2] C260
On 3 July 2020 Ms Ahmad applied for further review by this Tribunal of the objection decision.

DOCUMENTARY EVIDENCE AND HEARING

The Tribunal had before it the original bundle of documents provided by the CSA. These documents are referred to as C1 to C251.
Supplementary documents from the CSA were marked C252 onwards.
Directions were made by the Tribunal concerning the production of further documents by the parents.
Documents received from Ms Ahmad were marked A1 to A12 and documents received from Mr Chalmers were marked B1 to B48.
Mr Chalmers and Ms Ahmad both attended the hearing via teleconference.

CONSIDERATION

The relevant law

16.Section 3 of the Child Support (Assessment) Act1989 (“the Act”) sets out the legal duty of parents to maintain children, as follows:
Duty of parents to…

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.

Continue reading Ahmad and Chalmers (Child support)

Details

AGLC: Ahmad and Chalmers (Child support) [2020] AATA 5101
Case: [2020] AATA 5101
Decision Date: 28 October 2020

CaseChat Overview and Summary

This matter concerned an appeal by the father, Mr. Ahmad, against a decision of the Child Support Registrar regarding child support payments. The dispute centred on whether the costs of the child's education constituted a ground for departure from the standard child support assessment. The mother, Ms. Chalmers, sought to have the costs of the child's private school education recognised as a reason to depart from the assessed amount. The appeal was heard by Magistrate S Cullimore.

The primary legal issue before the court was whether the costs associated with the child's education were of a nature that would significantly affect the child's or a parent's ability to maintain the child, and whether it was otherwise just and equitable to depart from the assessment. Specifically, the court had to determine if the educational expenses were a "relevant ground" for departure under the *Child Support (Registration and Collection) Act 1988* (Cth), and if so, whether the financial circumstances of both parents warranted an adjustment to the child support assessment.

Magistrate Cullimore reasoned that the costs of private education, when they are a manner expected by both parents, can indeed be a ground for departure if they significantly affect the cost of maintaining the child. The court considered the financial resources of both Mr. Ahmad and Ms. Chalmers. Applying the principles of the Act, the Magistrate found that the educational expenses were a significant factor impacting the cost of maintaining the child and that it was just and equitable to depart from the standard assessment.

Consequently, the decision under review was set aside and substituted with a new determination that took into account the costs of the child's education.

Orders