Alford and Alford (Child support) - [2018] AATA 4155

Alford and Alford (Child support) [2018] AATA 4155 (24 September 2018)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2018/BC014164
APPLICANT:  Ms Alford
OTHER PARTIES:  Child Support Registrar
Mr Alford

TRIBUNAL:Member S Letch
DECISION DATE: 24 September 2018
DECISION:

The Tribunal varies the decision under review and decides that:

(a)    a sum of $5,395 be added to Mr Alford’s child support liability for the period 4 September 2017 to 31 December 2017;
(b)    for the period 1 January 2018 to 31 December 2018, Mr Alford’s annual child support liability is increased by $23,405;
(c)    for the period 1 January 2019 to 31 December 2019, Mr Alford’s annual child support liability is increased by $18,643.

CATCHWORDS
CHILD SUPPORT – departure determination – costs of education – manner expected by both parents – ground for departure exists – 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 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

Ms Alford and Mr Alford are the parents of [Child 1] (who turned 18 years of age on 1 November 2017), [and other named children]. Ms Alford is recorded by the Department of Human Services (the Department) as having 100% care of the children. Ms Alford has sought review by this Tribunal of a decision of the Department on her objection to increase Mr Alford’s child support liability by requiring he contribute 25% (and not 50% or more as urged by Ms Alford) of the total private school fees.
For the period 1 November 2017 to 30 November 2018, Mr Alford is assessed to pay an annual rate of child support of $38,876. This assessment is based on a 2016/17 adjusted taxable income of $202,226 for Mr Alford and a 2016/17 adjusted taxable income of $63,476 for Ms Alford.
On 4 September 2017, Ms Alford applied for a change of assessment under what the Department refers to as reason 3. On 17 January 2018, the Department made a decision to increase Mr Alford’s annual child support liability by $10,950 for the period 1 January 2018 to 31 December 2018 on the basis of the cost of private school fees.
On 15 February 2018, Ms Alford objected to the decision. On 26 April 2018, an objections officer decided to disallow Ms Alford’s objection.
On 24 May 2018, Mr Alford sought further review by the Tribunal. The Tribunal’s hearing took place on 19 September 2018. Ms Alford attended the hearing in person, accompanied by her legal representative, [Ms A]. Mr Alford participated by conference telephone, accompanied by [Mr A].
In reaching its decision, the Tribunal has considered the sworn evidence given by both parties; the documentation provided by the Department (Exhibit 1), and materials from Ms Alford (Exhibit A) and Mr Alford…

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: [2018] AATA 4155
Decision Date: 24 September 2018

CaseChat Overview and Summary

This matter concerned an appeal by the father, Mr. Alford, against a decision of the Child Support Registrar regarding child support payments. The dispute centred on whether the costs of the parties' child's private school education should be considered a "relevant material circumstance" for the purposes of a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth). The case was heard by Member S Letch in the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the Registrar had erred in refusing to depart from the assessment of child support. Specifically, the Tribunal had to determine if the costs associated with the child’s private education constituted a ground for departure, as contemplated by section 117 of the *Child Support (Registration and Collection) Act 1988* (Cth), which allows for departure from a child support assessment in certain circumstances. The Tribunal was required to consider whether the manner in which the child was being educated was expected by both parents.

Member Letch reasoned that the Registrar had failed to adequately consider the evidence presented regarding the parents' mutual expectation that the child would attend private school. The Tribunal found that this expectation, coupled with the significant costs involved, constituted a relevant material circumstance that warranted a departure from the standard assessment. The legal principle applied was that the costs of education, when they reflect the shared expectations of both parents, can be a valid ground for adjusting child support obligations under the Act.

Consequently, the Tribunal set aside the Registrar's decision and substituted its own. The Tribunal ordered a departure from the assessment, reflecting the costs associated with the child's private school education.

Orders