Ashby and Rendell (Child support) - [2024] ARTA 211

Ashby and Rendell (Child support) [2024] ARTA 211 (24 October 2024)

Applicant/s: Miss Ashby

Respondent: Child Support Registrar

Other Parties: Mr Rendell

Tribunal Number: 2024/HC027955
Tribunal: Member A Byers
Place:Brisbane
Date:24 October 2024

Decision:The Tribunal varies the decision under review to the decision that Mr Rendell’s annual rate of child support is reduced from 5 September 2023 until the child [Child 1] ceases to be an eligible child in accordance with paragraph 49 of these Reasons.

CATCHWORDS
CHILD SUPPORT – departure determination – costs of private schooling – mother’s expectation of private education, or no preference and passive acquiescence – joint attendance at school presentations and enrolment applications – mother a part-time student living off savings – parties’ share of property settlement – costs of mother’s culturally important visits to family – decision under review varied

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 pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.

Statement of Reasons

BACKGROUND

For child support purposes Mr Rendell is the parent liable to pay child support to Miss Ashby for their children [Child 1] (born March 2008) and [Child 2] (born July 2016). The parties separated in May 2021 and a child support case has been registered since June 2021. Each party has 50% care of the children.
On 5 September 2023 Mr Rendell lodged an application with Child Support seeking a change of assessment. Although several grounds were cited, ultimately the concern is Reason 3 in relation to the children’s private schooling costs. Prior to Mr Rendell’s application he was covering the tuition fees and compulsory school levies and this remains the case.
According to Child Support records, at the time of Mr Rendell’s application his child support liability of $14,324 per annum was assessed under Part 5 of the Child Support (Assessment) Act 1989.[1] This assessment used an adjusted taxable income for Mr Rendell of $141,763 for the 2020/21 income year and Miss Ashby’s estimate for 2023/24 of $0.
[1] All further legislative references are to this Act.
On 20 October 2023 a Child Support officer made a departure determination. The officer decided that Reason 3 applied and concluded Miss Ashby should contribute to half the children’s combined school fees. The officer decided accordingly that the child support otherwise payable by Mr Rendell under Part 5 should be reduced by $2,999 per annum from 5 September 2023 to 31 December 2027.
Miss Ashby objected to this decision on 20 November 2023. Miss Ashby’s reason for objecting was essentially that she could not afford to pay school fees as she was a part-time student living off her savings.
On 26 April 2024 the objections officer agreed that Reason 3, was established. The objections officer varied the decision under review to the decision that the child support otherwise payable by Mr Rendell should be reduced by $2,999…

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 Ashby and Rendell (Child support)

Details

AGLC: Ashby and Rendell (Child support) [2024] ARTA 211
Case: [2024] ARTA 211
Decision Date: 24 October 2024

CaseChat Overview and Summary

The case of Ashby and Rendell involved a dispute regarding child support payments, specifically focusing on the costs associated with the private education of their two children. The applicant, Miss Ashby, contested a decision by the Child Support Registrar that required her to contribute to half of the children's private schooling fees. The case was reviewed by the Administrative Appeals Tribunal (AAT) and ultimately decided on 24 October 2024.

The primary legal issues addressed were whether there were valid grounds for a departure from the standard child support assessment under Reason 3 of the Child Support (Assessment) Act 1989, and whether such a departure was just and equitable given the parties' respective financial circumstances. The court examined whether Miss Ashby had an expectation that the children would be privately educated, and if so, whether it was fair for her to contribute to the costs given her current financial situation.

The Tribunal found that there were indeed grounds for departure under Reason 3, as both parents had a mutual expectation that the children would attend private school, evidenced by their joint enrolment in private institutions. However, considering Miss Ashby's financial resources, the Tribunal concluded that it was just and equitable for her to contribute equally to the private schooling costs. Despite Miss Ashby's lack of current income, the Tribunal considered her substantial financial resources from the property settlement and her ability to manage her expenses, including culturally important trips, without compromising the children's education needs.

The Tribunal varied the decision under review, setting a reduced annual rate of child support payable by Mr Rendell from 5 September 2023 until the child [Child 1] ceases to be an eligible child in 2026, adjusted for inflation as outlined in the reasons. The decision ensured a balanced approach, recognising both parents' obligations and financial capacities under the child support legislation.

Orders