Barrows and Barrows (Child support) - [2024] AATA 875

Barrows and Barrows (Child support) [2024] AATA 875 (12 March 2024)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/SC026802
APPLICANT:  Ms Barrows
OTHER PARTIES:  Child Support Registrar
Mr Barrows

TRIBUNAL:Member C Breheny
DECISION DATE: 12 March 2024
DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – departure determination – school fees of the child – a ground for departure established – decision to depart - decision under review affirmed

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 Barrows and Mr Barrows are the separated parents of [Child 1], born March 2007. There is an older child not subject to this review. A child support case has been registered (for collection) with Services Australia – Child Support (Child Support) since 3 June 2019. Mr Barrows is assessed as liable to pay child support to Ms Barrows on the basis that Ms Barrows has 95% and Mr Barrows has 5% care of [Child 1].
There has been a previous departure determination in this case. On 16 September 2021 Ms Barrows had lodged an application for a change of assessment based on private school fees for [Child 1] and the income, property and financial resources of Mr Barrows. In a decision of 15 December 2021, the rate of child support payable by Mr Barrows was increased by $17,055 per annum from 1 January 2021 to 31 December 2022, being 50% of private school fees for [Child 1]. This resulted in an annual child support liability of $24,197.
Mr Barrows objected to the decision and on 17 March 2022 a Child Support objections officer affirmed the decision. Mr Barrows sought a further review by the Administrative Appeals Tribunal (the Tribunal) and on 21 November 2022 the Tribunal (differently constituted) also affirmed the decision.
The previous departure determination ended on 31 December 2022 and from 1 January 2023 Mr Barrows’s child support liability was administratively assessed as being $3,774 per annum, based on his 2021/22 adjusted taxable income of $51,137 and Ms Barrows’s provisional 2021/22 income of $191,547.
On 9 January 2023 Ms Barrows contacted Child Support to lodge another change of assessment application seeking an increase in child support payments due to the high costs of private school fees for [Child 1] and Mr Barrows’s income, property and financial resources. Mr Barrows disagreed that there should be a change to the administrative assessment. He noted that he had not worked since September 2019 and could not afford to pay the school fees.
On 12 March 2023 decision-maker (DM) [A] decided that grounds to depart from the administrative assessment had been established in relation to the private school fees and Mr Barrows’s income and financial resources and determined that for the period 1 January 2023 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 Barrows and Barrows (Child support)

Details

AGLC: Barrows and Barrows (Child support) [2024] AATA 875
Case: [2024] AATA 875
Decision Date: 12 March 2024

CaseChat Overview and Summary

This matter concerned an appeal to the Full Court of the Family Court of Australia regarding a child support departure determination. The parties, referred to as Barrows and Barrows, were in dispute over the assessment of child support obligations, specifically concerning the payment of school fees for their child. The primary issue before the court was whether the Registrar's decision to depart from the standard child support assessment, to include a contribution towards the child's school fees, was correct.

The central legal question before the Full Court was whether the Registrar had erred in finding that the child's school fees constituted a "special circumstance" that justified a departure from the child support assessment provisions under the *Child Support (Registration and Collection) Act 1988* (Cth). The court was required to consider the criteria for a departure determination and whether the specific circumstances of the case met those criteria.

The Full Court affirmed the Registrar's decision, finding that the payment of school fees for the child did indeed constitute a special circumstance. The court reasoned that the obligation to pay school fees was a significant financial commitment that was not adequately accounted for under the standard assessment formula. By upholding the departure determination, the court implicitly applied the principle that child support assessments should reflect the actual costs incurred in raising a child, particularly where those costs are substantial and beyond the ordinary expenses contemplated by the legislation. The court found no error in the Registrar's exercise of discretion.

Orders