Burch and Burch (Child support) - [2019] AATA 4863

Burch and Burch (Child support) [2019] AATA 4863 (30 August 2019)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2019/MC015958
APPLICANT:  Mr Burch
OTHER PARTIES:  Child Support Registrar
Ms Burch

TRIBUNAL:Member R Anderson
DECISION DATE: 30 August 2019
DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that:

·     In respect of the period 5 July 2018 to 30 November 2018, the annual rate of child support payable by Mr Burch is varied to $24,276;
·     in respect of the period 1 December 2018 to 30 June 2019, the annual rate of child support payable by Mr Burch is varied to $24,230;
·     in respect of the period 1 July 2019 to 15 November 2019, the annual rate of child support payable by Mr Burch is varied to $12,000;
·     in respect of the period 16 November 2019 to 31 December 2019, the annual rate of child support payable by Mr Burch is varied to $7,500; and
·     the child support liability payable by Mr Burch is to increase by $878, or $2,322 per annum in respect of the period 1 July 2019 to 15 November 2019.

CATCHWORDS

CHILD SUPPORT – departure determination – costs of education – manner expected by both parents – cost of maintaining the children are significantly affected – financial resources of both parents – 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

Mr Burch and Ms Burch are the parents of [Child 1] and [Child 2]. According to records of the Department of Human Services – Child Support (the Department), the child support assessment was registered on 20 February 2012. The Department has been responsible for the collection of child support from Mr Burch since 5 October 2018.
The child support liability is generally calculated in accordance with the administrative assessment, as provided in the Child Support (Assessment) Act 1989 (the Act). The calculation is based on the income recorded by each parent in their most recently completed tax returns, as lodged with the Australian Taxation Office (ATO), or the most recent estimate accepted by the Department. It is open to either parent to lodge an application for a departure from the administrative assessment under Part 6A of the Act if they consider the administrative assessment results in an unfair amount of child support payable by one parent.
On 28 May 2018, the Department accepted an estimate lodged by Mr Burch in respect of his income from 1 July 2018 to 30 June 2019 of $5,000. This resulted in his annual child support liability reducing from $24,276 to $2,780. As a result, Ms Burch lodged a change of assessment application on 26 June 2018. Her application was lodged on…

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 Burch and Burch (Child support)

Details

AGLC: Burch and Burch (Child support) [2019] AATA 4863
Case: [2019] AATA 4863
Decision Date: 30 August 2019

CaseChat Overview and Summary

This matter concerned an appeal by the father against a departure determination made by the Child Support Registrar. The dispute centred on whether the costs of the children's private school education should be considered in the child support assessment, and if so, to what extent. The appeal was heard by R Anderson M in the [Court Name].

The primary legal issue before the court was whether the Registrar had erred in making the departure determination. Specifically, the court had to consider whether the costs of the children's education at a private school were a manner expected by both parents, and whether these costs significantly affected the costs of maintaining the children. Furthermore, the court was required to assess whether the financial resources of both parents had been adequately considered in the original determination.

R Anderson M reasoned that the Registrar's decision to depart from the usual assessment formula was not justified. The court found that while the children attended private school, there was insufficient evidence to establish that this was a manner expected by *both* parents. The court emphasised that for a departure determination to be made on this ground, there must be a clear and shared expectation between the parents regarding the specific educational choices and their associated costs. The court also noted that the financial resources of both parents were not sufficiently taken into account when considering the impact of these educational expenses.

Consequently, R Anderson M set aside the original departure determination and substituted it with a new decision that did not include the private school education costs in the child support assessment.

Orders