Cherrill and Cherrill (Child support) - [2023] AATA 2668

Cherrill and Cherrill (Child support) [2023] AATA 2668 (24 July 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2022/BC025145
APPLICANT:  Ms Cherrill
OTHER PARTIES:  Child Support Registrar
Mr Cherrill

REVIEW NUMBER:  2022/BC025172
APPLICANT:  Mr Cherrill
OTHER PARTIES:  Child Support Registrar
Ms Cherrill

TRIBUNAL:Member J Thomson
DECISION DATE: 24 July 2023
DECISION:

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

·      From 1 January 2022 to 31 December 2022 Mr Cherrill’s annual rate of child support payable is increased by $3,085; and
·      From 1 January 2023 to 31 December 2023 Mr Cherrill’s annual rate of child support payable is increased by $3,424; and
·      From 1 January 2024 until a terminating event occurs in relation to [Child 1], Mr Cherrill’s annual rate of child support payable is increased by 50% of the invoiced [School 1] tuition fees for those years.

The Tribunal notes Ms Cherrill should notify the Child Support Registrar within 7 days of receipt of the school fee invoices commencing from 1 January 2024.

CATCHWORDS

CHILD SUPPORT – departure determination – school fees – ground for departure established – 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 omitted 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 Cherrill and Mr Cherrill are the parents of [Child 1], born 2008. The care percentages being recorded for [Child 1] are 100% to Ms Cherrill and 0% to Mr Cherrill.
A child support case has been registered with Services Australia (Child Support) since 5 December 2018, collectable by Child Support from 15 March 2019.
On 6 June 2022, Ms Cherrill applied to Child Support for a change of assessment on the grounds that the costs of maintaining [Child 1] are significantly affected by the costs of educating or training [Child 1] in the manner intended by both parents (the ground commonly referred to as Reason 3).
On 14 July 2022, Mr Cherrill cross-applied for a change of assessment on the grounds that:
·      the administrative assessment of child support is unfair because he has paid or transferred money to Ms Cherrill or another person for the benefit of [Child 1] (the ground commonly referred to as Reason 5);
·      his necessary expenses for self-support significantly reduce his ability to support [Child 1] (the ground commonly referred to as Reason 7); and
·      he has a legal duty to support another person the costs of which significantly reduces his capacity to support [Child 1] (the ground commonly referred to as Reason 9).
The administrative assessment in place at the time of the parent’s respective applications for changes to the assessment referred to above required Mr Cherrill to pay Ms Cherrill child support at the annual rate of $14,993 for the period 1…

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 Cherrill and Cherrill (Child support)

Details

AGLC: Cherrill and Cherrill (Child support) [2023] AATA 2668
Case: [2023] AATA 2668
Decision Date: 24 July 2023

CaseChat Overview and Summary

The case of *Cherrill and Cherrill* concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth). The applicant sought to depart from the child support assessment on the basis of school fees. The matter came before Judicial Officer Thomson M.

The primary legal issue before the court was whether the ground for departure, specifically relating to the cost of school fees, was established. This required the court to consider the relevant provisions of the *Child Support (Registration and Collection) Act 1988* and the criteria for making a departure determination.

Judicial Officer Thomson M found that the ground for departure was established. The court reasoned that the expenditure on school fees was a necessary and significant cost associated with the child's upbringing, and that the existing assessment did not adequately account for this expense. Consequently, the court set aside the original decision and substituted its own determination. The court ordered that the departure determination be made.

Orders