Cowie and Brelsford (Child support) - [2019] AATA 258

Cowie and Brelsford (Child support) [2019] AATA 258 (11 January 2019)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2018/AC014641
APPLICANT:  Mr Cowie
OTHER PARTIES:  Child Support Registrar
Ms Brelsford

TRIBUNAL:Member K Millar
DECISION DATE: 11 January 2019
DECISION:

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

·     For the period 1 January 2018 to 31 December 2018:
o   $7,520 is added to the costs of the child for [Child 1]; and
o   $5,319 is added to the costs of the child for [Child 2].
o   The resulting annual rate of child support is increased by $560 per annum

·     For the period 1 January 2019 to 31 December 2019:
o   $7,750 is added to the costs of the child for [Child 1]; and
o   $7,165 is added to the costs of the child for [Child 2]
o   The resulting annual rate of child support is increased by $560 per annum.

CATCHWORDS

CHILD SUPPORT – departure determination – costs of education - manner expected by both parents - cost of maintaining the children are significantly affected – costs relating to special needs of the child - financial resources of both parents - decision to make a departure determination - 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 Cowie and Ms Brelsford are the parents of [Child 1] who is 16 years of age and [Child 2] who is 14 years of age. The children are in the care of Ms Brelsford 100% of the time.
On 2 January 2018 Ms Brelsford applied for an increase to the amount of child support Mr Cowie pays due to the costs of educating the children, who are currently attending [School 1].
To increase the child support paid by Mr Cowie on the basis of the school fees, it must be established that the costs of supporting the children are significantly affected because the children are being educated in the manner expected by their parents.
Mr Cowie does not agree there should be any increase to the amount of child support he pays. He states the children attend [School 1] on the basis that Ms Brelsford pays the fees for this school, and submits that this is reflected in the consent orders of the Federal Circuit Court dated [August] 2012.
A senior case officer declined to change the assessment of child support, and Ms Brelsford objected to this decision. The objections officer allowed Ms Brelsford’s objection to this decision and found there was a ground to depart from the administrative assessment on the basis of the school fees. The objections officer increased the amount of child support Mr Cowie pays by $6,747 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.

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Details

Case: [2019] AATA 258
Decision Date: 11 January 2019

CaseChat Overview and Summary

The case of *Cowie and Brelsford (Child support)* concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth). The primary dispute revolved around whether the costs of a child's education and the costs associated with the child's special needs significantly affected the parents' financial circumstances, thereby warranting a departure from the standard child support assessment. The matter was heard by Member K Millar.

The court was required to determine whether the criteria for a departure determination were met. Specifically, it needed to assess if the costs of the child's education and special needs were of a nature that would have been expected by both parents had they been together, and if these costs significantly affected the financial resources of either parent. The court also had to consider the overall financial positions of both parents in making its determination.

Member Millar reasoned that the evidence presented demonstrated that the costs associated with the child's education and special needs were substantial and had a significant impact on the parents' financial resources. The court applied the principles outlined in the *Child Support (Registration and Collection) Act 1988* concerning departure from assessment, focusing on the nature of the expenses and their effect on the parents' capacity to meet their financial obligations. The court found that the circumstances justified a departure from the standard assessment.

The decision to make a departure determination was upheld. The original decision under review was set aside and substituted with a new determination that reflected the significant costs associated with the child's education and special needs, taking into account the financial resources of both parents.

Orders