Culver and Culver (Child support) - [2023] AATA 3405

Culver and Culver (Child support) [2023] AATA 3405 (8 September 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/PC025864
APPLICANT:  Mr Culver
OTHER PARTIES:  Child Support Registrar
Ms Culver

TRIBUNAL:Member M Martellotta
DECISION DATE: 08 September 2023
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides to depart from the administrative assessment so that for the period 1 July 2022 to 31 December 2023 Mr Culver’s annual liability is increased by $3,210.

CATCHWORDS

CHILD SUPPORT – departure determination – high costs of child care – 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

Mr Culver and Ms Culver are the parents of two children[1] who are in Ms Culver’s primary care and Mr Culver’s regular care.
[1] Born [date]/8/2013 and [date]/7/2015.
There has been an administrative assessment of child support case in place since 11 January 2020.
On 8 June 2022 Ms Culver applied for a change of assessment. The grounds in her application were Reason 6 and Reason 8A.[2] At the time, the administrative assessment in place was as follows:
For the period 1 September 2021 to 31 October 2022 the assessment was based upon Mr Culver’s 2020/21 adjusted taxable income (ATI) of $166,028 and Ms Culver’s ATI of $85,826
[2] Other grounds relating to special needs were withdrawn.
On 22 August 2022 a Services Australia (Child Support) decision maker decided that no grounds to depart from the administrative assessment had been established. Ms Culver objected to that decision.
On 28 February 2023 a Child Support decision maker concluded that Reason 6 was established and departed from the assessment so that:
For the period 1 July 2022 to 30 November 2024 the annual rate of child support payable by Mr Culver increased by $1,568.
Mr Culver has asked the Tribunal to review the decision.
The parties participated in a telephone directions hearing. The parties complied with directions issued by the Tribunal. On 5 September 2023 the Tribunal held a hearing. Mr Culver and Ms Culver participated by telephone. In addition to their submissions and evidence, the Tribunal (and the parties) had been provided with the following documents, Child Support files (567 pages), documents provided by Mr Culver (A1–A51) and documents provided by Ms Culver (B1–B102).

ISSUES

The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act). Section 98C of the Act, states that a decision to depart from the administrative assessment may be made if the following three requirements are met:
(i)that one, or more than one, of the grounds for departure referred to in subsection 117(2) exists; and
(ii)that it would be:
(A)just and equitable as regards the…

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 Culver and Culver (Child support)

Details

AGLC: Culver and Culver (Child support) [2023] AATA 3405
Case: [2023] AATA 3405
Decision Date: 8 September 2023

CaseChat Overview and Summary

The matter of *Culver and Culver* concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth). The applicant sought to depart from the assessed child support amount due to the high costs of child care. The decision was made by Magistrate M Martellotta.

The primary legal issue before the court was whether the costs incurred by the applicant for child care constituted a "special circumstance" that justified a departure from the standard child support assessment. The court was required to consider if these costs were of such a nature that they ought to be taken into account in determining the child support payable.

Magistrate Martellotta found that the applicant had established the ground for departure. The court reasoned that the significant expenditure on child care, which was necessary for the applicant to maintain employment and thus contribute financially, represented a special circumstance. The principle applied was that child support assessments should reflect the actual financial realities and needs of the parties and the child, particularly where exceptional costs arise. The court set aside the original assessment and substituted a new determination that took into account the high child care expenses.

Orders