Dalton and Norwood (Child support) - [2024] AATA 797

Dalton and Norwood (Child support) [2024] AATA 797 (8 March 2024)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/SC026563
APPLICANT:  Ms Dalton
OTHER PARTIES:  Child Support Registrar
Mr Norwood

TRIBUNAL:Member F Staden
DECISION DATE: 8 March 2024
DECISION:

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

For the period 4 August 2022 to 3 August 2023, Mr Norwood’s annual child support liability is increased by $16,942; and
For the period 4 August 2023 to 31 December 2025, Mr Norwood’s annual child support liability is increased by $7,424.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the parents – costs of the child’s orthodontic treatment and higher level athletics participation - ground for departure established – decision to depart - 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

Ms Dalton and Mr Norwood are the separated parents of [Child 1], born 2011. There has been a child support assessment for this case from 10 October 2013. Mr Norwood is the parent liable to pay child support. Ms Dalton opted for collection of child support by Services Australia – Child Support (Child Support) from 27 May 2022.
There has been no previous change of assessment decision in this case. There is a relevant care percentage decision; it was this decision which prompted Ms Dalton to lodge a change of assessment application.
Prior to a 26 May 2022 care change notification by Mr Norwood, the parents’ care percentages for [Child 1] were 72% for Ms Dalton and 28% for Mr Norwood. Following a 4 August 2022 original decision and a 5 October 2022 objections officer decision and allowing for the date of effect rules following a late notification, the following care percentages are relevantly used in the assessment for [Child 1]:
· From 1 July 2019 to 25 May 2022, Ms Dalton’s care percentage is 58% and that of Mr Norwood 27%; and
· From 26 May 2022, Ms Dalton’s care percentage is 58% and that of Mr Norwood 42%.
Where care of the children is shared, each parent is assessed as having a child support liability to the other, with the lower rate being subtracted from the higher and the parent with the amount remaining is the parent with a child support liability.
On 14 November 2022, Ms Dalton applied for a change of assessment on the basis that the costs of maintaining [Child 1] were significantly affected by: the costs associated with meeting [Child 1]’s special needs, specifically her orthodontic treatment costs (orthodontic costs) (Reason 2); the costs of caring for, educating or training [Child 1] in the way both parents expected, specifically the costs of [Child 1]’s…

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: [2024] AATA 797
Decision Date: 8 March 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application by the father, Dalton, for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth) concerning child support payments payable to the mother, Norwood. The dispute centred on whether the costs associated with the child's orthodontic treatment and participation in higher-level athletics constituted a ground for departure from the usual child support assessment.

The primary legal issue before the Tribunal was whether the child's necessary expenses for orthodontic treatment and higher-level athletics participation were of such a nature that they justified a departure from the standard child support assessment. This required the Tribunal to consider the specific provisions of the *Child Support (Registration and Collection) Act 1988* that permit departures from assessed amounts, focusing on whether these particular expenses fell within the grounds for such a departure.

The Tribunal found that the child's orthodontic treatment was a necessary expense, and the costs associated with higher-level athletics, while not strictly essential, were significant and contributed to the child's well-being and development. Applying the principles for departure determinations, the Tribunal concluded that the combined impact of these expenses was such that the existing assessment did not make adequate or proper provision for the child. Consequently, the Tribunal set aside the original decision and substituted its own, allowing for a departure from the standard assessment to account for these specific costs.

Orders