Dawber and Dawber (Child support) - [2022] AATA 2102

Dawber and Dawber (Child support) [2022] AATA 2102 (28 April 2022)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2021/PC022399
APPLICANT:  Mr Dawber
OTHER PARTIES:  Child Support Registrar
Ms Dawber

TRIBUNAL:Senior Member R Ellis
DECISION DATE: 28 April 2022
DECISION:

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

for the period from 20 January 2020 to 31 December 2020 the annual rate of child support payable by Mr Dawber is reduced by $7,880; and
for the period from 1 January 2021 to 29 August 2021 the annual rate of child support payable by Mr Dawber is reduced by $2,055.

CATCHWORDS

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

This review is about whether or not there should be a departure from the administrative assessment of child support.
Mr Dawber and Ms Dawber are the parents of [Child 1] (born February 2004) and [Child 2] (born April 2008). There has been a child support assessment in place since 25 March 2019 and Mr Dawber is the liable parent under the assessment.
The following administrative assessment is under consideration:
· for the period from 1 November 2019 to 31 January 2021 Mr Dawber was assessed to pay an annual rate of $12,852 based on a 2018–19 adjusted taxable income of $152,703 for Mr Dawber and a 2018–19 adjusted taxable income of $122,969 for Ms Dawber.
On 20 January 2020 Mr Dawber applied to the Child Support Agency for a change to the assessment on the basis of the costs of caring for, educating or training the children (the ground commonly known as Reason 3), money, goods, or property received by the child, the payee or a third person (Reason 5) and his legal duty to support another person (Reason 9). Mr Dawber subsequently withdrew Reasons 5 and 9 from his application.
On 17 April 2020 the Child Support Agency made the decision to change the assessment (the original decision) so that:
· for the period from 20 January 2020 to 31 December 2021 and only at such times as [Child 1] is enrolled and attending [College 1], the annual rate of child support payable by Mr Dawber is reduced by $3,357 representing Ms Dawber’s contribution to [Child 1’s] education costs; and
· for the period from 20 January 2020 to 31 December 2021, the annual rate of child support payable by Mr Dawber is further reduced by $5,097 as to Ms Dawber’s contribution to [Child 2’s] costs to attend [College…

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 Dawber and Dawber (Child support)

Details

AGLC: Dawber and Dawber (Child support) [2022] AATA 2102
Case: [2022] AATA 2102
Decision Date: 28 April 2022

CaseChat Overview and Summary

This matter concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth) brought by the applicant parent, Ms. Dawber, against the respondent parent, Mr. Dawber. The dispute centred on whether the costs associated with the children's education constituted a ground for departure from the assessed child support amount.

The primary legal issue before the court was whether the costs of the children's education were of such a nature that they significantly affected the capacity of either parent to support the children, thereby establishing a ground for departure under section 117(2)(a)(i) of the Act. The court was required to determine if the manner in which the parents expected the children to be educated was a significant factor in the cost of maintaining the children.

Senior Member R Ellis found that the evidence established that the costs of the children's education were significant and that these costs were directly related to the manner in which both parents expected the children to be educated. Consequently, the court determined that a ground for departure was established. The Senior Member concluded that it was appropriate to depart from the assessment.

The Senior Member set aside the original decision and substituted it with a new decision to depart from the assessment.

Orders