Drohan and Murrell (Child support) - [2024] AATA 2902

Drohan and Murrell (Child support) [2024] AATA 2902 (29 May 2024)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/SC026978
APPLICANT:  Ms Drohan
OTHER PARTIES:  Child Support Registrar
Mr Murrell

TRIBUNAL:Senior Member K Dordevic
DECISION DATE: 29 May 2024
DECISION:

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

·     Mr Murrell’s annual rate of child support is increased by $3,850 for the period 20 April 2023 to 19 April 2024;
·     Mr Murrell’s adjusted taxable income is varied to:
o   $82,524 for the period 20 April 2023 to 31 December 2023;
o   $85,389 for the period 1 January 2024 to 31 December 2024;
o   an adjusted taxable income of $85,389, inflated by the September 2024 Sydney consumer price index is to be applied to the administrative assessment from 1 January 2025 to 31 December 2025; and
o   the adjusted taxable income that applied to the administrative assessment from 1 January 2025 to 31 December 2025, inflated by the September 2025 Sydney consumer price index is to be applied to the administrative assessment from 1 January 2026 to 31 December 2026.

CATCHWORDS
CHILD SUPPORT – departure determination – ground for departure – special needs of the child – orthodontic expenses – just and equitable – earning capacity – income and financial resources – male total average weekly earnings (MTAWE) – 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

The Child Support (Assessment) Act 1989 (the Act) provides for an administrative assessment of the child support payable. It uses a formula which contains variables such as the parents’ adjusted taxable incomes and their percentages of care of the children. The Act also provides for a departure from the administrative assessment in certain circumstances.
Ms Drohan (the mother) and Mr Murrell (the father) are the parents of three children, [Child 1] (born [date]), [Child 2] (born [date]) and [Child 3] (born [date]).
This case was first registered with Services Australia – Child Support (Child Support) on 8 September 2014 and has been collected by Child Support from 12 March 2018. For the purposes of the Child Support assessment the children are recorded as being in the mother’s 80% care and the father’s 20% care, though the Tribunal understands that a recent care change was reported to Child Support and awaits determination.
The mother lodged a departure application on 20 April 2023 seeking a review of the father’s income, property, financial resources and earning capacity. On 31 May 2023 she amended her application to also seek a contribution from the father in respect of the older child’s orthodontic treatment.
On 30 July 2023 a senior case officer determined that for the period 20 May 2023 to 19…

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 Drohan and Murrell (Child support)

Details

AGLC: Drohan and Murrell (Child support) [2024] AATA 2902
Case: [2024] AATA 2902
Decision Date: 29 May 2024

CaseChat Overview and Summary

This matter concerned an application by the father, Mr. Drohan, to set aside a departure determination made by the Registrar of the Child Support Agency. The Registrar had previously determined that the mother, Ms. Murrell, was entitled to a departure from the standard child support assessment, specifically to account for the special needs of the child, namely significant orthodontic expenses. The father sought to have this determination reviewed by the Child Support Assessment Review Board.

The primary legal issue before the Board was whether the Registrar's decision to depart from the formula assessment was justified. This required the Board to consider whether the child had special needs that were not covered by the standard assessment, and if so, whether it would be just and equitable to make a departure. The Board also had to consider the earning capacity and income of both parents in determining the appropriate level of child support.

The Board found that the child did indeed have special needs due to the significant orthodontic treatment required, which was not adequately addressed by the standard assessment. Applying the principles of the *Child Support (Registration and Collection) Act 1988*, the Board determined that it was just and equitable to depart from the formula assessment to ensure the child's needs were met. The Board considered the financial circumstances of both parties, including their respective incomes and earning capacities, to arrive at a fair revised assessment.

The Board set aside the Registrar's departure determination and substituted its own, ordering a revised child support payment from the father to the mother.

Orders