Earnshaw and Thornhill (Child support) - [2022] AATA 1174

Earnshaw and Thornhill (Child support) [2022] AATA 1174 (17 March 2022)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2021/PC022502
APPLICANT:  Ms Earnshaw
OTHER PARTIES:  Child Support Registrar
Mr Thornhill

TRIBUNAL:Member M Martellotta
DECISION DATE: 17 March 2022
DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – departure determination – costs of education - manner expected by both parents - cost of maintaining the children are significantly affected – decision to depart - decision under review affirmed

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

Ms Earnshaw and Mr Thornhill are the parents of two children.[1] The parents each have care of the eldest child and the applicant has above primary care of the youngest. Mr Thornhill is the parent liable to pay child support.
[1] Born [in] October 2007 and [July] 2005
On 26 May 2021 Ms Earnshaw lodged a change of assessment application with the Department of Human Services – Child Support (the Agency). Her grounds included:
·Reason 2 – the children have special needs.
·Reason 3 – costs of caring for, educating or training the children in a manner intended by the parents.
·Reason 5 – Ms Earnshaw has provided money, goods or property for the children’s benefit.
·Reason 8A – that the assessment does not reflect Mr Thornhill’s income, property and financial resources.
At the time of the application the administrative assessment in place was as follows:
·For the period 7 May 2021 to 6 August 2022 the annual rate of child support was $4,617 based on Mr Thornhill’s 2019/20 adjusted taxable income (ATI) of $107,380 and Ms Earnshaw’s 2019/20 ATI of $238,168
An Agency decision maker decided that only reason 3 was established and made a departure determination so that for the period 7 May 2021 to 31 December 2021 the annual rate of child support payable by Mr Thornhill is increased by $2,413 per annum. Ms Earnshaw objected to that decision. An Agency objections officer affirmed the original decision on 29 September 2021.
Ms Earnshaw applied for review of the decision by the tribunal. The tribunal convened a telephone direction hearing and issued directions. Ms Earnshaw and Mr Thornhill attended a hearing on 17 March 2022. They provided evidence on affirmation. The Agency provided 377 pages of documents. Ms Earnshaw provided documents A1–A30. Mr Thornhill provided documents B1–B47.

ISSUES

The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act).
Child support legislation is interpreted by the Agency with the aid of the Child Support Guide (the Guide). The tribunal is not bound by law to apply the policy as set out in the Guide but provided the policy is consistent with the legislation, it is required to have regard…

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: [2022] AATA 1174
Decision Date: 17 March 2022

CaseChat Overview and Summary

The case of *Earnshaw and Thornhill* concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth). The applicant sought to depart from the formula assessment of child support to account for the costs of the children's education. The Magistrate, M Martellotta, presided over the matter.

The central legal issue before the court was whether the costs of the children's education were of such a nature that they significantly affected the parents' capacity to maintain the children, thereby justifying a departure from the standard child support assessment. Specifically, the court had to determine if the manner in which both parents expected the children to be educated was a relevant factor in assessing whether the costs were exceptional.

The Magistrate reasoned that the costs associated with the children's education were a significant factor impacting the parents' capacity to maintain them. The court considered the expectations of both parents regarding the children's schooling and concluded that these expectations, when translated into financial commitments, warranted a departure from the formula assessment. The principle applied was that child support assessments should reflect the actual costs incurred and expected by parents in maintaining their children, particularly in relation to significant expenses like education.

The court affirmed the decision to depart from the formula assessment, finding that the criteria for a departure determination had been met.

Orders