Eaton and Daniels (Child support) - [2019] AATA 5108

Eaton and Daniels (Child support) [2019] AATA 5108 (9 October 2019)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2019/PC016061
APPLICANT:  Mr Eaton
OTHER PARTIES:  Child Support Registrar
Ms Daniels

TRIBUNAL:Member M Martellotta
DECISION DATE: 09 October 2019
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 – a ground for departure established - financial resources of the liable parent – not just and equitable to depart – decision not 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 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

Mr Eaton and Ms Daniels are the parents of a child born 25 October 2000.[1] The child was recorded as being in Mr Eaton’s above primary care. Ms Daniels was the parent liable to pay child support. This review is about whether there should be a departure from the administrative assessment of child support.
[1] The assessment ended on 6 December 2018.
On 9 August 2018 Mr Eaton made a change of assessment application on the basis of reason 3 which relates in this case specifically to the private education costs of the child. At the time, the assessment in place provided that:
·For the period 1 October 2017 to 31 July 2018 the annual rate of child support was $1,257 based upon the 2016/17 adjusted taxable income (ATI) of $31,363 for Ms Daniels and the 2016/17 ATI of $148,574 for Mr Eaton.
·For the period 1 August 2018 to 6 December 2018 the annual rate of child support was $427, based upon a 2017/18 ATI of $22,031 for Ms Daniels and a 2017/18 ATI of $139,130 for Mr Eaton.
The Department of Human Services – Child Support (the Department) decided on 14 November 2018 that the ground for departure was established but it was not just and equitable to depart from the administrative assessment.
Mr Eaton’s objection to that decision was disallowed on 6 February 2019. Mr Eaton then sought independent review by the tribunal. A telephone directions hearing was conducted on 9 August 2019 with Mr Eaton and Ms Daniels both in attendance by telephone conference. Directions were issued.
A hearing was held on 9 October 2019. Mr Eaton attended by telephone conference and gave evidence under affirmation. Ms Daniels did not attend the hearing.[2] The tribunal had before it documents provided by the Department (148 pages) and documents provided by Mr Eaton (A1–A14).

ISSUES

[2] In effect Ms [Daniels] did not participate in the proceedings following the telephone directions hearing, she did not respond to the Directions and could not be contacted on the date and time allocated for hearing.

The statutory provisions relevant…

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: [2019] AATA 5108
Decision Date: 9 October 2019

CaseChat Overview and Summary

The case of *Eaton and Daniels* 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 increase the amount payable by the respondent, primarily on the grounds of the costs associated with the children's education. The matter came before the court for review of a previous decision.

The central legal issue before the court was whether the costs of the children's education were of a kind that would have been expected by both parents to be a significant factor in their financial circumstances, and whether these costs significantly affected the costs of maintaining the children. The court was also required to consider the financial resources of the liable parent and whether it would be just and equitable to make a departure from the formula assessment.

The court affirmed the previous decision not to depart from the formula assessment. It reasoned that while the costs of education were a relevant consideration, the applicant had not sufficiently demonstrated that these costs were of a kind that both parents would have expected to be a significant factor, nor that they significantly affected the costs of maintaining the children to the extent required for a departure. Furthermore, the court found that considering the financial resources of the liable parent, it was not just and equitable to make a departure determination.

Orders