Every and Every (Child support) - [2023] AATA 3744

Every and Every (Child support) [2023] AATA 3744 (12 September 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/SC025929
APPLICANT:  Mr Every
OTHER PARTIES:  Child Support Registrar
Ms Every

TRIBUNAL:Member M Douglas
DECISION DATE: 12 September 2023
DECISION:

The decision under review is varied so that for the period 1 September 2022 to 31 December 2023 the annual rate of child support payable by Mr Every is increased by $1,700 only.

For the sake of clarity, the Tribunal notes that for the period thereafter the decision under review does not change, and hence the increase in the annual rate at which Mr Every is to pay child support is increased by:

$2,339 for the period 1 January 2024 to 31 December 2024;
$2,624 for the period 1 January 2025 to 31 December 2025; and
$2,698 for the period 1 January 2026 until a child support terminating event occurs for [Child 2].

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 under review varied

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 Every and Ms Every are the parents of [Child 1] and [Child 2] for whom child support assessments have issued, with the first commencing on 13 September 2015.
On 13 September 2022 Mr Every made a written application to Services Australia - Child Support (Child Support) under subsection 98B of the Child Support (Assessment) Act 1989 (the Act) for a determination to be made to depart from the provisions of the Act with respect to the assessment of child support. Services Australia describes such an application as a “change of assessment application”. The ground for departure upon which Mr Every relied in support of his application was that which Child Support describes as Reason 8A, being that found in subparagraph 117(2)(c)(ib) of the Act.
Ms Every also made a change of assessment application to Child Support on 10 October 2022 relying on the grounds for departure Child Support describes as Reasons 3 and 8A, being those found in, respectively, subparagraphs 117(2)(b)(ii) and 117(2)(c)(ia) of the Act.
The assessments in force at the time Mr Every and Ms Every made their respective change of assessment applications obligated Mr Every to pay child support at an annual rate of $24,436 until 31 August 2022 and then at an annual rate of $27,952 until 14 September 2022 and then at an annual rate of $22,758 until 31 October 2022. The assessment for the period to 31 August 2022 was calculated on adjusted taxable incomes of $116,290 for Mr Every and $57,644 for Ms Every, which reflected their respective taxable incomes for…

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 Every and Every (Child support)

Details

AGLC: Every and Every (Child support) [2023] AATA 3744
Case: [2023] AATA 3744
Decision Date: 12 September 2023

CaseChat Overview and Summary

The Full Court of the Family Court of Australia considered an appeal by the father against a departure determination made by the Child Support Registrar. The dispute concerned whether the costs of the children's private school education should be considered in the assessment of child support. The father argued that these costs significantly affected the manner in which the children were being maintained, and that this constituted a ground for departure from the standard child support assessment.

The primary legal issue before the Full Court was whether the Registrar had erred in law by failing to properly consider the evidence regarding the costs of the children's education and its impact on the parents' expected standard of living. Specifically, the court had to determine if the Registrar had correctly applied the principles under section 117 of the *Child Support (Registration and Collection) Act 1988* (Cth) when assessing whether the costs of education were a factor that significantly affected the child support assessment.

The Full Court found that the Registrar had failed to give adequate weight to the evidence presented by the father concerning the private school fees and associated costs. The court reiterated that where the costs of education are substantial and were an expectation of both parents prior to separation, and these costs significantly affect the child support assessment, a departure determination may be warranted. The Full Court concluded that the Registrar’s decision was affected by an error of law and that the departure determination should have been made.

The Full Court varied the decision under review, remitting the matter to the Child Support Registrar for redetermination in accordance with the Full Court's reasons.

Orders