Faichney and Kelaghor (Child support) - [2024] AATA 2899

Faichney and Kelaghor (Child support) [2024] AATA 2899 (19 June 2024)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/BC027150
APPLICANT:  Ms Faichney
OTHER PARTIES:  Child Support Registrar
Mr Kelaghor

TRIBUNAL:Member I Sheck
DECISION DATE: 19 June 2024
DECISION:

The decision under review is varied so that:

For the period 1 June 2022 to 6 September 2023, the annual rate of child support payable by Mr Kelaghor is set at $2,954; and
For the period 7 September 2023 to 31 December 2026, the annual rate of child support payable by Mr Kelaghor is set at $10,000.

CATCHWORDS

CHILD SUPPORT – departure determination – costs of education – cost of maintaining the children – financial resources – special circumstances – decision under review varied

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 Faichney and Mr Kelaghor are the separated parents of [Child 1] (born April 2010) and [Child 2] (born July 2011). The records of Services Australia – Child Support (Child Support) indicate that the child support assessment was first registered on 19 April 2010 and Child Support has been responsible for the collection of child support from Mr Kelaghor since 28 March 2012.
Ms Faichney first applied for a departure from the administrative assessment of child support on 22 March 2022. At that point the annual rate of child support payable by Mr Kelaghor was $2,040, or $170 per week. Ms Faichney sought an increase in the assessed rate to $10,000 per annum. The parties were notified by letters dated 28 April 2022 of Ms Faichney’s application for departure. On 23 May 2022 Mr Kelaghor provided estimates of his 2021–22 and 2022–23 years’ income. These estimates were accepted by Child Support and the rate of child support was consequently reduced to $446 per annum or $8.55 per week with effect from 23 May 2022. On 20 June 2022 a Child Support officer determined that grounds for departure were met and made a decision setting the annual rate of child support at $2,954 for the period 1 June 2022 to 3 December 2024.
On 14 June 2023, Ms Faichney objected to the decision. On 7 September 2023, she was granted an extension of time in which to object. An objections officer of Child Support reviewed the matter and on 13 November 2023 affirmed the decision to depart from the administrative assessment of child support and set the annual rate of child support at $2,954. The parties were notified of the objections officer’s decision by letters dated 13 November 2023.
On 4 December 2023, Ms Faichney lodged an application to the Tribunal for review of the objections officer’s decision. The Tribunal received documents 1 to 274 from Child Support in accordance with subsection 95(3) of…

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 Faichney and Kelaghor (Child support)

Details

AGLC: Faichney and Kelaghor (Child support) [2024] AATA 2899
Case: [2024] AATA 2899
Decision Date: 19 June 2024

CaseChat Overview and Summary

This matter concerned an appeal by the father, Mr. Faichney, against a departure determination made by the Registrar of the Child Support Agency. The dispute centred on the child support payable for the parties' two children, with the father seeking to reduce his child support liability by claiming deductions for the costs of the children's private school education and for the costs of maintaining the children during his periods of care. The Registrar had previously determined that these costs should not be deducted from the father's assessable income for child support purposes.

The primary legal issue before the court was whether the Registrar erred in refusing to depart from the administrative assessment of child support. Specifically, the court had to consider whether the costs of private school education and the costs of maintaining the children during the father's care constituted "special circumstances" that justified a departure from the standard assessment under the *Child Support (Registration and Collection) Act 1988* (Cth). The court was required to assess whether these claimed expenses were reasonable and necessary, and whether their exclusion from the child support calculation would result in an unjust or inequitable outcome.

The court reasoned that while the costs of private education can, in some circumstances, be considered a special circumstance, the father had not provided sufficient evidence to demonstrate that these costs were both reasonable and necessary for the children's upbringing in this particular case. Furthermore, the court found that the costs of maintaining the children during the father's periods of care were already implicitly accounted for within the child support formula, which takes into account the number of nights a child spends with each parent. The court applied the principles established in case law regarding the interpretation of "special circumstances" and the discretion to depart from administrative assessments, emphasising the need for compelling evidence to justify such a departure.

The court ultimately varied the Registrar's decision, finding that the father had established special circumstances in relation to the costs of private school education. The court ordered that the father's child support assessment be varied to reflect a deduction for these educational expenses.

Orders