Grewcock and Thorne (Child support) - [2023] AATA 1650

Grewcock and Thorne (Child support) [2023] AATA 1650 (4 May 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2022/BC024271
APPLICANT:  Mrs Grewcock
OTHER PARTIES:  Child Support Registrar
Mr Thorne

TRIBUNAL:Senior Member R Ellis
DECISION DATE: 04 May 2023
DECISION:

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

for the period from 29 November 2021 to 30 September 2024 the adjusted taxable income of Mr Thorne is varied to $92,084; and
for the period from 1 February 2022 to 30 April 2023 the annual rate of child support payable by Mr Thorne is increased by $2,800.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the liable parent – orthodontic costs – a ground for departure established – decision to depart - 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 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

This review is about whether or not there should be a departure from the administrative assessment of child support.
Mrs Grewcock and Mr Thorne are the parents of [Child 1] (born May 2010). There has been a child support assessment in place since 23 March 2012 and Mr Thorne is currently the liable parent under the assessment.
The following administrative assessment of child support is under consideration:
· for the period from 1 September 2021 to 30 November 2022 Mr Thorne was assessed to pay an annual rate of $4,769 based on a 2020-21 adjusted taxable income of $60,299 for Mrs Grewcock and a 2020-21 adjusted taxable income for Mr Thorne of $64,941.
On 29 November 2021 Mrs Grewcock applied to Child Support for a change to the assessment on the basis of the special needs of the child (the ground more commonly known as Reason 2) and a parent’s income, property and financial resources (Reason 8A).
On 21 January 2022 Mr Thorne made a cross-application on the basis of a parent’s income, property and financial resources (Reason 8A).
On 9 March 2022 Child Support made the decision to change the assessment so that for the period from 1 February 2022 to 31 January 2024 the annual rate of child support payable by Mr Thorne is increased by $1,750 as his contribution to [Child 1’s] orthodontic costs (the original decision).
On 28 March 2022 Mr Thorne objected to this decision and on 16 June 2022 Child Support allowed the objection and made the decision to refuse to change the assessment under section 98F of the Child Support (Assessment) Act 1989 (the Act) because it would not be just and equitable to do so (the objection decision).
On 18 July 2022 Mrs Grewcock applied for a review of the objection decision by the Administrative Appeals Tribunal (the Tribunal).
A…

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: [2023] AATA 1650
Decision Date: 4 May 2023

CaseChat Overview and Summary

This matter concerned an application by the liable parent, Mr Grewcock, for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth) regarding child support payable to Ms Thorne. The dispute centred on whether certain orthodontic costs incurred for the child constituted a ground for departure from the assessed child support amount. The case was heard by Senior Member Ellis of the relevant tribunal.

The primary legal issue before the tribunal was whether the orthodontic costs incurred by Ms Thorne for the child met the criteria for a departure determination under section 117 of the Act. Specifically, the tribunal had to consider if these costs were necessary, reasonable, and if the liable parent's contribution to them would be an undue burden. The tribunal also had to determine if the existing child support assessment was no longer adequate to meet the child's needs due to these exceptional circumstances.

Senior Member Ellis reasoned that the orthodontic treatment was a necessary medical expense for the child and that the costs incurred were reasonable given the nature of the treatment. The tribunal found that the liable parent's income and financial resources were such that requiring him to meet a portion of these costs would not constitute an undue burden. Consequently, the tribunal determined that the existing child support assessment was inadequate to meet the child's needs due to these exceptional circumstances. The decision to depart from the assessment was therefore upheld. The tribunal set aside the previous decision and substituted it with a new determination that reflected the orthodontic costs.

Orders