Hachem and Romaquera (Child support) - [2025] ARTA 1113

Hachem and Romaquera (Child support) [2025] ARTA 1113 (2 May 2025)

Applicant/s: Ms Hachem

Respondent: Child Support Registrar

Other Parties: Mr Romaguera
Tribunal Number: 2024/PC028519
Tribunal: General Member M Martellotta
Place:Perth
Date:02 May 2025

Decision:The Tribunal affirms the decision under review.

CATCHWORDS

CHILD SUPPORT – departure determination – dismissal request – grounds to depart not established – income, property and financial resources – family trust – inheritance – costs of education – ground for departure established – special needs – special circumstances – duty to maintain the children – another relevant dependent child – NDIS funding – not just and equitable to make a departure determination – no financial capacity to make contribution toward the special needs – 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 pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.

Statement of Reasons

BACKGROUND

The applicant and the second party are the parents of two children. [Child A] (born [date]) and [Child B] (born [date]). According to Services Australia (Child Support) the children are in the above primary care (100% care) of the applicant.
The child support case was registered on 10 May 2016 and Child Support collects on behalf of the applicant.
Child Support records reflect that the following assessments were in place, for the period:
a)26 July 2022–31 January 2023 the second party was assessed to pay the minimum annual rate of $446. This was based on the second party’s 2020/21 adjusted taxable income of $20,194 (ATI) and the applicant’s 2020/21 ATI of $50,494.
b)1 February 2023–31 December 2023 the second party was assessed to pay the minimum annual rate of $493. This was based on the second party’s 2021/22 ATI of $14,931 and the applicant’s 2021/22 ATI of $41,725.
c)1 January 2024–31 March 2024 the second party was assessed to pay the minimum annual rate of $519. This was based on the second party’s 2022/23 ATI of $18,901 and the applicant’s 2022/23 ATI of $16,345.
The applicant applied for a change of assessment on 30 November 2023. She raised as grounds reason 3 (costs of education) and reason 8A (the other parent’s income, property and financial resources).
A decision-maker on 19 April 2024 decided the ground of reason 8A was established and departed from the assessment so that for the period 14 February 2024 to 31 December 2025 the second party’s ATI was increased by $27,000. The impact being that the annual rate of child support payable by the liable parent (the second party) was $3,747 per annum.[1]
[1] Page 245
The applicant and the second party each objected to that decision. An objections officer by decision dated 13 August 2024 concluded that whilst a ground to depart was established pursuant to reason 8A – it was not just or equitable to depart from the administrative assessment.
The applicant applied to…

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: [2025] ARTA 1113
Decision Date: 2 May 2025

CaseChat Overview and Summary

In the case of Hachem and Romaguera, the Administrative Review Tribunal (Tribunal) considered an application for review of a decision by the Child Support Registrar (Registrar). The Registrar had determined that there was a ground to depart from the administrative assessment of child support payable by the second party to the applicant for their two children. The Registrar increased the second party’s adjusted taxable income (ATI) by $27,000 for the purpose of calculating the child support payable. The Tribunal affirmed the decision under review. In reaching its decision the Tribunal found that whilst a ground to depart was established pursuant to reason 3 (costs of education), it was not just and equitable to depart from the administrative assessment. The Tribunal was satisfied that there was a ground to depart pursuant to reason 8A (the other parent’s income, property and financial resources), however it was not satisfied that there was a ground to depart pursuant to reason 8A as neither party had income, property and financial resources apart from that utilised in the administrative assessment. The Tribunal was satisfied that there was a ground to depart pursuant to reason 3 (costs of education) as the children were being educated in a manner that was not expected by both parents. However, it was not satisfied that it was just and equitable to depart from the administrative assessment. The Tribunal concluded that it was not just and equitable to depart from the administrative assessment as the second party did not have the financial capacity to make a contribution towards the children’s special needs. The Tribunal also concluded that it was not just and equitable to depart from the administrative assessment having regard to the other factors set out in subsection 117(4) of the Act.

Orders