Hanchett and Hanchett (Child support) - [2022] AATA 3058

Hanchett and Hanchett (Child support) [2022] AATA 3058 (24 May 2022)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2021/HC022653
APPLICANT:  Mr Hanchett
OTHER PARTIES:  Child Support Registrar
Ms Hanchett

TRIBUNAL:Senior Member R Ellis (Presiding), Senior Member M Kennedy

DECISION DATE: 24 May 2022
DECISION:

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

for the period from 1 September 2020 to 31 December 2020 the adjusted taxable income of Mr Hanchett is varied to A$127,889;
for the period from 1 January 2021 to 30 April 2024 the adjusted taxable income of Mr Hanchett is varied to A$96,407;
for the period from 1 January 2021 to 31 December 2021 the annual rate of child support payable by Mr Hanchett is increased by A$5,944; and

for the period from 1 January 2022 to 30 June 2022 the annual rate of child support payable by Mr Hanchett is increased by A$10,002.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the liable parent – costs of education – manner expected by both parents – 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.
Mr Hanchett and Ms Hanchett are the parents of [Child 1] (born May 2003), [Child 2] (born April 2005) and [Child 3] (born May 2007). There has been a child support assessment in place since 28 October 2018 and Mr Hanchett is currently the liable parent.
The following administrative assessments of child support are under consideration:
·     for the period from 23 September 2020 to 7 May 2021 Mr Hanchett was assessed to pay an annual rate of A$3,942 based on a 2019-20 adjusted taxable income of A$38,169 for Mr Hanchett and a 2020-21 estimated income of A$102,773 for Ms Hanchett;
·     for the period from 8 May 2021 to 30 June 2021 Mr Hanchett was assessed to pay an annual rate of A$3,378 based on a 2019-20 adjusted taxable income of A$38,169 for Mr Hanchett and a 2019-20 adjusted taxable income of A$135,591 for Ms Hanchett; and
·     for the period from 1 July 2021 to 30 November 2021 Mr Hanchett was assessed to pay an annual rate of A$3,386 based on a 2019-20 adjusted taxable income of A$38,169 for Mr Hanchett and a 2019-20 adjusted taxable income of A$135,591 for Ms Hanchett.
On 19 December 2020 Ms Hanchett applied to the Child Support Agency for a change to the assessment on the basis of the high costs of caring for, educating or training the children (Reason 3) and 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: [2022] AATA 3058
Decision Date: 24 May 2022

CaseChat Overview and Summary

This matter concerned an appeal to the Full Court of the Family Court of Australia regarding a child support departure determination. The appeal was brought by the liable parent, Mr Hanchett, against a decision of the Child Support Registrar which had granted a departure from the standard child support assessment. The dispute centred on whether the Registrar had erred in finding that a ground for departure was established and in subsequently making a departure determination.

The primary legal issues before the Full Court were whether the Registrar had correctly applied the relevant provisions of the *Child Support (Registration and Collection) Act 1988* (Cth) in determining that the costs of the child's education constituted a ground for departure, and whether the Registrar's decision to depart from the assessment was justified. Specifically, the court considered whether the costs of the child's education were of a kind that were not covered by the standard assessment and whether these costs were incurred in a manner that was reasonable and expected by both parents.

The Full Court analysed the evidence concerning the child's schooling and the financial commitments of both parents. It was found that the Registrar had correctly identified that the costs associated with the child's private school education, including tuition fees and associated expenses, were not adequately reflected in the standard assessment. The court affirmed that where a child's educational costs are significant and were reasonably expected by both parents at the time of separation, this can constitute a ground for departure. The Registrar's decision to depart was upheld as being within the scope of the legislation and supported by the evidence presented.

The Full Court set aside the Registrar's departure determination and substituted its own.

Orders