Harker and Harker (Child support) - [2018] AATA 4892

Harker and Harker (Child support) [2018] AATA 4892 (4 December 2018)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2018/SC014196
APPLICANT:  Mr Harker
OTHER PARTIES:  Child Support Registrar
Ms Harker

TRIBUNAL:Member W Kennedy
DECISION DATE: 4 December 2018
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides to set Mr Harker’s adjusted taxable income at $78,000.00 for the period from 31 October 2017 to 31 December 2018, and to increase the assessment by $7,013.00 per annum for the period from 31 October 2017 to 30 June 2018.

CATCHWORDS

CHILD SUPPORT – departure determination – costs of education - manner expected by both parents - cost of maintaining the children are significantly affected – costs of child care are significant - financial resources of both parents - period of departure - 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 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

This decision concerns an application for a departure from the formula assessment of child support. Mr Harker and Ms Harker are the parents of [Child 1], who was born in 2012, [Child 2], who was born in 2013, and [Child 3], who was born in 2015. There has been a child support assessment in place for the children made by the Child Support Agency of the Department of Human Services (the Department) since 23 October 2017. The assessment is based on the parents having shared care of the children.
The annual rate of child support payable by Mr Harker at the time of Ms Harker’s application to the Department was $960.00. This was based on Mr Harker’s adjusted taxable income (ATI) of $30,457.00 and Ms Harker’s ATI of $10,951.00.
On 8 December 2017 Ms Harker applied to the Department for a departure from the assessment based on Reason 2 (the special needs of the children), Reason 3 (the cost of educating and training the children in the manner expected by the parents), Reason 6 (the high cost of child care) and Reason 8A (the income, property and financial resources of one or both of the parents). Ms Harker later withdrew her application under Reason 2.
On 24 January 2018 a delegate of the Child Support Registrar considered the departure application and decided that Reasons 3, 6 and 8A had been established. The delegate decided to set Mr Harker’s adjusted taxable income (ATI) at $76,500.00 and Ms Harker’s ATI at $50,000.00, both for the period from 1 January 2018 to 31 December 2019, and to increase the assessment by $6,819.00 for the period from 1 January 2018 to 31 December 2018, and by $7,160.00 for the period from 1 January 2019 to 31 December 2019.
On 20 February 2018 Mr Harker lodged an objection to that decision.…

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: [2018] AATA 4892
Decision Date: 4 December 2018

CaseChat Overview and Summary

This matter concerned an appeal by the father, Mr Harker, against a departure determination made by the Child Support Registrar. The dispute centred on whether the costs of the children's education and childcare, which were significantly affected by the parents' respective financial resources, should be considered in the child support assessment. The appeal was heard by W Kennedy M.

The primary legal issue before the court was whether the Registrar had erred in making a departure determination under section 117 of the *Child Support (Registration and Collection) Act 1988* (Cth). Specifically, the court had to consider whether the costs of the children's education and childcare were of a kind that would be expected by both parents, and whether these costs significantly affected the costs of maintaining the children, thereby justifying a departure from the standard assessment. The court also had to consider the financial resources of both parents in its determination.

The court found that the Registrar had erred in her assessment. It was held that the costs associated with the children's education and childcare were indeed significant and were of a nature that both parents would reasonably expect to incur. Furthermore, the court considered the financial capacity of both parents and concluded that a departure from the standard assessment was warranted to reflect these circumstances. Consequently, the court set aside the original decision and substituted its own orders.

Orders