Hawksley and Harker (Child support) - [2023] AATA 276

Hawksley and Harker (Child support) [2023] AATA 276 (18 January 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2022/MC024372
APPLICANT:  Ms Hawksley
OTHER PARTIES:  Child Support Registrar
Mr Harker

TRIBUNAL:Member M Baulch
DECISION DATE: 18 January 2023
DECISION:

The tribunal set aside the decision under review and, in substitution, decided that there are to be departures from the administrative assessment in both child support cases, such that:

For the period 1 July 2021 to 31 December 2021, Ms Hawksley’s adjusted taxable income is varied to be $70,622 per annum.
From 1 July 2021 until the date [Child 2] ceases to be an eligible child, Mr Harker’s adjusted taxable income is varied to be $575,000 per annum.
From 1 July 2021 to 31 December 2021, the annual rate of child support otherwise payable by Mr Harker is to be increased by $4,600.
From 1 January 2023 until the date [Child 2] ceases to be an eligible child, the annual rate of child support otherwise payable by Mr Harker is to be increased by $2,800.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the liable parent – costs of education – 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 application for review concerns the amount of child support paid by Ms Hawksley and Mr Harker in respect of [Child 1] and [Child 2] who were born in 2006 and 2008.
The Child Support (Assessment) Act 1989 (the Act) provides for an administrative assessment of the child support payable by one separated parent to the other. It uses a statutory formula which contains variables such as the parents’ income, the number of children, their ages and their percentages of care.
There are two child support cases in this matter, with each parent assessed as liable, by Services Australia – Child Support (Child Support) to pay child support to the other. Mr Harker has been assessed as liable to pay child support to Ms Hawksley since 8 May 2015 and, since 1 January 2022, Ms Hawksley has been assessed as liable to pay child support to Mr Harker.
A parent can make an application to Child Support for a change to the administrative assessment based on the statutory formula in the special circumstances of their case – referred to in the Act as a departure determination. Mr Harker made such an application, on 3 November 2021, seeking a change to the child support assessment on the basis that he had provided goods or property for the benefit of the children and the assessment did not correctly reflect one or both parents’ income, property and/or…

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 Hawksley and Harker (Child support)

Details

AGLC: Hawksley and Harker (Child support) [2023] AATA 276
Case: [2023] AATA 276
Decision Date: 18 January 2023

CaseChat Overview and Summary

The matter of *Hawksley and Harker* concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth). The primary dispute revolved around whether the liable parent's income, property, and financial resources, specifically in relation to the costs of education, constituted a ground for departure from the assessed child support amount. The decision was made by M Baulch M.

The court was required to determine whether the circumstances of the case met the criteria for a departure from the standard child support assessment. This involved considering whether the liable parent possessed income, property, or financial resources that, if taken into account, would result in a different child support amount, and whether the costs of education were a relevant factor justifying such a departure.

The court found that a ground for departure was established, indicating that the liable parent's financial circumstances, particularly concerning educational expenses, warranted a reassessment. Consequently, the court set aside the original decision regarding the departure determination and substituted its own decision.

Orders