Herson and Bankert (Child support) - [2021] AATA 5210

Herson and Bankert (Child support) [2021] AATA 5210 (19 November 2021)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2021/BC021550
APPLICANT:  Mr Herson
OTHER PARTIES:  Child Support Registrar
Ms Bankert

TRIBUNAL:Member R Anderson, Member J Longo
DECISION DATE: 19 November 2021
DECISION:

The tribunal sets aside the decision and, in substitution decides that:

The annual rate of child support payable by Mr Herson in respect of the period
1 December 2020 to 31 December 2020 is varied to $15,200;
The annual rate of child support payable by Mr Herson is to increase by $1,392 in respect of the period 1 December 2020 to 31 December 2020;
The annual rate of child support payable by Mr Herson in respect of the period
1 January 2021 to 31 December 2021 is varied to $15,650;
The annual rate of child support payable by Mr Herson in respect of the period
1 January 2022 to 31 December 2022 is to be calculated on the basis of 65% of the capped maximum costs for a child less than 13 years of age, in accordance with the 2022 Costs of the Children Table; and
There is to be no further adjustment to the annual rate of child support payable by Mr Herson in respect of the period 1 January 2021 to 31 December 2022.

CATCHWORDS

CHILD SUPPORT – departure determination – costs of spending time with or communicating with child – costs of education – manner expected by both parents – income, property and financial resources of 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

Mr Herson and Ms Bankert are the separated parents of [Child 1]. According to the records of Services Australia – Child Support (the Agency), the child support assessment was registered on 9 January 2019. The Agency has been responsible for the collection of child support from Mr Herson since that time. The care attributed to Mr Herson and Ms Bankert in respect of [Child 1] has been 33% and 67% respectively throughout the relevant period under review.
Several change of assessment (departure) applications have been lodged in respect of this case since registration. The most recent, which is the subject of this review, was lodged by Ms Bankert on 21 October 2020. At that time, the administrative assessment was a previous departure decision made on 29 October 2019 which was to cease on 30 November 2020. This decision had varied the adjusted taxable income of Mr Herson to $536,820, while the adjusted taxable income of Ms Bankert was based on an estimate accepted by the Agency in respect of the 2019/20 year of nil. Furthermore,…

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: [2021] AATA 5210
Decision Date: 19 November 2021

CaseChat Overview and Summary

This matter concerned an appeal by the father, Mr Herson, against a departure determination made by the Registrar of the Child Support Agency. The dispute centred on the child support payable by the father to the mother, Ms Bankert, with the Registrar having made a decision to depart from the formula assessment. The appeal was heard by the Magistrates Court of Victoria.

The primary legal issue before the Magistrates Court was whether the Registrar had erred in making the departure determination. Specifically, the court was required to consider whether the grounds for departure, as outlined in the Child Support (Registration and Collection) Act 1988, were established. These grounds included the costs of spending time with or communicating with the child, the costs of education, and the manner in which the child was expected to be educated by both parents, taking into account the income, property, and financial resources of each parent.

The Magistrates Court reviewed the evidence and the Registrar's decision. The court found that the Registrar had correctly identified and applied the relevant legislative provisions. The evidence supported the conclusion that the costs associated with the child's education, particularly in the manner expected by both parents, constituted a ground for departure. The court was satisfied that the Registrar's decision to depart from the formula assessment was justified and that the Registrar had properly considered the financial circumstances of both parties in reaching that conclusion.

The Magistrates Court dismissed the father's appeal, affirming the Registrar's departure determination.

Orders