Horley and Aldersley (Child support) - [2018] AATA 1714

Horley and Aldersley (Child support) [2018] AATA 1714 (30 April 2018)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2017/MC013119
APPLICANT:  Mr Horley
OTHER PARTIES:  Child Support Registrar
Ms Aldersley

TRIBUNAL:Member T Hamilton-Noy
DECISION DATE: 30 April 2018
DECISION:

The tribunal sets aside the decision under review and substitutes its decision that:

For the period 22 November 2017 until a terminating event occurs for [Child 1], Mr Horley’s adjusted taxable income is set at $347,000 per annum;
From 22 November 2017 to 31 December 2017, the rate of child support is increased by $13,617 in respect of [Child 1’s] schooling costs;
From 1 January 2018 to 30 June 2018, the rate of child support is increased by $14,026 per annum in respect of [Child 1’s] schooling costs;
From 1 January 2018 to 31 December 2018, the rate of child support is increased by $4,475 in respect of [Child 1’s] orthodontic costs.

CATCHWORDS
Child support – Departure determination – Special needs of the child – Costs of education for the child – Income and financial resources of parents – 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

Mr Horley and Ms Aldersley are the separated parents of [Child 2], [Child 3] and [Child 1].
A case has been registered with the Department of Human Services – Child Support (the Department) since February 2006 and child support has been collectable by the Department since this time. Mr Horley is the payer of child support in this matter and Ms Aldersley the payee.
The Department states that at the time Ms Aldersley applied for a departure determination, the Administrative Appeals Tribunal (the tribunal), differently constituted, affirmed a decision of the Department that from 21 September 2015 until [Child 3] ceased to be an eligible child of the assessment, the annual rate of child support is varied to $10,000. [Child 3] ceased to be an eligible child on 21 November 2017 and from 22 November 2017 to 31 December 2017 the administrative assessment of child support provided for an annual rate of child support of $13,863, based on Mr Horley’s 2015/2016 adjusted taxable income of $179,491 and Ms Aldersley’s 2015/2016 adjusted taxable income of $57,655.
On 1 May 2017 Ms Aldersley applied for a departure determination on the basis that the costs of maintaining the children were significantly affected because of their special needs (called ‘Reason 2’ by the Department); because the children were being educated in a manner expected by the parents (called ‘Reason 3’ by the Department); because of the income, property and financial resources of Mr Horley (called ‘Reason 8’ by the Department); and because of Ms Aldersley’s legal duty to support another person (called ‘Reason 9’ by the…

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 1714
Decision Date: 30 April 2018

CaseChat Overview and Summary

The case of *Horley and Aldersley* concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth). The applicant sought to vary the child support assessment on the grounds of the special needs of the child and the costs associated with the child's education. The decision under review was made by the Child Support Registrar.

The primary legal issue before the court was whether the Registrar had erred in refusing to make a departure determination. Specifically, the court had to consider whether the Registrar had properly assessed the evidence regarding the child's special needs and the associated educational expenses, and whether these factors warranted a departure from the standard assessment. The court also considered the income and financial resources of both parents in its determination.

The court found that the Registrar had failed to adequately consider the evidence presented concerning the child's special needs and the significant costs of the child's education. Applying the principles of the *Child Support (Registration and Collection) Act 1988*, the court determined that these circumstances constituted grounds for a departure from the assessment. The court reasoned that the existing assessment did not adequately reflect the financial reality of meeting the child's specific requirements.

Consequently, the court set aside the decision of the Child Support Registrar and substituted its own decision, ordering a departure from the assessment to account for the special needs and educational costs of the child.

Orders