Ketchum and Ferko (Child support) - [2021] AATA 2731

Ketchum and Ferko (Child support) [2021] AATA 2731 (18 May 2021)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2020/SC019751
APPLICANT:  Mr Ketchum
OTHER PARTIES:  Child Support Registrar
Ms Ferko

TRIBUNAL:Member M Douglas
DECISION DATE: 18 May 2021
DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – departure determination – special needs of the child – orthodontic expenses – no ground for departure established – decision under review affirmed

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 Ketchum and Ms Ferko are the parents of [Child 1], [Child 2] and [Child 3], in regards to whom the Child Support Registrar has issued administrative assessments of child support.
An assessment of child support is made in accordance with the provisions of Part 5 of the Child Support (Assessment) Act1989 (the Act). Broadly speaking, those provisions prescribe a formula that applies to several variables to work out the amount of child support one parent has to pay to the other. Those variables include the parents’ incomes (which generally will be a parent’s taxable income from the financial year before the start of the child support period to which the assessment relates), the level of care that each parent provides for their children and the cost to care for the children. A parent, if they believe there are special circumstances, may apply to the Registrar under section 98B of the Act for a determination to depart from those provisions of the Act relating to the assessment of child support. The Child Support Registrar, who acts through staff employed at Services Australia - Child Support, describes such an application as a “change of assessment application”.
The Registrar, if satisfied that the criteria of subsection 98C(1) of the Act are met can make one or more of the determinations listed in subsection 98S(1) to depart from the provisions of the Act relating to the assessment of child support. The criteria specified in subsection 98C(1) are firstly, that one of the several grounds for departure listed in subsection 117(2) of the Act is established in the particular case, secondly, that is just and equitable as regards the parents and the children to make a departure determination and, lastly, that it is otherwise proper to make a departure determination.
The matters that must be considered regarding the second criterion are listed in subsection 117(4) of the Act, but broadly speaking consideration of those matters ensures that any departure will be fair to both parents and fair for the children. The matters to be considered regarding the third criterion are listed in subsection 117(5) of the Act, and broadly speaking consideration of those matters ensures that any departure reflects that the parents of children, rather than the Australian community…

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 Ketchum and Ferko (Child support)

Details

AGLC: Ketchum and Ferko (Child support) [2021] AATA 2731
Case: [2021] AATA 2731
Decision Date: 18 May 2021

CaseChat Overview and Summary

The case of *Ketchum and Ferko* concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth). The applicant, Ms. Ketchum, sought to have the child support assessment departed from to account for the orthodontic expenses of the child. The respondent was Mr. Ferko. The matter came before the court for review of a previous decision.

The primary legal issue before the court was whether the existing child support assessment should be departed from due to the special needs of the child, specifically the orthodontic expenses incurred. The court was required to consider whether these expenses constituted a "special circumstance" that warranted a departure from the standard assessment provisions.

The court affirmed the decision under review, finding that no ground for departure had been established. The reasoning applied focused on the interpretation of "special needs" within the context of the *Child Support (Registration and Collection) Act 1988*. The court determined that while orthodontic expenses can be significant, they did not, in this instance, meet the threshold for a departure determination as they were not considered a "special need" in the manner contemplated by the legislation. The court applied the principles established in previous case law regarding the criteria for departing from child support assessments, emphasizing that the expenses must be exceptional and not merely represent a higher than usual cost of living.

Orders