Khoo and Beazley (Child support) - [2020] AATA 5845

Khoo and Beazley (Child support) [2020] AATA 5845 (5 November 2020)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2020/SC019164
APPLICANT:  Mr Khoo
OTHER PARTIES:  Child Support Registrar
Ms Beazley

TRIBUNAL:Member T Bubutievski
DECISION DATE: 5 November 2020
DECISION:

The decision under review is varied such that Ms Beazley’s adjusted taxable income is set at $65,000 from 1 January 2020 to 31 December 2021.

All other aspects of the decision under review remain unchanged.

CATCHWORDS

CHILD SUPPORT – departure determination – costs of education – manner expected by both parents – cost of maintaining the children are significantly affected – financial resources of both parents – decision under review varied

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 Khoo and Ms Beazley are the parents of [Child 1], who was born in 2006, and [Child 2], who was born in 2009. There has been a child support assessment in place for the children made by Services Australia (Child Support) (the former Department of Human Services) (the Department) since 18 November 2016. This is an application seeking a change to that assessment.
A previous decision of this Tribunal (differently constituted) made on 19 April 2018 set Mr Khoo’s adjusted child support income at $150,000 for the period 6 April 2017 to 31 December 2019. It also increased the annual rate of child support payable by Mr Khoo due to the cost of private school fees for both the children.
On 27 August 2019 Mr Khoo made an application to Child Support for a change to the child support assessment on the basis of Reason 3 (private school fees); and Reasons 8A and 8B (his and Ms Beazley’s income and financial resources). In response, Ms Beazley cross applied for Reason 2 (special needs) and Reason 3 (private school fees).
On 19 February 2020 a departmental delegate decided to depart from the administrative assessment due to private school fees and Mr Khoo’s income not being correctly reflected in the child support assessment. The decision made covers several years and is as follows:

For the period 1 January 2020 to 31 December 2021 Mr Khoo’s adjusted taxable income (ATI) amount be set at $80,000; and
For the periods 1 January 2020 to 28 February 2020 and from 1 April 2020 to 31 December 2020 the annual rate of child support increase by $4,791 being Mr Khoo’s contribution to the children’s additional education expenses; and
For the period 1 March 2020 to 31 March 2020 the annual rate of child support increase by a further $18,363 ($4,791 + $13,572) being Mr Khoo’s contribution to the out of pocket expenses related to [Child 1]’s operation plus Mr Khoo’s contribution to the children’s additional education expenses; and
For the period…

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 Khoo and Beazley (Child support)

Details

AGLC: Khoo and Beazley (Child support) [2020] AATA 5845
Case: [2020] AATA 5845
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review by Mr Khoo of a decision by a departmental objections officer concerning a child support assessment for his two children, [Child 1] and [Child 2]. Mr Khoo and Ms Beazley are the parents of the children, and a child support assessment has been in place since 2016. Mr Khoo sought a departure from the administrative assessment on the grounds of private school fees and income and financial resources, while Ms Beazley cross-applied on the grounds of special needs and private school fees. The Social Services and Child Support Division of the Tribunal was required to determine whether a ground existed to depart from the administrative assessment and, if so, whether such a departure would be just and equitable.

The Tribunal considered whether the costs of educating the children in the manner expected by both parents constituted a ground for departure under subparagraph 117(2)(b)(ii) of the *Child Support (Assessment) Act 1989* (the Assessment Act). It was established that both parents intended for the children to be privately educated at [School 1], and the tuition fees of $8,700 significantly increased the overall cost of maintaining the children. The Tribunal found this to be a special circumstance, thus establishing a ground for departure. The Tribunal also considered [Child 1]'s special needs requiring surgery, which was a further ground for departure.

In determining whether a departure would be just and equitable, the Tribunal examined the financial circumstances of both parents under subsection 117(4) of the Assessment Act. Despite some doubts regarding the veracity of Mr Khoo's declared income and expenses, the Tribunal found no reason to disturb the decision to set his adjusted child support income at $75,000 per annum, adjusted for inflation. The Tribunal also considered Ms Beazley's financial position, noting her business ownership, investment properties, and declared income. The Tribunal varied the decision under review to set Ms Beazley’s adjusted taxable income at $65,000 from 1 January 2020 to 31 December 2021, with all other aspects of the decision remaining unchanged.

Orders