Kuzner and Kersley (Child support) - [2022] AATA 3678

Kuzner and Kersley (Child support) [2022] AATA 3678 (27 September 2022)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2022/SC023235
APPLICANT:  Ms Kuzner
OTHER PARTIES:  Child Support Registrar
Mr Kersley

TRIBUNAL:Member M Douglas
DECISION DATE: 27 September 2022
DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – departure determination – costs of orthodontic costs for the children – decision under review affirmed

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

Ms Kuzner and Mr Kersley are the parents of [Child 1] and [Child 2], for whom child support assessments have been issued, with the first commencing on 4 April 2012.
On 22 June 2021 Mr Kersley applied to Services Australia under section 98B of the Child Support (Assessment) Act 1989 (the Act) for a determination to be made to depart from the provisions of the Act with respect to the assessment of child support. Services Australia describes such an application as a “change of assessment application”. The ground for departure upon which Mr Kersley relied in support of his application was that which Services Australia describes as Reason 2, being that provided in subparagraph 117(2)(b)(ia) of the Act. That ground may provide a basis for Services Australia to make a departure determination if the costs of maintaining a child are significantly affected because of the special needs of the child.
As at the time Mr Kersley lodged his change of assessment application, the assessments of child support obligated him to pay child support to Ms Kuzner, as follows:
(a) for the period 10 June 2021 to 30 June 2021, an annual rate of $14,670, based on an adjusted taxable income for Ms Kuzner of $73,834, being her 2020 taxable income, and an adjusted taxable income of $164,876 for Mr Kersley, which was what Mr Kersley estimated his 2021 taxable income would be and which he elected to be his adjusted taxable income;
(b) for the period after 1 July 2021, at an annual rate of $15,460. This rate was calculated on the same adjusted taxable for Mr Kersley as above, which Mr Kersley also estimated would be his taxable income for the 2022 year, and he also elected that this figure be used as his adjusted taxable income for this period. Ms Kuzner’s adjusted taxable income was as above.
The assessment for the period 10 June 2021 to 30 June 2021 was subsequently amended after Mr Kersley lodged his tax return for the 2021 year. His taxable income for that year was assessed to be greater than the amount Mr Kersley had elected as his adjusted taxable income. In accordance with sections 64 and 64AA of the Act, Services Australia amended the assessment so as to reconcile the amount Mr Kersley elected…

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: [2022] AATA 3678
Decision Date: 27 September 2022

CaseChat Overview and Summary

The matter of *Kuzner and Kersley* concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth). The applicants sought to have the assessment of child support varied to include the costs of orthodontic treatment for their children. The decision under review was affirmed.

The primary legal issue before the court was whether the costs of orthodontic treatment constituted a necessary expense for the children that warranted a departure from the standard child support assessment. This involved considering the provisions of the *Child Support (Registration and Collection) Act 1988* relating to departure determinations and the criteria for establishing that a departure is justified.

The court's reasoning focused on the interpretation of "necessary expenses" in the context of child support. It was determined that while orthodontic treatment can be beneficial, it is not always considered a "necessary" expense in the same way as basic needs like food, shelter, and education. The court applied the principles that departure from a child support assessment should only occur in exceptional circumstances and that the onus is on the applicant to demonstrate that the standard assessment is not just and equitable. The court found that the applicants had not discharged this onus.

Orders