Loomis and Forstater (Child support) - [2021] AATA 5038

Loomis and Forstater (Child support) [2021] AATA 5038 (2 November 2021)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2021/SC021803
APPLICANT:  Ms Loomis
OTHER PARTIES:  Child Support Registrar
Mr Forstater

TRIBUNAL:Member K Dordevic
DECISION DATE: 2 November 2021
DECISION:

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

the father’s adjusted taxable income is varied to $282,143 from 15 March to 12 September 2021; and
the father’s annual rate of child support is increased by:
o   $25,200 for the period 1 January to 31 December 2021;
o   $29,988 for the period 1 January to 31 December 2022; and
o   $30,588 for the period 1 January to 31 December 2023.

CATCHWORDS

CHILD SUPPORT – departure determination – costs of education – manner expected by both parents – cost of maintaining the children are significantly affected – financial resources of the parents – effect of court order on departure application – just and equitable 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

The Child Support (Assessment) Act 1989 (the Act) provides for an administrative assessment of the child support payable. It uses a formula which contains variables such as the parents’ adjusted taxable incomes and their percentages of care. The Act also provides for a departure from the administrative assessment in certain circumstances.
This case was registered with the Department of Human Services – Child Support (now Services Australia) on 17 August 2018 and has been collectable since that date. Ms Loomis (the mother) and Mr Forstater (the father) are the parents of three children. Relevant to this application, only two children remain subject to the administrative assessment, aged 15 (the youngest child) and 18 years (the middle child) born [June] 2003. The children are reflected as being in the mother’s 100% care. The eldest child was born [in] July 2000.
The mother lodged a change of assessment application on 13 November 2020. On 1 March 2021 a senior case officer determined that the father’s annual liability was to be increased by $20,427 in the 2021 calendar year in respect of the youngest child’s school fees. The mother sought a review of that decision on 20 March 2021. On 1 June 2021 an objections officer partly allowed the objection and determined that from 15 March 2021 until a terminating event occurs, the father’s adjusted taxable income is varied to $253,000 and that the annual rate payable by the father is increased by $20,428 in the 2021 calendar year in respect of the youngest child’s school fees.
On 22 June 2021 the mother sought further review with the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal). The tribunal issued…

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 5038
Decision Date: 2 November 2021

CaseChat Overview and Summary

This matter concerned an appeal to the Federal Circuit and Family Court of Australia regarding a child support departure determination. The applicants, Loomis and Forstater, sought to set aside a decision made by the Child Support Registrar concerning the costs of their children's education. The core of the dispute revolved around whether the Registrar had erred in refusing to depart from the standard child support assessment to account for these educational expenses.

The primary legal issue before the Court was whether the Registrar had correctly applied the provisions of the *Child Support (Registration and Collection) Act 1988* (Cth) when considering the departure application. Specifically, the Court had to determine if the costs of the children's education were of a kind that would be incurred by both parents in a two-parent family, if the parents had separated, and if these costs significantly affected the costs of maintaining the children. Furthermore, the Court needed to assess whether the financial resources of both parents had been adequately considered and if it was otherwise just and equitable to depart from the assessment.

Her Honour Judge Dordevic found that the Registrar had failed to properly consider the evidence regarding the nature and extent of the educational costs and their impact on the children's maintenance. The Court applied the principles outlined in the *Child Support (Registration and Collection) Act 1988* (Cth), emphasizing that a departure determination requires a careful balancing of the children's needs, the parents' financial capacities, and the overall justness of the outcome. The Court concluded that the Registrar's decision was not supported by the evidence and that a departure was warranted.

The Court set aside the decision under review and substituted its own determination, ordering a departure from the assessment to reflect the costs associated with the children's education.

Orders