Maltby and Gotts (Child support) - [2022] AATA 4001

Maltby and Gotts (Child support) [2022] AATA 4001 (3 October 2022)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2022/SC023432
APPLICANT:  Mr Maltby
OTHER PARTIES:  Child Support Registrar
Ms Gotts

TRIBUNAL:Senior Member K Dordevic, Presiding
Member A Beckett
Member D Tucker

DECISION DATE: 3 October 2022
DECISION:

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

19 February 2021 to 31 December 2025 Mr Maltby’s adjusted taxable income is varied to $150,000 per annum;
1 January to 31 December 2021 Mr Maltby’s annual liability is increased by $8,700; and
1 January 2022 to 31 December 2025 Mr Maltby’s annual liability is increased by $5,400.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the liable parent – school fees – a ground for departure established – decision 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

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 of the children. The Act also provides for a departure from the administrative assessment in certain circumstances.
Mr Maltby (the father) and Ms Gotts (the mother) are the parents of five children. This case was registered with Services Australia – Child Support (the Agency) on 28 February 2011 and was collectable from 10 May 2019. The eldest child ceased to be an eligible child of the assessment in 2019 and the second eldest child [in] February 2022. At all relevant times the children are recorded as being in the mother’s sole care.
The father lodged a departure application on 19 February 2021. The mother lodged a cross-application on 21 April 2021.
On 8 September 2021 a senior case officer varied the father’s adjusted taxable income to $150,000 per annum for the period 21 April 2021 to 30 September 2025.
On 24 September 2021 the father lodged an objection to that decision. On 8 February 2022 an objections officer partly allowed the objection, varying the father’s adjusted taxable income to $105,000 per annum for the period 21 April 2021 to 31 May 2024.
On 8 March 2022 the father sought further review with the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal). A directions hearing was held on 1 July 2022. Directions were issued on the same day requiring compliance by 8 August 2022.
On 6 July 2022 the tribunal issued notices, pursuant to section 95H of the Child Support (Registration and Collection) Act 1988, requesting that:
·[Ms A], [Employer 1], provide the tribunal with a statement by…

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 4001
Decision Date: 3 October 2022

CaseChat Overview and Summary

This matter concerned an appeal by the liable parent, Mr Maltby, against a departure determination made by the Child Support Registrar. The dispute centred on whether the liable parent should be required to contribute to the private school fees for his three younger children, who were attending an Anglican school, as opposed to the systemic Catholic schools previously attended by the older children. The Senior Member of the Tribunal was tasked with reviewing the Registrar's decision.

The primary legal issue before the Tribunal was whether the children were being educated in the manner that was expected by their parents, a prerequisite for a departure determination under the relevant legislation. This involved assessing the parents' past conduct and expressed intentions regarding their children's education, particularly in light of the father's change in position regarding the type of private school and his stated inability to afford the associated fees. The Tribunal also had to consider whether it was just and equitable to depart from the assessment of child support, taking into account the parents' financial positions.

The Tribunal reasoned that the parents had a long-held expectation that their children would receive a private education, evidenced by the enrolment of the older children in systemic Catholic schools. While the father's expressed preference shifted to an Anglican school with higher fees, and he claimed he could no longer afford private school costs, the Tribunal found that his objection to a specific school did not negate the general expectation of private education. The Tribunal was satisfied that the middle children were being educated in the manner expected by their parents, and that the father's change of view was partly due to disillusionment with a particular school and partly due to financial concerns. The Tribunal concluded that a ground for departure was established.

The Tribunal set aside the decision under review and substituted its own decision, ordering a departure from the assessment of child support to include contributions towards the private school fees for the three younger children.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In the matter of Mabry & Mabry & Anor (SSAT Appeal) [2010] FMCAfam 388 the Court held (at paragraphs 78–81):78. ... The first step is to determine whether the child is ‘being ... educated ... in the manner that was expected by his or her parents.’ The simplest method of proof of the parent’s expectations is to look to the past conduct of the parents, often evidenced by the child attending a particular school before separation. However, this is not the only method of proof of the expectations of the parents.79. Significantly, lack of agreement as to the specific school does not mean that the parents lack the expectation that the child will attend a private school of a particular category, for example a Catholic school. In this case the first three children did attend Catholic schools, and the youngest was attending a Catholic primary school. It is clear that the parents expected their children to receive a Catholic education. In this case it is clear that the parties intended their children to have a private education at Catholic schools whose fees are at the modest end of the range of fees for private schools. As the first three children attended a boy’s school, a different school had to be chosen for the youngest child as a result of differences in gender. Quite rightly, no one suggested that differences in gender are in any way relevant whether the youngest child should receive an equivalent education.80. Whether the fees can be met (and the proportions in which the parents must contribute), must be determined having regard to the parents’ actual financial positions, is a matter to consider under ‘just and equitable’. [Tribunal’s emphasis] The tribunal is satisfied that the parents’ long held the view that their children would attend systemic Catholic primary and secondary schools evidenced by their enrolment of the children in such schools pre and post separation. The documentary evidence suggests that in 2019 the father changed his view in that he no longer supported the three younger children’s attendance at systemic Catholic schools. Instead, the father sought to have the three younger children attend an Anglican school with considerably higher costs which he was willing to meet in full. Since the mother’s cross-application the father has maintained that he cannot afford to contribute to the three younger children’s private secondary school costs. On balance, the tribunal has formed the view that the parents had a clear expectation that all the children, including the three younger children, would receive secondary education outside the public system; that is, that they would receive a private secondary education. There was a long-held view that the children would be educated at systemic Catholic schools. The father has given evidence that his expectation had changed in part because he had become disillusioned with the particular Catholic secondary school, and in part because he could no longer afford private school fees. In relation to the particular school, his objection to a specific school does not negate the general expectation that the children be educated privately, as evidenced by his 2019 emails outlined above. The tribunal is satisfied that the middle children, by attending the school from Year 7, are being educated in the manner that was expected by their parents.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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