Mitackis and Mitackis (Child support) - [2024] AATA 2900

Mitackis and Mitackis (Child support) [2024] AATA 2900 (26 June 2024)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/BC026807
APPLICANT:  Ms Mitackis
OTHER PARTIES:  Child Support Registrar
Mr Mitackis

TRIBUNAL:Senior Member S De Bono
DECISION DATE: 26 June 2024
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides as follows:

For the period 21 March 2022 to 30 June 2025 Mr Mitackis’ adjusted taxable income (ATI) is set at $73,000.
For the period 21 March 2022 to 30 June 2023 Ms Mitackis’ ATI is set at $55,958.
For the period 1 July 2023 to 30 June 2025 Ms Mitackis’ ATI is set at $49,251.

The decision of the objections officer in relation to the school fees for [Child 2] remains in place.

CATCHWORDS

CHILD SUPPORT – departure application – high costs of education and income, property and financial resources – costs of one child’s private primary school education significant – no mutual intention for children’s secondary schooling – no mutual intention for ’s schooling – father’s TPI and invalidity payments affected by Federal Court decision – repayments from business investment and inconsistent rent payments – decision under review set aside and substituted

REASONS FOR DECISION

BACKGROUND

The issue to be considered in this application is whether there is a reason to change the administrative assessment of child support and, if so, whether it is just and equitable and otherwise proper to do so.
Ms Mitackis and Mr Mitackis are the parents of [Children 1 and 2]. [Child 1] was recorded as being in Ms Mitackis’ 67% care and Mr Mitackis’ 33% care, [Child 2] was recorded as being in Ms Mitackis’ 87% care and Mr Mitackis’ 13% care. The current care determination has the children being in Ms Mitackis’ 100% care; for [Child 2] this applied from 22 August 2023 and for [Child 1] a new care determination applied from 1 January 2023 with the care recorded as 87% care to Ms Mitackis and 13% care to Mr Mitackis. There has been a registered child support assessment in place from 13 September 2018. Mr Mitackis is the parent liable to pay child support. Services Australia (Child Support) has collected child support from the start of the administrative assessment.
Prior to the departure application lodged by Mr Mitackis on 25 January 2022, the administrative assessment of child support in place was set by a delegate on 18 October 2019 as follows:
·         For the period 23 May 2019 to 31 December 2019, Mr Mitackis’ adjusted taxable income (ATI) is set at $66,480.
·         For the period 1 January 2020 to 30 June 2020, Mr Mitackis’ ATI is set at $67,145.
·         For the period 1 July 2020 to 31 December 2020, Mr Mitackis’ ATI is set at $67,816.
·         For the period 23 May 2019 to 31 December 2019, the annual rate of child support is increased by $1,314 per annum.
·         For the period 1 January 2020 to 31 December 2020, the annual rate is…

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 Mitackis and Mitackis (Child support)

Details

AGLC: Mitackis and Mitackis (Child support) [2024] AATA 2900
Case: [2024] AATA 2900
Decision Date: 26 June 2024

CaseChat Overview and Summary

This matter concerned a departure application brought by the father, Mr Mitackis, against the mother, Ms Mitackis, regarding child support payments for their two children. The application was heard by Senior Member S De Bono.

The primary legal issues before the Tribunal were whether the existing child support assessment should be departed from, and if so, what the revised assessment should be. Specifically, the Tribunal considered the impact of the significant costs associated with one child’s private primary school education, the absence of a mutual intention for the children’s secondary schooling, and the father’s TPI and invalidity payments which had been affected by a Federal Court decision. The Tribunal also examined repayments from a business investment and inconsistent rent payments made by the father.

Senior Member De Bono reasoned that the costs of the private primary school education were a significant factor justifying a departure from the assessment. The Tribunal found that there was no mutual intention between the parties regarding the children’s secondary schooling, nor for the specific schooling of one child. The father’s financial circumstances, including the impact of the Federal Court decision on his TPI and invalidity payments, and the complexities surrounding his business investments and rent payments, were also taken into account.

The Tribunal set aside the original child support assessment and substituted it with a revised assessment.

Orders