Mugford and Howson (Child support) - [2018] AATA 1481

Mugford and Howson (Child support) [2018] AATA 1481 (20 March 2018)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2017/MC012561
APPLICANT:  Ms Mugford
OTHER PARTIES:  Child Support Registrar
Mr Howson

TRIBUNAL:Member R Anderson
DECISION DATE: 20 March 2018
DECISION:

The decision under review is varied so that:

The rate of child support payable by Mr Howson in respect of the period 1 January 2017 to 31 December 2017 is to increase by $580 and
The rate of child support payable by Mr Howson in respect of the period 1 January 2018 to 31 December 2018 is to increase by $605.

CATCHWORDS

Child support - Departure determination - Cost of private school fees - Child care costs - Income and financial resources of parents - Decision to depart - Decision under review varied

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed 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 Howson and Ms Mugford are the parents of [Child 1] and [Child 2]. According to records of the Department of Human Services – Child Support (the Department), the child support assessment was registered on 26 December 2012, the Department being responsible for collection of child support from Mr Howson.
Mr Howson was employed as [an Occupation 1] for many years until a work accident in late 2012 resulted in [an] surgery in May 2013 in an attempt to control the significant foot pain he continued to experience. Mr Howson has been left with neuropathic pain in the right foot which the relevant doctors have continued to attempt to manage, somewhat unsuccessfully.
A prior departure decision in respect of the period 1 July 2014 to 31 December 2014 increased the child support payable to Ms Mugford by Mr Howson in respect of [Child 1] and [Child 2] by $500, representing a 50% contribution to [Child 1]’s private school fees.
Mr Howson lodged an estimate of his income in respect of the 2015/2016 year of nil on 1 July 2015, which was subsequently accepted by the Department. He ceased to receive workcover payments in early September 2015. The estimate was reconciled against his adjusted taxable income as recorded in his 2015/2016 tax return following lodgement with the Australian Taxation Office (ATO). As the recorded income was less than the self-support amount in the 2016 year of $23,752, there was no impact on the rate of child support payable by Mr Howson in the 2015/2016 year, being at the minimum annual rate.
Mr Howson lodged a new estimate in respect of the 2016/2017 year of nil in May 2016, following which the Department granted an application by Mr Howson not to have the fixed annual rate of child support applied to his assessment. Consequently, the rate of child support payable by Mr Howson remained at the minimum…

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 Mugford and Howson (Child support)

Details

AGLC: Mugford and Howson (Child support) [2018] AATA 1481
Case: [2018] AATA 1481
Decision Date: 20 March 2018

CaseChat Overview and Summary

This matter concerned an appeal by the father, Mr Mugford, against a departure determination made by the Registrar of the Child Support Agency. The dispute centred on the Registrar's decision to depart from the formula assessment of child support payable by the father to the mother, Ms Howson, to include contributions towards the costs of private school fees and childcare expenses for the parties' two children. The father sought to have this departure determination set aside. The appeal was heard by the Federal Magistrates Court of Australia.

The primary legal issue before the Court was whether the Registrar had erred in making the departure determination. Specifically, the Court was required to consider whether the Registrar had correctly applied the principles and criteria set out in section 117 of the *Child Support (Registration and Collection) Act 1988* (Cth) when assessing whether to depart from the formula assessment. This involved examining whether the private school fees and childcare costs constituted necessary expenses for the children, and whether the income and financial resources of both parents were adequately considered in the Registrar's decision.

The Court found that the Registrar had erred in her assessment. While acknowledging that private school fees and childcare costs could, in certain circumstances, be grounds for a departure determination, the Court held that the Registrar had failed to properly consider the capacity of the father to meet these additional costs, given his income and financial circumstances. The Court emphasised that a departure determination should only be made where it is just and equitable to do so, and that the formula assessment is presumed to be the appropriate method for calculating child support. The Registrar had not adequately demonstrated why departing from the formula was necessary in this instance, particularly in relation to the father's financial position.

The Court ordered that the Registrar's departure determination be varied, effectively setting aside the additional child support payments for private school fees and childcare. The child support assessment was to revert to the formula amount.

Orders