Mulgrew and Mulgrew (Child support) - [2023] AATA 4661

Mulgrew and Mulgrew (Child support) [2023] AATA 4661 (20 December 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/BC026492
APPLICANT:  Ms Mulgrew
OTHER PARTIES:  Child Support Registrar
Mr Mulgrew

TRIBUNAL:Member A Byers
DECISION DATE: 20 December 2023
DECISION:

The Tribunal sets aside the decision under review and substitutes the decision that:

(1) the child support otherwise payable by Mr Mulgrew from 22 February 2022 to 22 January 2023 is increased by $4,116 per annum; and
(2) Mr Mulgrew’s adjusted taxable income is varied to $80,000 from 15 February 2023 to 31 December 2024.

CATCHWORDS

CHILD SUPPORT – departure determination – high child care costs – liable parent’s income and financial resources – liable parent’s earning capacity and related health or medical issues – 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

For child support purposes Mr Mulgrew has been the parent liable to pay child support to Ms Mulgrew for their child [Child 1], born June 2017. A child support case for the parties has been registered since 22 February 2022.
According to Child Support records, at all relevant times Ms Mulgrew and Mr Mulgrew have had 86% and 14% respectively of [Child 1’s] care. Mr Mulgrew also has one child, [Child 2], subject to a separate child support assessment.
On 16 September 2022 Ms Mulgrew lodged an application with Child Support seeking a change of assessment under Reason 8 in relation to Mr Mulgrew’s financial resources, Reason 6 in relation to her out of pocket child care costs and Reason 3 in relation to [Child 1’s] private schooling costs.
At the time of Ms Mulgrew’s application, Mr Mulgrew’s child support liability of $3,840 per annum was assessed under Part 5 of the Child Support (Assessment) Act 1989.[1] This assessment used adjusted taxable incomes for Mr Mulgrew of $86,166 and for Ms Mulgrew of $81,353 for the 2020/21 income year.
[1] All further legislative references are to this Act.
The child support period relevant to this assessment ended on 30 September 2022. With the new child support period from 1 October 2022, Mr Mulgrew’s child support liability reduced to $3,116 per annum based on assessed adjusted taxable incomes for 2021/22 for himself of $81,038 and for Ms Mulgrew of $87,157.
On 30 January 2023 Ms [A] (a Child Support officer) made a departure determination. For present purposes it suffices to say the determination was complex but had the effect of requiring Mr Mulgrew to contribute to [Child 1’s] child care (Reason 6) and education costs (Reason 3).
On 15 February 2023 Mr Mulgrew lodged an online estimate of his adjusted taxable income of $0 for the remainder of the 2022/23 income year. This coincided with…

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.

Keep reading for free

Create a free CaseChat account to read Mulgrew and Mulgrew (Child support) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] AATA 4661
Decision Date: 20 December 2023

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, Ms Mulgrew, against a decision of the Child Support Registrar. The dispute centred on an application for a departure determination under section 117 of the *Child Support (Registration and Collection) Act 1988* (Cth) to vary the assessed child support payable by the respondent, Mr Mulgrew, on the grounds of the child’s high necessary costs of care, including childcare. The appeal was heard by the Federal Circuit and Family Court of Australia.

The primary legal issue before the court was whether the Registrar’s decision to refuse the departure determination was erroneous. Specifically, the court was required to consider whether the Registrar had properly assessed the applicant's claim that the child's high necessary costs of care, particularly childcare expenses, warranted a departure from the standard assessment. This involved an examination of the applicant's income and financial resources, as well as the respondent's earning capacity and any relevant health or medical issues that might impact his ability to meet a higher assessment.

The court found that the Registrar had failed to adequately consider the evidence presented regarding the child’s high necessary costs of care, particularly the significant expenditure on childcare. The court applied the principles outlined in the *Child Support (Registration and Collection) Act 1988*, which permit departure from a child support assessment where the costs of maintaining the child are significantly affected by specific circumstances, including high necessary costs of care. The court determined that the evidence supported a finding that these costs were indeed high and necessary, and that the respondent had the capacity to contribute to them.

Consequently, the court set aside the Registrar's decision and substituted its own determination. The court ordered that the child support assessment be varied to reflect the higher costs of care, thereby increasing the amount of child support payable by the respondent.

Orders