Murphy and Murphy (Child support) - [2016] AATA 2001

Murphy and Murphy (Child support) [2016] AATA 2001 (13 May 2016)

DIVISION: Social Services & Child Support Division

APPLICANT: Mr Murphy

OTHER PARTIES: Mrs Murphy

Child Support Registrar

DECISION DATE: 13 May 2016

DECISION

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

Mr Murphy’s objection is allowed;
For the period from 2 April 2015 until there is a child support terminating event in respect of [Child 1]:
(a) Mrs Murphy’s child support income is varied to $56,000; and
(b) Mr Murphy’s child support income is varied to $230,000; and
For the period from 2 April 2015 until there is a child support terminating event in respect of [Child 1], the annual rate of child support payable by Mrs Murphy is varied, by adding the following amounts:
(a) For the period from 2 April 2015 to 31 December 2015, $23,830;
(b) For the period from 1 January 2016 to 31 December 2016, $12,570; and
(c) From 1 January 2017 until the occurrence of a child support terminating event, $13,200.

CATCHWORDS
Child Support - Departure determination - School fees - Income and financial resources of parent - Liquid assets - 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 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 Murphy and Mrs Murphy are the parents of [Child 2], aged 17 and [Child 1], aged 16. As at 2 April 2015, the children were recorded as being in the care of Mr Murphy for 90% of the time, and in the care of Mrs Murphy for 10% of the time.
With regard to those percentages of care and the parents’ recorded adjusted taxable incomes of $0, Mrs Murphy was liable to pay Mr Murphy child support at a rate of $2,644 per year. That rate is called the fixed annual rate, which is a special rate prescribed by the child support law in cases in which the basic formula would otherwise produce a lower rate payable by a person who did not receive any Commonwealth income support in the relevant tax year.
On 2 April 2015, Mr Murphy lodged an application of a type commonly referred to as an application for a change of assessment. I shall refer to it as an application for a departure determination. Mr Murphy completed the application form such that he asserted that there were extra costs because the children were being educated in the manner expected by the parents (specifically, private school fees) and that Mrs Murphy’s income, property, financial resources and/or earning capacity were not correctly reflected in the assessment. In the form, he stated that he suggested that a correct assessment would have Mrs Murphy paying $50,000 per year child support.
Initially, the Registrar modified the…

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 Murphy and Murphy (Child support)

Details

AGLC: Murphy and Murphy (Child support) [2016] AATA 2001
Case: [2016] AATA 2001
Decision Date: 13 May 2016

CaseChat Overview and Summary

The matter of *Murphy and Murphy (Child support)* concerned an objection by Mr Murphy to a departure determination made by the Child Support Registrar concerning child support payments. The dispute centred on the inclusion of school fees as a factor in the child support assessment and the assessment of the parties' respective incomes and financial resources. The decision was made by the Child Support Registrar, acting as a tribunal.

The primary legal issue before the tribunal was whether the Child Support Registrar had erred in its initial departure determination by including school fees and in its assessment of the parties' incomes and financial resources. Specifically, the tribunal had to consider whether the circumstances warranted a departure from the standard child support assessment and how the income and financial resources of both Mr and Mrs Murphy should be calculated for the purposes of that assessment, particularly in light of the school fees.

The tribunal reasoned that the initial departure determination was flawed. It found that the inclusion of school fees in the calculation of child support was not justified under the relevant legislative provisions. Furthermore, the tribunal re-evaluated the income and financial resources of both parties. Upon review, the tribunal concluded that a departure from the standard assessment was warranted, but on different grounds and with different income figures than those initially determined.

Consequently, the tribunal set aside the original decision of the Child Support Registrar. In substitution, it allowed Mr Murphy's objection. The tribunal varied Mrs Murphy's child support income to $56,000 and Mr Murphy's to $230,000 for the relevant period. It also varied the annual rate of child support payable by Mrs Murphy, ordering additional amounts of $23,830 for the period from 2 April 2015 to 31 December 2015, $12,570 for the period from 1 January 2016 to 31 December 2016, and $13,200 annually from 1 January 2017 until a child support terminating event occurred in respect of the child.

Orders

Orders of the court

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

Mr Murphy’s objection is allowed;

For the period from 2 April 2015 until there is a child support terminating event in respect of [Child 1]:

(a) Mrs Murphy’s child support income is varied to $56,000; and

(b) Mr Murphy’s child support income is varied to $230,000; and

For the period from 2 April 2015 until there is a child support terminating event in respect of [Child 1], the annual rate of child support payable by Mrs Murphy is varied, by adding the following amounts:

(a) For the period from 2 April 2015 to 31 December 2015, $23,830;

(b) For the period from 1 January 2016 to 31 December 2016, $12,570; and

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.