Olford and Harloe (Child support) - [2022] AATA 5015

Olford and Harloe (Child support) [2022] AATA 5015 (19 December 2022)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2022/SC024174
APPLICANT:  Mr Olford
OTHER PARTIES:  Child Support Registrar
Ms Harloe

TRIBUNAL:Senior Member D Benk
DECISION DATE: 19 December 2022
DECISION:

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

·     For the period 19 October 2021 to 31 July 2023, Mr Olford’s adjusted taxable income is set at $84,014.
·     For the period 10 February 2022 to 31 July 2023, Ms Harloe’s adjusted taxable income is set at $80,600.
·     For the period 1 January 2022 to 31 December 2022, the annual rate of child support payable by Mr Olford is increased by $2,642 (being his share of [Child 1’s] Catholic school fees).

CATCHWORDS

CHILD SUPPORT – departure determination – costs of education - income, property and financial resources of both parents – 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

BACKGROUND

On 9 November 2021, Ms Harloe asked the Child Support Agency (the Agency) to reassess the level of child support payable for their two children[1] by Mr Olford on the basis the administrative assessment (fixed annual rate of $2,934 per annum from 19 October 2021 to 30 June 2022) did not reflect the costs of raising the children in the manner mutually agreed (private education) and nor did it reflect Mr Olford’s income and/or earning capacity.
[1] [Child 2](born [July] 2004) and [Child 1] (born [October] 2007).
Following multiple internal reviews, the Agency determined there were grounds for departure from the administrative assessment established and that it was just, equitable and otherwise proper to assess child support as follows:
- For the period 18 October 2021 to 14 January 2022, Mr Olford’s adjusted taxable income is set at $124,187.
- For the period 15 January 2022 to 31 July 2023, Mr Olford’s adjusted taxable income is set at $51,433.
- For the period 10 February 2022 to 31 July 2023, Ms Harloe’s adjusted taxable income is set at $80,600.
- For the period 1 January 2022 to 31 December 2022, the annual rate of child support payable by Mr Olford is increased by $2,642 (being his share of [Child 1’s]’s Catholic school fees).
- For the period 1 January 2023 to 31 December 2023, the annual rate of child support payable by Mr Olford is increased by $3,830 (being his share of [Child 1’s] Catholic school fees).[2]
[2] Extracted from Folio 31 of the papers.
The matter was heard on 19 December 2022 when both parties appeared via conference telephone. In the course of the decision making, the tribunal had regard to 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.

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Details

Case: [2022] AATA 5015
Decision Date: 19 December 2022

CaseChat Overview and Summary

This matter concerned an application by the father, Mr Olford, for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth) concerning the costs of his child's education. The mother, Ms Harloe, opposed the application. The decision was made by Deputy Principal Member Benk SM of the Child Support Special Powers Division of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the existing child support assessment should be departed from, pursuant to section 117 of the *Child Support (Registration and Collection) Act 1988*, to take into account the costs of the child's private school education. This required the Tribunal to consider the income, property, and financial resources of both parents in determining whether the child's needs for education were not adequately met by the current assessment.

The Tribunal found that a ground for departure was established, specifically that the child's needs for education were not adequately met by the assessment. The Deputy Principal Member reasoned that the costs associated with the child's attendance at a private school were significant and that the existing assessment did not sufficiently account for these expenses. The Tribunal applied the principles outlined in the *Child Support (Registration and Collection) Act 1988*, focusing on the child's best interests and the capacity of both parents to contribute to those needs.

The Tribunal set aside the original decision and substituted a new decision. The orders made were that the child support assessment be departed from to reflect the costs of the child's private school education.

Orders