Ousey and Tuckman (Child support) - [2024] AATA 4128

Ousey and Tuckman (Child support) [2024] AATA 4128 (25 September 2024)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2024/PC027316
APPLICANT:  Ms Ousey
OTHER PARTIES:  Child Support Registrar
Mr Tuckman

TRIBUNAL:Member R Prasad
DECISION DATE: 25 September 2024
DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – departure determination – financial resources in the administrative assessment – earning capacity – changed occupation – cost of maintaining the children – educated in the manner expected by the parents – decision under review affirmed

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

Ms Ousey (the mother) and Mr Tuckman (the father) are the parents of two children, with the youngest born [in] December 2007 (the child). Since 30 May 2013, this case was registered with Services Australia – Child Support (Child Support). The existing percentages of care are that the mother has 100% care and the father has 0% care of the child from 6 May 2013.
The mother lodged an application to change the child support assessment (the departure application) on 25 November 2022. On 13 March 2023, Child Support determined that no reason to change the child support assessment was established.
On 25 October 2023, the mother lodged an objection. An objections officer, on 6 December 2023, disallowed the objection.
On 4 January 2024, the mother sought review of the objection decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal).
A directions hearing was held on 2 July 2024. Directions were issued on 4 July 2024 requiring compliance by 26 July 2024.
The hearing took place on 20 September 2024, having been rescheduled previously. The mother appeared by MS Teams audio and provided documentation,[1] as did the father.[2] The Child Support Registrar elected not to be represented at the hearing, but provided documentation.[3] Both parties confirmed at the rescheduled hearing that they have received the documentation, and I note uncollected documents were returned to the Tribunal.

ISSUES

[1] Folios A1 to A116.

[2] Folios B1 to B56.

[3] Folios 1 to 349.

The issues before me are:
a. does a ground exist for departure from the administrative assessment of child support; and if so,
b. would it be just and equitable and otherwise proper to make a particular determination.

CONSIDERATION

What does the law say in relation to departure of administrative assessments?

Section 98C of the Child Support (Assessment) Act 1989 (the Act) provides that a decision to depart from an administrative assessment may be made if each of the following requirements are met:
a. at least one ground for departure referred in subsection 117(2) of the Act exists;
b. it would be just and equitable as regards to the child and the parents to…

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 Ousey and Tuckman (Child support)

Details

AGLC: Ousey and Tuckman (Child support) [2024] AATA 4128
Case: [2024] AATA 4128
Decision Date: 25 September 2024

CaseChat Overview and Summary

This matter concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth) by the applicant, Ousey, against the respondent, Tuckman. The dispute centred on the child support assessment for their two children, with Ousey seeking a departure from the administrative assessment on the grounds of Tuckman's alleged financial resources and earning capacity, and the costs associated with maintaining the children in a manner consistent with the parents' expectations.

The primary legal issues before the court were whether Tuckman possessed financial resources beyond those considered in the administrative assessment, and whether Tuckman's earning capacity had changed significantly, particularly due to a change in occupation. The court was also required to consider the costs of maintaining the children, specifically whether these costs were higher than usual due to the parents' intention to educate the children in a manner they expected.

Member R Prasad affirmed the decision under review. The Member found that while Tuckman had changed occupations, this change did not necessarily demonstrate an increased earning capacity that would warrant a departure from the administrative assessment. Furthermore, the Member determined that the costs associated with the children's education, while potentially higher than a standard assessment might account for, did not meet the threshold for a departure determination under the Act, as they were not demonstrably excessive or beyond what could be reasonably expected given the parents' circumstances.

Orders