Perkins and Perkins (Child support) - [2022] AATA 5090

Perkins and Perkins (Child support) [2022] AATA 5090 (15 December 2022)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2021/SC022903
APPLICANT:  Ms Perkins
OTHER PARTIES:  Child Support Registrar
Mr Perkins

TRIBUNAL:Senior Member K Dordevic, Presiding
Senior Member J Cipolla

DECISION DATE: 15 December 2022
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that Mr Perkins’s child support liability is varied to:

$28,000 per annum from 13 April 2021 to 30 March 2022;
$20,000 per annum from 31 March 2022 to 31 December 2024.

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 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

The Child Support (Assessment) Act 1989 (the Act) provides for an administrative assessment of the child support payable. It uses a formula which contains variables such as the parents’ adjusted taxable incomes and their percentages of care of the children. The Act also provides for a departure from the administrative assessment in certain circumstances.
Ms Perkins (the mother) and Mr Perkins (the father) are the parents of three children, an older son [Child 1] and twins [Child 2] and [Child 3]. This case was first registered with Child Support (the Agency) on 6 June 2016 and was collectable from 25 March 2019. From 14 September 2018 the care of the children was consistent with court ordered care of 62% to the mother and 38% to the father. The care percentages were amended on 18 April 2022 to reflect that the eldest child was residing solely with the father from 31 March 2022.
The mother lodged a departure application on 13 April 2021 on the basis of the older child’s private schooling and the father’s income, property, financial resources and earning capacity. The father lodged a cross application on 24 May 2021 on the basis of the mother’s income, property, financial resources and earning capacity.
On 6 July 2021 a senior case officer determined that for the period 1 April 2021 to 30 June 2023 the father’s adjusted taxable income is to be varied to $215,118 and the mother’s adjusted taxable income is to be varied to $67,835. On 15 September 2021 the father lodged an extension of time application to object to that decision. On 8 October 2021 the extension of time was granted and on 18 November 2021 his objection was allowed, whereby the decision was set aside and it was determined that it was neither in the interests of justice or equity to depart from the administrative assessment.
On 8 December 2021 the mother sought further review with the Social…

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 Perkins and Perkins (Child support)

Details

AGLC: Perkins and Perkins (Child support) [2022] AATA 5090
Case: [2022] AATA 5090
Decision Date: 15 December 2022

CaseChat Overview and Summary

This matter concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth) brought by the applicant parent, Perkins, against the respondent parent, also Perkins. The dispute centred on the costs associated with the child's education, with the applicant seeking to depart from the assessment of child support payable. The decision was made by Senior Member K Dordevic of the Child Support Special Powers Division.

The primary legal issue before the court was whether a ground for departure from the child support assessment had been established, and if so, whether it was just and equitable to make a departure determination. Specifically, the court was required to consider the income, property, and financial resources of both parents in determining whether the existing assessment adequately reflected their respective capacities to meet the child's educational expenses.

The Senior Member found that a ground for departure had been established, having regard to the specific circumstances of the case and the financial positions of both parties. The court applied the principles outlined in the *Child Support (Registration and Collection) Act 1988*, particularly those relating to the costs of education and the overall financial circumstances of the parents. The court concluded that the existing assessment was not just and equitable in light of these factors.

Consequently, the Senior Member set aside the original decision to depart and substituted it with a new determination. The specific details of the substituted determination, including the revised child support payable, were not provided in the excerpt.

Orders