Rodham and Rodham (Child support) - [2023] AATA 1188

Rodham and Rodham (Child support) [2023] AATA 1188 (3 April 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2022/HC024427
APPLICANT:  Ms Rodham
OTHER PARTIES:  Child Support Registrar
Mr Rodham

TRIBUNAL:Member M Baulch
DECISION DATE: 3 April 2023
DECISION:

The tribunal set aside the decision under review and, in substitution, decided that there is to be a departure from the administrative assessment of child support, such that:

From 1 January 2022 to 22 April 2022, the annual rate of child support otherwise payable by Ms Rodham is to be increased by $11,166; and
From 12 September 2022 to 31 December 2022, the annual rate of child support otherwise payable by Ms Rodham is to be increased by $11,166.

CATCHWORDS

CHILD SUPPORT – departure determination – costs of education - manner expected by both parents - cost of maintaining the children are significantly affected – a ground for departure established – 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

This application for review concerns the amount of child support paid by Ms Rodham to Mr Rodham in respect of [Child 1] and [Child 2], who were born in 2005 and 2006.
The Child Support (Assessment) Act 1989 (the Act) provides for an administrative assessment of the child support payable by one separated parent to the other. It uses a statutory formula which contains variables such as the parents’ incomes, the number of children, their ages and their percentages of care.
From 18 January 2020, Ms Rodham was assessed, by Services Australia – Child Support (Child Support), as liable to pay child support to Mr Rodham in respect of [Child 1] and [Child 2]. From 1 October 2021, that assessment required Ms Rodham to pay the statutory minimum rate of child support of $446 per annum, based upon Ms Rodham’s adjusted taxable income of $16,164, an amount estimated by Ms Rodham, and Mr Rodham’s adjusted taxable income of $141,143, an amount determined by Child Support because Mr Rodham has not lodged his 2020–21 income tax return.
A parent can make an application to Child Support for a change to the administrative assessment based on the statutory formula in the special circumstances of their case – referred to in the Act as a departure determination. Mr Rodham made such an application on 9 February 2022. The grounds relied upon by Mr Rodham were:
·      The children had special needs;
·      There are extra costs in caring for, educating or training the children in the way both parents intended;
·      The child support assessment did not correctly reflect one or both of the parents’ income, property or financial resources; and
·      The child support assessment did not correctly reflect one or…

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: [2023] AATA 1188
Decision Date: 3 April 2023

CaseChat Overview and Summary

The case of *Rodham and Rodham (Child support)* concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth). The dispute centred on whether the costs of a child's education constituted a ground for departure from the standard child support assessment. The matter was before the court for review of a previous decision.

The primary legal issue before the court was whether the costs associated with the children's education, specifically the manner in which that education was expected by both parents, significantly affected the cost of maintaining the children, thereby establishing a ground for departure from the child support assessment.

The court reasoned that the legislative intent behind the *Child Support (Registration and Collection) Act 1988* allowed for departure where the costs of education, as expected by both parents, had a significant impact on the maintenance costs of the children. Applying this principle, the court found that the criteria for a departure determination had been met. Consequently, the court set aside the previous decision and substituted its own determination.

Orders