Ryalls and Burakowski (Child support) - [2024] AATA 3574

Ryalls and Burakowski (Child support) [2024] AATA 3574 (15 August 2024)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2024/AC027380
APPLICANT:  Ms Ryalls
OTHER PARTIES:  Child Support Registrar
Mr Burakowski

TRIBUNAL:Member S Irvine
DECISION DATE: 15 August 2024
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that for the period 1 November 2023 to 31 August 2025, the adjusted taxable income for Mr Burakowski is varied to $47,792.

This decision does not affect the departure decision made by the Tribunal (differently constituted) on 7 June 2023, and that decision remains in place.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources – ground for departure – earning capacity of a parent – costs of special needs – 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

Ms Ryalls and Mr Burakowski are the parents of [Child 1] (13), in respect of whom a child support assessment has been in place since 29 April 2011. As at 15 August 2023, under that assessment, Mr Burakowski was assessed to pay child support to Ms Ryalls at an annual rate of $1,000 based on Mr Burakowski’s estimated income of $0 and Ms Ryalls’s adjusted taxable income for the 2021/22 year of $68,971, and based on a previous decision of this Tribunal (differently constituted), which increased Mr Burakowski’s annual rate of child support by $1,000 for the period 9 November 2022 to 8 November 2027.
On 15 August 2023 Ms Ryalls applied to Services Australia – Child Support (Child Support) for a departure from the administrative assessment. In her application Ms Ryalls raised the grounds known as reason 8A (relating to the income, assets and financial resources of a parent) and 8B (relating to the earning capacity of a parent). Mr Burakowski opposed Ms Ryalls’s application.
On 3 November 2023 a Child Support decision maker decided to allow Ms Ryalls’s application, and made a decision that:
· In the period from 1 November 2023 to 30 June 2024 Mr Burakowski’s adjusted taxable income is set at $45,095; and
· In the period from 1 November 2023 to 8 November 2027 the annual rate of child support payable by Mr Burakowski is increased by $1,000 to reflect his share of orthodontic costs for [Child 1].
On 29 November 2023 Mr Burakowski objected to the decision made on 3 November 2023. On 16 January 2024 a Child Support objections officer allowed the objection. The objections officer found that no ground for a departure from the assessment had been made out, and consequently they set aside the original decision and replaced it with a new decision that there should be no departure from the administrative assessment.
On…

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: [2024] AATA 3574
Decision Date: 15 August 2024

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, Ryalls, against the respondent, Burakowski. The dispute centred on whether the child support assessment should be varied due to specific circumstances relating to the earning capacity of a parent and the costs associated with a child's special needs. The decision was made by Member S Irvine of the relevant tribunal.

The primary legal issues before the tribunal were whether the existing child support assessment should be set aside and substituted with a new assessment. This required the tribunal to consider whether the grounds for departure, specifically relating to the earning capacity of a parent and the costs of special needs, were established. The tribunal had to determine if these factors were not properly taken into account in the original assessment or if they had changed significantly.

In reaching its decision, the tribunal applied the principles governing departure determinations under the *Child Support (Registration and Collection) Act 1988*. It considered evidence presented regarding the respondent's earning capacity, assessing whether this capacity was being deliberately underutilised or if there were other factors affecting it. Furthermore, the tribunal examined the evidence concerning the special needs of the child and the associated costs, evaluating whether these costs were extraordinary and directly attributable to the child's condition. The tribunal's reasoning involved a careful balancing of the legislative intent to ensure adequate financial support for children with the specific factual circumstances presented by the parties.

The tribunal set aside the original child support assessment and substituted it with a new determination, reflecting its findings on the grounds for departure.

Orders