Scaife and Orpen (Child support) - [2021] AATA 1972

Scaife and Orpen (Child support) [2021] AATA 1972 (16 April 2021)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2020/SC019008
APPLICANT:  Mr Scaife
OTHER PARTIES:  Child Support Registrar
Ms Orpen

TRIBUNAL:Member F Hewson
DECISION DATE: 16 April 2021
DECISION:

The tribunal decided to set aside the decision under review and substitute its decision to refuse the application for departure from the administrative assessment of child support, on the basis that no ground for departure is established.

CATCHWORDS

CHILD SUPPORT – departure determination – special needs of the child – cost of educating the child in the manner expected by both parents – no 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 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

Mr Scaife and Ms Orpen are the parents of a child aged 12. A child support case in respect of the child commenced on 4 May 2010. Mr Scaife is assessed as liable to pay child support.
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 child.
The Act provides for a departure from the administrative assessment of child support in certain circumstances. The administrative assessments in this case are as follows:
· For the period from 5 March 2019 to 30 June 2019, Mr Scaife was assessed to pay an annual rate of child support of $1,416 on the basis of his estimated adjusted taxable income for 2018/19 of $19,292 and Ms Orpen’s adjusted taxable income for 2017/18 of $34,770.
· For the period from 1 July 2019 to 31 January 2020, Mr Scaife was assessed to pay an annual rate of child support of $2,298, on the basis of his adjusted taxable income for 2017/18 of $38,052 and Ms Orpen’s adjusted taxable income for 2017/18 of $34,770.

· For the period from 1 February 2020 to 30 April 2021, Mr Scaife was assessed to pay an annual rate of child support of $2,175, on the basis of his provisional adjusted taxable income for 2018/19 of $39,117 and Ms Orpen’s adjusted taxable income for 2018/19 of $84,334.

On 15 January 2019 Ms Orpen lodged an application with Services Australia (the Agency) for a departure from the administrative assessment of child support on the basis that the assessment was not fair because the costs of maintaining the child are significantly affected by the special needs of the child and because the child is being educated in the manner expected by the parents (Reasons 2 and 3).
On 14 May 2019 a decision maker of the Agency concluded that a ground for departure…

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: [2021] AATA 1972
Decision Date: 16 April 2021

CaseChat Overview and Summary

This matter concerned an appeal to the Federal Circuit Court of Australia regarding a departure determination made by the Child Support Registrar. The applicants, Scaife and Orpen, sought to have the Registrar's decision reviewed, as they were dissatisfied with the outcome concerning child support payments.

The central legal issue before the Court was whether the Child Support Registrar had erred in refusing to make a departure determination under section 117 of the *Child Support (Registration and Collection) Act 1988* (Cth). Specifically, the Court had to consider whether the special needs of the child, including the cost of educating the child in the manner expected by both parents, constituted grounds for a departure from the standard child support assessment.

The Court analysed the provisions of the *Child Support (Registration and Collection) Act 1988* and relevant case law concerning departure determinations. It found that while the cost of education could be a relevant consideration, the applicants had not demonstrated that the child had special needs that were not adequately met by the existing assessment. The Court concluded that the Registrar's decision was not unreasonable and that no grounds for departure had been established under the Act.

Consequently, the Court set aside the Registrar's decision and substituted it with its own finding that no departure determination should be made.

Orders