Scamander and Pasley (Child support) - [2018] AATA 3209

Scamander and Pasley (Child support) [2018] AATA 3209 (13 June 2018)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2017/BC012460
APPLICANT:  Miss Scamander
OTHER PARTIES:  Child Support Registrar
Mr Pasley

TRIBUNAL:Member S Lewis
DECISION DATE: 13 June 2018
DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that no departure determination is made.

CATCHWORDS
Child support – Departure determination – Child being educated in the manner expected by the parents – Costs of maintaining the child not significantly affected by education costs – Income, property and financial resources of the liable parent – Income from a discretionary trust – Payment of liable parent’s expenses by his father a financial resource – No ground for departure – 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

This application for review has been brought by Miss Scamander who disagrees with a decision made by the Department of Human Services, Child Support (the Department).
Miss Scamander and Mr Pasley are the parents of the children, [Child 1] (born September 2008) and [Child 2] (born August 2012). The Department records that Miss Scamander currently has 78% care of the children and Mr Pasley has 22%. This change in care came into effect on 20 March 2017. Prior to that, Mr Pasley had a care percentage of 0%. Mr Pasley is the parent liable to pay child support.
On 14 October 2016 Mr Pasley applied to the Department for a decrease to the assessed rate of child support on the ground that in the special circumstances of this case the administrative assessment results in an unjust and inequitable level of child support because of his income, property and financial resources. At the time of his application, Mr Pasley was assessed to pay an annual rate of child support of $16,944. Mr Pasley’s adjusted taxable income, used in the administrative assessment, was derived from a departure determination made on 17 March 2016; a senior case officer decided that for the period 6 January 2016 to 31 January 2018 Mr Pasley’s adjusted taxable income was varied to $96,000. Mr Pasley’s application of 14 October 2016 was refused on 29 November 2016 on the basis that there had been no change in his circumstances. Neither the decision of 17 March 2016 nor the decision of 29 November 2016 is under review by the tribunal. Mr Pasley has taken action in the Federal Circuit Court seeking orders in relation to child support for the period 6 January 2016 to 31 December 2019. No orders had been made at the date of hearing.
On 5 December 2016, in responding to Mr Pasley’s application, Miss Scamander lodged a further application for a change of assessment. Miss…

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 Scamander and Pasley (Child support)

Details

AGLC: Scamander and Pasley (Child support) [2018] AATA 3209
Case: [2018] AATA 3209
Decision Date: 13 June 2018

CaseChat Overview and Summary

The matter of *Scamander and Pasley* concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth). The applicant sought to vary the child support assessment, arguing that the costs of the child's education were not being adequately met by the existing assessment. The decision was made by S Lewis M in the relevant court.

The primary legal issue before the court was whether the circumstances of the case met the criteria for a departure determination. Specifically, the court had to consider whether the child was being educated in the manner that would have been expected by the parents, and whether the costs of this education had significantly affected the costs of maintaining the child. Furthermore, the court was required to assess the income, property, and financial resources of the liable parent, including income derived from a discretionary trust and payments made by the liable parent's father for the liable parent's expenses, to determine if these constituted financial resources relevant to the departure application.

S Lewis M found that there was no ground for a departure determination. The court reasoned that the child was being educated in the manner expected by the parents and that the costs of this education had not significantly affected the costs of maintaining the child. The court also considered the liable parent's financial resources, including income from a discretionary trust and the financial support provided by his father, but concluded that these did not warrant a departure from the assessment.

Consequently, the decision under review was set aside and substituted with a new decision that no departure determination should be made.

Orders