Sears and Alston (Child support) - [2019] AATA 4861

Sears and Alston (Child support) [2019] AATA 4861 (10 September 2019)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2019/MC015768
APPLICANT:  Ms Sears
OTHER PARTIES:  Child Support Registrar
Mr Alston

TRIBUNAL:Member P Noonan
DECISION DATE: 10 September 2019
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that:

·From 1 January 2018 until 31 December 2018 the annual rate of child support payable by Mr Alston is varied by increasing it by $5,046.
·From 1 January 2019 until 31 December 2019 the annual rate of child support payable by Mr Alston is varied by increasing it by $5,940.
·From 1 January 2020, until a terminating event occurs with respect to the eldest child of the assessment, the annual rate of child support payable by Mr Alston is varied by an annual increase of 8% with respect to the varied amount from the previous calendar year.

CATCHWORDS

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

Ms Sears and Mr Alston are the parents of two children who constitute the children of this child support assessment.
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.
A child support case was first registered with the Department of Human Services (the Department) on 8 December 2005 and child support is registered for collection by the Department. Care of the children is registered as being 281 nights per year to Ms Sears and 84 nights per year to Mr Alston.
On 8 August 2018 Ms Sears applied for a departure from the assessment of child support payable at that time. The applicable assessment at that time was:
· For the period 1 August 2018 to 27 August 2018 Mr Alston is assessed to pay an annual rate of child support of $8,206. This assessment is calculated using a 2017–18 deemed income of $69,881 for Mr Alston and a 2017–18 taxable income of $nil for Ms Sears.
On 3 November 2018 a Department officer, acting as a delegate of the Child Support Registrar, found that a ground for departure was established and decided to depart from the assessment in the following terms:
· That during the period 1 January 2018 to 31 December 2018 the annual rate of child support payable by Mr Alston is increased by $8,462 as his…

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 Sears and Alston (Child support)

Details

AGLC: Sears and Alston (Child support) [2019] AATA 4861
Case: [2019] AATA 4861
Decision Date: 10 September 2019

CaseChat Overview and Summary

This matter concerned an appeal by the father, Sears, against a departure determination made by the Registrar of the Child Support Agency, which had been affirmed by the court below. The dispute centred on the costs of the children's education, specifically whether these costs were significantly affected by the manner in which both parents expected the children to be educated. The appeal was heard by P Noonan M.

The primary legal issue before the court was whether the Registrar had erred in making the departure determination. This required the court to consider whether the costs of the children's education were significantly affected by the manner in which both parents expected them to be educated, as contemplated by section 117(2)(a)(i) of the Child Support (Registration and Collection) Act 1988.

P Noonan M reasoned that the Registrar’s decision had failed to adequately consider the evidence regarding the parents' respective expectations for the children's education and the impact of those expectations on the costs. The court applied the principles of section 117(2)(a)(i), emphasising that a significant effect on costs must be demonstrated, and that this requires a careful assessment of both parents' expressed or implied expectations. The court found that the Registrar had not properly applied this test.

The court set aside the decision under review and substituted its own determination.

Orders