Sergeant and Sergeant (Child support) - [2023] AATA 3749

Sergeant and Sergeant (Child support) [2023] AATA 3749 (21 September 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/BC026205
APPLICANT:  Mr Sergeant
OTHER PARTIES:  Child Support Registrar
Ms Sergeant

TRIBUNAL:Member S Letch
DECISION DATE: 21 September 2023
DECISION:

The decision under review is varied so that Mr Sergeant’s adjusted taxable income is varied to $160,000 for the period 8 September 2022 to 31 December 2024.

CATCHWORDS

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

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

Mr Sergeant and Ms Sergeant are the parents of [the child], born April 2010. [The child] is recorded as being in the 95% care of Ms Sergeant. Mr Sergeant seeks a review of an objection decision by Child Support which “partly allowed” an objection by him to a “change of assessment” decision of 19 January 2023.
By way of background, it is convenient to set out some extracts from the objections officer’s decision dated 23 May 2023:
…
The assessment
At the time Mrs Sergeant lodged her change of assessment application the following assessments
were in place:
For the period 1 September 2022 to 31 January 2023, Mr Sergeant was assessed to pay Mr Sergeant $1,855 per annum. This was based on Mr Sergeant’s 2022-2023 estimated income of $30,519 and Mrs Sergeant’s 2021-2022 adjusted taxable income of $178,727. The annual rate payable has been set under a prior change of assessment (COA) decision. On 6 June 2022 Decision Maker [A] found Reason 2 established and made the following decision:
For the period 1 February 2022 to 31 January 2023, the annual rate otherwise payable by Mr
Sergeant shall increase by $1,855.
It is noted that at the time of Mrs Sergeant’s COA application, errors were found to have occurred
across multiple periods. These matters were escalated and have now been addressed. The
assessments currently in place are accurate.
…
The decision as set by DM [B] dated 16 December 2020 is not varied under this process and is to remain in place.
On 19 January 2023, Decision Maker (DM) [C] found Reasons 3 and 8A in Mrs Sergeant's
application established and changed the assessment as follows:
The decision as set by DM [B] dated 16 December 2020 is not varied under this process and is to remain in place.
The decision as set by DM [A] dated 6 June 2022 is not varied under this decision and is to remain in place.
For the period 1 January 2023 to 31 December 2023, the rate of child support payable by
Mr Sergeant shall be increase…

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 3749
Decision Date: 21 September 2023

CaseChat Overview and Summary

The matter of *Sergeant and Sergeant (Child Support)* concerned an application to the court for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth). The applicant sought to vary a child support assessment, arguing that the costs of the child's education significantly affected the parents' financial circumstances in a way not contemplated by the standard assessment.

The primary legal issue before the court was whether the costs associated with the child's education constituted a ground for departure from the child support assessment. Specifically, the court had to determine if these educational costs were of a nature and amount that were expected by both parents and if they significantly affected the capacity of either parent to support the child.

The court considered the evidence presented regarding the nature and cost of the child's education, assessing whether it aligned with the expectations of both parents at the time of separation. The court applied the principles outlined in the *Child Support (Registration and Collection) Act 1988*, focusing on the grounds for departure, particularly the impact of specific costs on the parents' financial positions. The court found that the evidence established that the costs of the child's education did significantly affect the parents' circumstances in a manner not contemplated by the standard assessment.

Consequently, the court varied the child support assessment to reflect the additional costs associated with the child's education.

Orders