Sidney and Brackman (Child support) - [2024] AATA 798

Sidney and Brackman (Child support) [2024] AATA 798 (29 February 2024)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/PC026658
APPLICANT:  Mr Sidney
OTHER PARTIES:  Child Support Registrar
Ms Brackman

TRIBUNAL:Senior Member R Ellis
DECISION DATE: 29 February 2024
DECISION:

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

for the period from 5 May 2023 to 30 June 2023 the adjusted taxable income of Mr Sidney is varied to $125,484; and
for the period from 1 July 2023 to 31 March 2025 the adjusted taxable income of Mr Sidney is varied to $84,034.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the parents – school fees - a ground for departure established – decision to depart - 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 review is about whether or not there should be a departure from the administrative assessment of child support.
Mr Sidney and Ms Brackman are the parents of [Child 1] (born October 2014), [Child 2] (born January 2017) and [Child 3] (born May 2019). There has been a child support assessment in place since 5 March 2022 and Mr Sidney is the liable parent under the assessment.
The following administrative assessments are under consideration:
·     for the period from 1 September 2022 to 4 May 2023 Mr Sidney was assessed to pay an annual rate of $26,391 based on a 2021-22 adjusted taxable income of $127,755 for Mr Sidney and a 2021-22 adjusted taxable income for Ms Brackman of $18,593;
·     for the period from 5 May 2023 to 30 June 2023 Mr Sidney was assessed to pay an annual rate of $9,609 based on a 2022-23 estimated adjusted taxable income of $62,649 for Mr Sidney and a 2021-22 adjusted taxable income for Ms Brackman of $18,593; and
·     for the period from 1 July 2023 to 31 October 2023 Mr Sidney was assessed to pay an annual rate of $26,391 based on a 2021-22 adjusted taxable income of $127,755 for Mr Sidney and a 2021-22 adjusted taxable income for Ms Brackman of $18,593.
On 31 January 2023 Ms Brackman applied to Services Australia – Child Support (Child Support) for a change to the assessment on the basis of the special needs of the child (the ground more commonly known as Reason 2), the high costs of caring for, educating or training the child (Reason 3) and a parent’s income, property and financial resources or earning capacity (Reasons 8A and 8B).
On 16 May 2023 Child Support made the decision to change the assessment (the original decision) so that:
· for the period from 5 March 2022 to 31 August 2022 the income…

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 Sidney and Brackman (Child support)

Details

AGLC: Sidney and Brackman (Child support) [2024] AATA 798
Case: [2024] AATA 798
Decision Date: 29 February 2024

CaseChat Overview and Summary

This matter concerned an application by the father, Sidney, for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth) concerning the child support assessment for his child with the mother, Brackman. The dispute centred on whether the father's payment of private school fees for the child constituted a ground for departure from the standard assessment.

The primary legal issue before the court was whether the child support assessment should be departed from, pursuant to section 117 of the Act, on the basis that the father's payment of private school fees was an expense that should be taken into account. Specifically, the court had to determine if the payment of these fees was an amount that the child support payer (Sidney) was required to pay, or had agreed to pay, for the child's education, and if this obligation or agreement was not already adequately reflected in the assessment.

The court reasoned that the payment of private school fees by the father was a significant expense that was not adequately reflected in the standard child support assessment. It applied the principles outlined in the *Child Support (Registration and Collection) Act 1988*, considering the father's financial capacity and the nature of the expense. The court found that the father had established a ground for departure under section 117(2)(a) of the Act, as the payment of school fees represented a necessary expense for the child's upbringing that was not otherwise accounted for in the assessment.

The court set aside the original child support assessment and substituted it with a new assessment that took into account the father's contribution towards the private school fees.

Orders