Simmonds and Simmonds (Child support) - [2019] AATA 5506

Simmonds and Simmonds (Child support) [2019] AATA 5506 (6 November 2019)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2019/HC017025
APPLICANT:  Ms Simmonds
OTHER PARTIES:  Child Support Registrar
Mr Simmonds

TRIBUNAL:Member A Schiwy
DECISION DATE: 6 November 2019
DECISION:

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

From 1 July 2018 to 30 June 2019 Ms Simmonds’ adjusted taxable income is varied to $90,760;
From 1 July 2019 to 30 September 2020 Ms Simmonds’ adjusted taxable income is varied to $81,300;
From 25 February 2019 to 24 March 2020 the child support liability is increased by $3,200; and
From 25 March 2020 until the case terminates the child support liability is increased by $2,100 per annum.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of both parents – costs of the children include private education – 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 Simmonds and Mr Simmonds are the separated parents of four children. The youngest, [Child 1], is 13 years old. This review is about the child support payable by Mr Simmonds to Ms Simmonds for [Child 1]. (The second youngest child, [Child 2], turned 18 [in] December 2018.)
The Department of Human Services (‘Child Support’) has determined that Ms Simmonds has 100% care of [Child 1].
There have been several departure determinations made since the child support case was registered. The most recent was made on 22 July 2016 and this increased the amount of child support payable to allow for private school fees for two of the children, [Child 3] and [Child 2]. (The eldest child had left school prior to this decision and [Child 1] was in public school.) The determination ended on 31 December 2017.
The administrative assessments issued for 1 January 2018 onwards have been based on the adjusted taxable incomes of both parents. Their 2017-18 adjusted taxable incomes were $68,849 for Ms Simmonds and $84,998 for Mr Simmonds.
On 8 March 2019 Ms Simmonds lodged a departure application with Child Support. The application was made on the basis that the rate of child support payable under the administrative assessment was unfair because of the costs of caring for [Child 1] (orthodontic costs) and the costs of educating [Child 1]. Mr Simmonds ‘cross applied’ on the basis that the rate of child support payable under the administrative assessment was unfair because of Ms Simmonds’ income and financial resources; his need to support his wife; and his need to support [Child 2].
On 30 April 2019 a Child Support case officer decided to make the following departure determination:
· For the period 11 November 2017 until 10 November 2018 Ms Simmonds’ adjusted…

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: [2019] AATA 5506
Decision Date: 6 November 2019

CaseChat Overview and Summary

The case of *Simmonds and Simmonds (Child support)* concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth). The dispute involved the income, property, and financial resources of both parents, and specifically whether the costs associated with the children's private education should be included in the child support assessment. The matter was heard by A Schiwy M.

The primary legal issue before the court was whether to grant a departure from the usual child support assessment formula. This required the court to consider whether the existing assessment was unfair given the particular circumstances of the case, including the financial positions of both parents and the specific costs incurred for the children's education.

In reaching its decision, the court applied the principles governing departure determinations under the *Child Support (Registration and Collection) Act 1988*. The court considered the evidence presented regarding the parents' incomes, assets, and financial resources, as well as the nature and extent of the costs of private education. The court found that the inclusion of these costs was warranted in the circumstances, leading to a departure from the standard assessment.

The court set aside the previous decision and substituted its own orders, reflecting the revised child support assessment that took into account the costs of the children's private education.

Orders