Smithson and Smithson (Child support) - [2018] AATA 4582

Smithson and Smithson (Child support) [2018] AATA 4582 (3 November 2018)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2018/HC013831
APPLICANT:  Ms Smithson
OTHER PARTIES:  Child Support Registrar
Mr Smithson

TRIBUNAL:Member A Schiwy
DECISION DATE: 3 November 2018
DECISION:

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

·         For the period 1 January 2018 to 23 April 2018, Mr Smithson’s adjusted taxable income is varied to $124,500;
·         For the period 24 April 2018 to 31 October 2019, Mr Smithson’s adjusted taxable income is varied to $78,500; and
·         For the period 1 January 2018 to 30 September 2018 Ms Smithson’s adjusted taxable income is varied to $91,425.

CATCHWORDS

CHILD SUPPORT – departure determination – no mutual intent in relation to childrens education – income, property, financial resources and earning capacity of both parents – a ground for departure exists – 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 application for review has been made by Ms Smithson who disagrees with a decision made by the Department of Human Services (‘Child Support’).
Ms Smithson and Mr Smithson are the parents of [Child 1] (born February 2004) and [Child 2] (born in May 2006). A child support case has been registered since May 2015 and Child Support have determined that Ms Smithson has 77% care of [Child 1] and 74% care of [Child 2]; and that Mr Smithson has 23% care of [Child 1] and 26% care of [Child 2].
A departure determination was made in August 2015 and subsequently was reviewed by this tribunal, differently constituted. On 13 September 2016 the tribunal decided to make a departure determination as follows:
· Mr Smithson’s adjusted taxable income is varied to $85,889 for the period 9 July 2015 to 1 November 2015 and then to $97,935 until 31 December 2017; and
· The annual rate of child support payable is decreased by $7,116 for the period 1 January 2015 to 31 December 2015; and by $7,448 for the period 1 January 2016 to 31 December 2016 (50% of school fees).
The administrative assessment following on from the above departure determination is that for the period 1 January 2018 to 30 November 2018 Mr Smithson is assessed to pay the ‘fixed annual rate’ of child support ($2,780 for two children) based on his 2016-17 adjusted taxable income of nil and Ms Smithson’s 2016-17 adjusted taxable income of $68,288.
On 13 October 2017 Ms Smithson applied to Child Support for an increase to the rate of child support payable on the grounds that in the special circumstances of this case:
· the costs of maintaining the children are significantly affected by the…

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: [2018] AATA 4582
Decision Date: 3 November 2018

CaseChat Overview and Summary

This matter concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth) brought by the applicant parent, Smithson, against the respondent parent, also Smithson. The dispute centred on whether a departure from the administrative assessment of child support was warranted, specifically in relation to the costs associated with the children's education. The decision was made by a Senior Member of the Tribunal.

The primary legal issue before the Tribunal was whether a ground for departure existed under section 117 of the Act. This required the Tribunal to consider whether the assessment of child support was likely to be less than the amount it would be if the assessment were made without regard to certain circumstances, including the income, property, financial resources and earning capacity of both parents, and the child's needs. The Tribunal also had to determine whether, if a ground for departure existed, it was just and equitable to depart from the assessment and, if so, what the departure amount should be.

The Tribunal found that there was no mutual intent between the parties regarding the children's education, which was a significant factor. It considered the income, property, financial resources, and earning capacity of both parents, as well as the specific educational needs of the children. Based on these considerations, the Tribunal concluded that a ground for departure did exist. The Tribunal then exercised its discretion to depart from the administrative assessment.

The Tribunal set aside the decision under review and substituted its own decision. The substituted decision involved a departure from the administrative assessment of child support, reflecting the findings made regarding the circumstances of the parties and the children.

Orders