Stebbins and Kolberg (Child support) - [2021] AATA 4497

Stebbins and Kolberg (Child support) [2021] AATA 4497 (17 September 2021)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2021/MC021533
APPLICANT:  Mr Stebbins
OTHER PARTIES:  Child Support Registrar
Ms Kolberg

TRIBUNAL:Member S Brakespeare
DECISION DATE: 17 September 2021
DECISION:

The decision under review is varied so that there is a departure determination in the following terms:

for the period 1 January 2021 to 31 December 2021 the annual child support otherwise payable by Mr Stebbins is increased by $1,456 (in recognition of [Child 1’s] special needs costs); and
for the period 1 January 2021 to 31 December 2022 the annual child support otherwise payable by Mr Stebbins is increased by an amount of $1,694 per annum (in recognition of the children’s independent school tuition fees).

CATCHWORDS

CHILD SUPPORT – departure determination – costs of education – manner expected by both parents – special needs of the child – orthodontic treatment – costs of maintaining the children are significantly affected – 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 Stebbins is the parent liable to pay child support to Ms Kolberg in respect of their children [Child 2] who is 10 and [Child 1] who is 9.
On 13 December 2020 Ms Kolberg lodged an application for a change assessment on grounds relating to the special needs of the children and extra costs of caring for, educating or training the children in a way that both parents intended.
On 10 February 2021 an officer of the Child Support Agency refused to make a departure determination (the original decision). Ms Kolberg lodged an objection to the original decision. On 18 May 2021 an objections officer allowed the objection and made a departure determination in the following terms (the objection decision):
· for the period 1 January 2021 to 31 December 2021 annual child support otherwise payable by Mr Stebbins is increased by $885 in recognition of [Child 1’s] special needs costs; and
· for the period 1 January 2021 to 31 December 2022 the annual child support otherwise payable by Mr Stebbins is increased by an amount of $1,694 per annum in recognition of the children’s independent school tuition fees.

Mr Stebbins lodged an application for review of the objection decision with the tribunal. A telephone directions hearing was convened on 13 August 2021. Both parties participated. A hearing was held on 17 September 2021. Mr Stebbins and Ms Kolberg gave evidence on affirmation to the tribunal via conference telephone. The Child Support Agency provided the tribunal and the parties with a bundle of papers relevant to the review (210 pages). The tribunal gathered extra papers from the parties and exchanged them prior to the hearing (folios A1 to A72 and B1…

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 Stebbins and Kolberg (Child support)

Details

AGLC: Stebbins and Kolberg (Child support) [2021] AATA 4497
Case: [2021] AATA 4497
Decision Date: 17 September 2021

CaseChat Overview and Summary

The matter of *Stebbins and Kolberg* concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth). The applicant sought to vary an existing child support assessment, arguing that the costs of the children's education and orthodontic treatment significantly affected the costs of maintaining the children in a manner that was expected by both parents. The decision was made by M S Brakespeare.

The primary legal issue before the court was whether the costs associated with the children's education and orthodontic treatment constituted special circumstances that warranted a departure from the standard child support assessment. This required the court to consider whether these costs were incurred in a manner that was expected by both parents and whether they significantly affected the costs of maintaining the children.

The court reasoned that the costs of private education and necessary orthodontic treatment, when considered together, could indeed represent special circumstances that significantly impacted the costs of maintaining the children. The court applied the principles of the *Child Support (Registration and Collection) Act 1988* concerning departure determinations, focusing on whether the expenses were reasonable and aligned with the parents' expectations. The court found that the evidence supported the applicant's claim that these costs were substantial and had not been adequately accounted for in the existing assessment.

The decision under review was varied to reflect the additional costs incurred by the applicant for the children's education and orthodontic treatment.

Orders