Stinson and Gilpin (Child support) - [2018] AATA 2287

Stinson and Gilpin (Child support) [2018] AATA 2287 (24 April 2018)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER: 2017/CC012399

APPLICANT: Miss Stinson

OTHER PARTIES: Child Support Registrar

Mr Gilpin

TRIBUNAL: Member M Douglas

DECISION DATE: 24 April 2018

DECISION:

The Tribunal sets aside the decision under review and substitutes the decision by:

· varying the adjusted taxable income for Mr Gilpin to $62,000 for the period 1 January 2017 to 30 June 2017 and to $55,000 for the period 1 July 2017 to 31 December 2018; and
· varying the costs of the children such that they are increased by $1,747 for the period 1 January 2017 to 31 December 2017 and by $1,344 for the period 1 January 2018 to 31 December 2018.

CATCHWORDS
Child support - Departure determination - Costs of education - Mutual expectation established - Financial resources of parents - 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

The parties

The parties to this proceeding are Mr Gilpin, Miss Stinson and the Child Support Registrar. Mr Gilpin and Miss Stinson are the parents of [Child 1] and [Child 2], in regards to whom the Registrar has made an administrative assessment of child support that obligates Miss Stinson to pay child support for the children to Mr Gilpin.
The Registrar acts through the Department of Human Services (the Department), and hereafter the Tribunal's reference to the Department is to be taken as a reference to the Registrar.

The background to the decision being reviewed

On 2 November 2016, Miss Stinson applied to the Department under section 98B of the Child Support (Assessment) Act1989 (the Act) for a departure from the provisions of the Act relating to an administrative assessment. The Department describes an application of this type as a "change of assessment" application and the decision it makes on such an application as a "change of assessment" decision, and to avoid confusion the Tribunal shall adopt the same terminology.
In support of her change of assessment application, Miss Stinson relied on the ground provided in subparagraph 117(2)(c)(ia) of the Act, which ground the Department describes as reason 8A.
Mr Gilpin opposed Miss Stinson’ application and, indeed, made his own change of assessment application on 3 January 2017, relying on the ground provided in subparagraph 117(2)(b)(ii). The Department refers to this ground as reason 3.
On 6 February 2017, in response to these applications, the Department made a change of assessment decision that increased Mr Gilpin’s adjusted taxable income to $122,909 for the period 1 January 2017 to 31 January 2019 and increased Miss Stinson’ annual child support assessment by $874.
Mr Gilpin objected to that decision and on 1 May 2017, the Department…

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 2287
Decision Date: 24 April 2018

CaseChat Overview and Summary

The case of *Stinson and Gilpin* concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth). The applicant sought to vary the child support assessment to include the costs of private education for the child. The dispute centred on whether the parents had a mutual expectation that the child would receive a private education and whether the financial resources of both parents supported such an expectation. The matter was heard by Member Douglas M.

The primary legal issue before the court was whether the existing child support assessment should be departed from to account for the costs of private schooling. This required the court to consider two key elements: firstly, the existence of a mutual expectation between the parents that the child would attend a private school, and secondly, the capacity of both parents to meet the financial obligations associated with such an education, taking into account their respective financial resources.

Member Douglas M found that a mutual expectation for the child to attend a private school had been established. The court considered the parents' past conduct and communications, which indicated a shared understanding and intention regarding the child's education. Furthermore, the court assessed the financial circumstances of both Stinson and Gilpin, determining that their financial resources were sufficient to support the costs of private education. Applying the principles of the *Child Support (Registration and Collection) Act 1988*, the court concluded that the departure provisions were enlivened.

The decision under review was set aside and substituted with a new determination that included the costs of the child's private education.

Orders