Tancoch and Tancoch (Child support) - [2025] ARTA 505

Tancoch and Tancoch (Child support) [2025] ARTA 505 (27 February 2025)

Applicant/s: Mr Tancoch

Respondent: Child Support Registrar

Other Parties: Ms Tancoch

Tribunal Number: 2024/MC028190
Tribunal: General Member M Martellotta
Place:Perth
Date:27 February 2025
Decision:The Tribunal affirms the decision under review.

CATCHWORDS
CHILD SUPPORT – departure determination – mother’s earning capacity – change of employment – costs of maintaining children – education of two oldest children in manner expected by parents – father paying full cost and children’s health insurance – higher income and proportionately lower expenses – unresolved family law negotiations and binding child support agreement – decision under review affirmed

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 pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.

Statement of Reasons

BACKGROUND

Mr Tancoch and Ms Tancoch are the parents of three children.[1] According to Services Australia (Child Support) the child support assessment case was registered on 6 March 2022 and is collected by Child Support as from 6 April 2023. Other particulars include that Mr Tancoch is determined to have 39% care and Ms Tancoch 61% care of the children. Mr Tancoch is assessed as the parent liable to pay child support.
[1] Born 21 July 2009 (15 years at date of hearing) 16 February 2011 (13 years at date of hearing) and 30 September 2013 (11 years at date of hearing).
This application for review concerns a change of assessment decision. According to Child Support there have been previous change of assessment applications applied to this case. A previous departure from the administrative assessment was decided on objection on 21 September 2023 whereby the assessment was varied so that for the period 1 May 2023 to 30 November 2023 Ms Tancoch’s adjusted taxable income (ATI) was varied to $79,000.[2] The Tribunal observes that Mr Tancoch did not seek further review of that objection decision.
[2] Hearing papers (HP) at page 118
On 30 November 2023 Mr Tancoch applied for a change of assessment. His grounds being Reasons 8A and 8B – namely the assessment did not correctly reflect Ms Tancoch’s income, property and financial resources or her earning capacity.[3] His application also referenced Reason 3 (costs in caring, education or training the children in a manner intended by both parents). Mr Tancoch’s application to Child Support raised the following issues:
a)Ms Tancoch has a greater earning capacity as she was previously (in February 2021) engaged in full-time employment, but her hours were reduced following January 2022 when she was stood down for not complying with the COVID-19 vaccination policy of her employer.
b)Ms Tancoch failed to disclose new employment commenced after 30 June 2022 and the previous change of assessment utilised an incorrect ATI from her new employment.
c)He meets all the education costs both private and public for all children as well as their medical costs which is in…

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: [2025] ARTA 505
Decision Date: 27 February 2025

CaseChat Overview and Summary

The matter before the Tribunal is a review of a decision of the Child Support Registrar (the Registrar) to vary the assessment of child support payable by Mr Tancoch. The Tribunal was required to determine whether a ground for a change of assessment existed and whether it was just and equitable to make a particular departure determination. The Tribunal also had to consider whether it was otherwise proper to make a particular departure determination. The Tribunal concluded that a ground for a change of assessment existed and that it was otherwise proper to make a particular departure determination. However, the Tribunal concluded that a departure in terms which required Ms Tancoch to contribute to the children’s private education costs would not be just and equitable. The Tribunal accordingly affirmed the decision under review.The Tribunal found that a ground to depart from the administrative assessment exists because the costs of maintaining the children are significantly affected because the children are being educated in the manner intended by the parents. The Tribunal found that the children are being educated in the manner expected by the parents. The Tribunal concluded that the education costs significantly affect the costs of maintaining the children. The Tribunal concluded that a ground to depart is established.The Tribunal found that it was not just and equitable to make a particular departure determination in terms which required Ms Tancoch to contribute towards the children’s private education costs. The Tribunal concluded that Mr Tancoch has the financial capacity to meet the costs of education in addition to periodic child support as assessed. The Tribunal also took into account relevant Child Support policy that where court proceedings are likely to affect child support the Registrar may consider it not fair to change the assessment when such proceedings are in progress. The Tribunal concluded that a departure in terms which requires Ms Tancoch to contribute towards the costs of education would not be just and equitable. The Tribunal concluded that a departure in terms as currently expressed remains undisturbed.The Tribunal concluded that it was otherwise proper to make a particular departure determination. The Tribunal took into account whether the proposed departure was proper in the context of public interest and welfare expenditure of the community. The Tribunal concluded that a departure in these terms may result in a change in the level of welfare expenditure of the community and was otherwise proper to make a particular departure determination.

Orders