Tanden and Hewson (Child support) - [2018] AATA 3288

Tanden and Hewson (Child support) [2018] AATA 3288 (16 July 2018)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2017/MC012768
APPLICANT:  Mr Tanden
OTHER PARTIES:  Child Support Registrar
Miss Hewson

TRIBUNAL:Member S Lewis
DECISION DATE: 16 July 2018
DECISION:

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

·       For the period 7 April 2017 to 31 July 2017, the adjusted taxable income of Mr Tanden is set at $50,000;
·       For the period 1 August 2017 to 31 October 2018, the adjusted taxable income of Mr Tanden is set at $57,000;
·       For the period 7 April 2017 to 27 August 2017, the cost of child amount for [Child 1] is increased by $3,600; and
·       For the period 7 April 2017 to 27 August 2017, the cost of child amount for [Child 2] is increased by $8,216.

CATCHWORDS
Child support - Departure determination - High costs of child care - Income, property and financial resources of the liable parent - Business income - A ground for departure established - Adjusted taxable income of liable parent varied - Cost of children increased - 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 brought by Mr Tanden who disagrees with a decision made by the Department of Human Services, Child Support (the Department).
Miss Hewson and Mr Tanden are the parents of the children, [Child 1] (born March 2011) and [Child 2] (born July 2013). The Department records that Miss Hewson has 99% care of [Child 1] and 100% care of [Child 2] and Mr Tanden has 1% and 0% care respectively. Mr Tanden is the parent liable to pay child support.
On 7 April 2017 Miss Hewson applied to the Department for an increase to the assessed rate of child support on the ground that in the special circumstances of this case:
· the costs of maintaining the children are significantly affected by the high costs of child care; and
· the administrative assessment results in an unjust and inequitable level of child support because of Mr Tanden’s income, property and financial resources.
At the time of the application, Mr Tanden was assessed to pay an annual rate of child support of $1,934.
On 15 June 2017, Mr Tanden lodged a response to the current application. On 27 July 2017, a senior case officer, acting as a delegate of the Child Support Registrar, considered the departure application and determined that for the period 24 May 2017 to 31 October 2018 the adjusted taxable income of Mr Tanden is varied to $44,653.
On 23 August 2017, Mr Tanden objected to this decision. Mr Tanden’s objection was allowed in part…

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 3288
Decision Date: 16 July 2018

CaseChat Overview and Summary

This matter concerned an appeal to the Child Support Appeals Tribunal concerning a departure determination made under the *Child Support (Registration and Collection) Act 1988* (Cth). The applicant, Tanden, sought to vary the assessed child support payable by the respondent, Hewson, on the grounds of the high costs of child care.

The Tribunal was required to determine whether the costs of child care incurred by Tanden constituted a "special circumstance" that justified a departure from the usual child support assessment. Specifically, the Tribunal had to consider whether the income, property, and financial resources of Hewson, including his business income, were such that the existing assessment did not make proper or adequate provision for the child's maintenance.

The Tribunal found that the high costs of child care were indeed a ground for departure. It reasoned that Hewson's adjusted taxable income had been varied, and this variation, when considered alongside the increased costs of the children, meant the original assessment was not adequate. The Tribunal applied the principles of the *Child Support (Registration and Collection) Act 1988* to assess whether the circumstances warranted a departure from the standard assessment.

The decision under review was set aside and substituted, with the Tribunal making a new determination regarding the child support payable.

Orders