Tanna and Tanna (Child support) - [2019] AATA 5119

Tanna and Tanna (Child support) [2019] AATA 5119 (5 September 2019)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2019/SC016052
APPLICANT:  Ms Tanna
OTHER PARTIES:  Child Support Registrar
Mr Tanna

TRIBUNAL:Member F Staden
DECISION DATE: 5 September 2019
DECISION:

The tribunal varied the decision under review such that:

The 30 June 2016 change of assessment decision in relation to Reason 3 only ends on 31 December 2016; and
Mr Tanna’s adjusted taxable income is varied to $55,000 a year for the period 1 July 2018 to 31 October 2021.

CATCHWORDS

CHILD SUPPORT – departure determination – financial resources of both parents - costs of education - manner expected by both parents - cost of maintaining the children are significantly affected – a ground for departure exists – decision to depart - decision under review varied

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

Ms Tanna and Mr Tanna are the separated parents of [Child 1], born 2005, [Child 2] born 2006 and [Child 3], born 2008 (the children). From 29 November 2017 to 9 July 2019, Ms Tanna was assessed as providing 64% of the care for each of the children and Mr Tanna as providing 36% of that care. Since 10 July 2019, Ms Tanna has been assessed as having 100% care of the children.
There has been a child support assessment for this case from 25 January 2012. Mr Tanna is the parent liable to pay child support. Ms Tanna opted for collection of child support by the Department of Human Services – Child Support (the Department) from 14 August 2012, with arrears requested from 27 July 2012.
Relevantly here, on 30 June 2016, a delegate of the Child Support Registrar decided to:
·     Set Mr Tanna’s adjusted taxable income at $69,718 for the period 9 May 2016 to 30 June 2018;
·     Increase Mr Tanna’s annual rate of child support by $6,535 for the period 9 May 2016 to 31 December 2016;
·     Increase Mr Tanna’s annual rate of child support by $6,862 for the period 1 January 2017 to 31 December 2017; and
·     Increase Mr Tanna’s annual rate of child support by $7,205 for the period 1 January 2018 to 31 December 2018.
Neither party objected to this decision.
On 22 June 2018, Mr Tanna applied for a change of assessment on the basis of the high costs of spending time with or communicating with the children (Reason 1), extra costs in caring for, educating or training the children in the way both parents intended (Reason 3) and the child support assessment not correctly reflecting his or Ms Tanna’s income, property and/or financial resources (Reason 8A) or his earning capacity (Reason 8B).
Child support assessments issued by the Department on…

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: [2019] AATA 5119
Decision Date: 5 September 2019

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, Tanna, against the respondent parent, also Tanna. The dispute centred on the child support payable for the parties' children, with the applicant seeking a variation of the assessed amount. The decision was made by the court.

The primary legal issue before the court was whether a ground for departure existed under section 117 of the *Child Support (Registration and Collection) Act 1988*. Specifically, the court had to determine if the costs of educating the children, in the manner expected by both parents, were significantly affected by the financial resources of both parents, thereby justifying a departure from the standard assessment.

The court reasoned that the financial resources of both parents were relevant to the determination of child support. It found that the costs associated with the children's education, reflecting the expectations of both parents, were indeed significantly affected by these financial resources. Consequently, the court concluded that a ground for departure existed. The court then exercised its discretion to depart from the assessment.

The court made a decision to depart from the child support assessment and varied the decision under review accordingly.

Orders