Tatro and Arterton (Child support) - [2021] AATA 2726

Tatro and Arterton (Child support) [2021] AATA 2726 (12 May 2021)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2020/MC020317
APPLICANT:  Miss Tatro
OTHER PARTIES:  Child Support Registrar
Mr Arterton

TRIBUNAL:Member W Budiselik
DECISION DATE: 12 May 2021
DECISION:

The tribunal sets aside the decision under review and substitutes its Decision that:

for the period 1 July 2020 to 30 September 2021, Miss Tatro’s adjusted taxable income is varied to $105,139 and Mr Arterton’s adjusted taxable income is varied to $80,648;
in the period 1 October 2020 to 30 September 2021, the annual rate of child support payable by the mother is increased by $3,048.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of both parents – benefits derived from business – cost of school fees – whether mutual intention existed to educate the child in particular manner – 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 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

Miss Tatro (the applicant/mother) and Mr Arterton (the father) are the parents of [Child 1] (the child) (born January 2006). An administrative assessment of child support has been in place between the parents in respect of the child since 5 December 2006. Services Australia (the Agency) records the child as being in the father’s care for 100% of the time since 15 April 2020. Prior to 15 April 2020, the Agency records the child as being in the mother’s primary care and the father’s regular care. Prior to 15 April 2020, the father paid the mother child support. Since 15 April 2020, the mother pays the father child support.
On 27 May 2020, the father lodged an application with the Agency to depart from the administrative assessment of child support. In his application the father cited the grounds for departure from the administrative assessment as: the child’s special needs and the extra costs in caring for, educating or training the child in the way both parents intended. On 6 April 2020, the father withdrew the ground related to the child’s special needs.
The tribunal notes that the father’s application for the departure determination is dated 27 June 2020. However, the application was received by the Agency on 27 May 2020. The tribunal concluded the father had misdated his application.
At the time the father lodged his change of assessment application the father’s 2018/2019 adjusted taxable income (ATI) was recorded by the Agency as $70,648 and the mother’s 2018/2019 ATI was recorded by the Agency as $104,818. When the child was in the mother’s primary care the father’s child support liability was assessed as $3,422. After the child relocated to the father’s care, from 15 April 2020, the mother’s child support liability was assessed as $11,248. Subsequently, the…

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: [2021] AATA 2726
Decision Date: 12 May 2021

CaseChat Overview and Summary

The case of Tatro and Arterton concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth). The dispute involved the income, property, and financial resources of both parents, specifically focusing on benefits derived from a business and the cost of school fees. The decision under review was made by the Child Support Registrar.

The primary legal issue before the court was whether the Registrar had erred in their decision regarding the departure determination. This required the court to consider whether the Registrar had correctly assessed the financial circumstances of both parents, including the benefits they derived from a business, and whether these factors warranted a departure from the standard child support assessment. A key element of this assessment was whether a mutual intention existed between the parents to educate the child in a particular manner, and if so, whether this intention should influence the child support payable.

The court's reasoning focused on the principles governing departure determinations, particularly in relation to the financial resources of the parents and the specific costs associated with the child's education. The court examined the evidence presented regarding the business benefits and the school fees, and critically assessed whether these elements supported a departure from the statutory formula. The court found that the Registrar's decision had not adequately considered all relevant factors, including the mutual intention regarding the child's education.

Consequently, the court set aside the decision under review and substituted its own determination.

Orders