Tatro and Tatro (Child support) - [2023] AATA 1047

Tatro and Tatro (Child support) [2023] AATA 1047 (5 April 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2022/MC025048
APPLICANT:  Mr Tatro
OTHER PARTIES:  Child Support Registrar
Ms Tatro

TRIBUNAL:Senior Member K Dordevic, Presiding Deputy President K Synon
DECISION DATE: 5 April 2023
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that for the period 1 January 2022 until a terminating event occurs in relation to the child [Child 1]:

the annual rate of child support payable by Mr Tatro is varied to $0; and
the annual rate of child support payable by Ms Tatro is varied to $0.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of both parents - costs of the children include private education - 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

The Child Support (Assessment) Act 1989 (the Act) provides for an administrative assessment of the child support payable. It uses a formula which contains variables such as the parents’ adjusted taxable incomes and their percentages of care of the children. The Act also provides for a departure from the administrative assessment in certain circumstances.
Ms Tatro (the mother) and Mr Tatro (the father) are the parents of two children aged 13 and 10 as at the date of hearing. This case was registered with Services Australia – Child Support (the Agency) on 30 September 2019 and was collectable from that date. The children are recorded as being in the parents’ shared care.
The mother lodged a departure application on 6 April 2022. On 10 June 2022 a senior case officer refused the mother’s application. On 13 July 2022 the mother lodged an objection to that decision. On 21 October 2022 an objections officer allowed the objection, determining that for the period 1 October to 31 December 2022 the annual rate payable by the mother and father is varied to $0, and that for the period 1 January 2023 to 31 December 2024 the father’s adjusted taxable income is varied to $85,000 and the mother’s annual rate is reduced by $6,500 per annum.
On 16 November 2022 the father sought further review with the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal). Directions were issued on 23 February 2023 requiring compliance by 5 April 2023. On the same day the Tribunal issued a summons to [Business 1] to produce a copy of the mortgage, personal and other loan applications lodged by the father from 1 January 2021 to present and a copy of all the documentation in which the father has declared/disclosed his historical or current earnings or sources of income.
The hearing took place 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: [2023] AATA 1047
Decision Date: 5 April 2023

CaseChat Overview and Summary

The Deputy President and a Senior Member of the Child Support Appeal Tribunal considered an application for a departure determination concerning child support payments between the parties, referred to as Tatro and Tatro. The dispute centred on whether the existing child support assessment should be varied to take into account the income, property, and financial resources of both parents, and specifically, whether the costs associated with the children's private education should be included in the calculation.

The Tribunal was required to determine whether the circumstances of the case warranted a departure from the standard child support assessment. This involved assessing whether the existing assessment was unfair or unreasonable given the financial positions of both parents and the specific expenses incurred for the children's private schooling. The core legal issue was whether these factors constituted special circumstances that justified an adjustment to the assessed child support amount.

The Tribunal reasoned that the inclusion of private school fees as a component of the children's necessary expenses was a relevant consideration for a departure determination. They applied the principles that child support assessments should reflect the actual costs of raising children, particularly where those costs are significant and agreed upon by the parents. The Tribunal found that the existing assessment did not adequately account for the substantial expenditure on private education, which represented a significant financial commitment for the family. Consequently, the Tribunal set aside the previous decision and substituted its own determination, acknowledging the impact of private school fees on the parents' financial obligations.

Orders