Toczek and Thierry (Child support) - [2020] AATA 5565

Toczek and Thierry (Child support) [2020] AATA 5565 (11 November 2020)
DIVISION:  Social Services & Child Support Division
REVIEW NUMBER:  2020/PC019407
APPLICANT:  Ms Toczek
OTHER PARTIES:  Child Support Registrar
Mr Thierry

TRIBUNAL: Member S Hoffman
DECISION DATE: 11 November 2020

DECISION:

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

· From 2 December 2019 to 4 October 2023, Mr Thierry’s adjusted taxable income is varied to $136,000.

3.On 14 April 2020 a senior case officer from the CSA decided that a reason to change the child support assessment had not been established (the original decision). Therefore, there was no change to the assessment.
4.On 23 March 2020, the mother objected to the original decision and on 11 June 2020, an objections officer from the CSA disallowed the objection (the objection decision). He also found that no reason to depart from the administrative assessment had been established. This meant that the child support assessment was unchanged.
5.On 14 July 2020, the mother lodged an application for review with the Administrative Appeals Tribunal (AAT). A directions hearing was held on 30 September 2020 after which directions were issued. The matter was heard on 11 November 2020. Both parties attended via conference telephone and gave sworn evidence.
6.Both parties had made requests to be represented. Paragraph 32(3)(b) of the Administrative Appeals Tribunal Act 1975 sets out that in deciding whether to grant permission for a party to be represented by another person, the tribunal must have regard to the wishes of the parties and the need to protect their privacy.
7.The father requested that he be represented by his father-in-law on the basis that he (the father) was not always able to attend to matters concerning the review, due to work commitments and the nature of his work.[1] The applicant opposed the father’s request as she said she believed the process should be between the parents of the child and not a third party. The mother, who has multiple sclerosis, also asked the tribunal to consider the impact a third person being involved in the hearing could have on her, given her health condition.[2]
[1] According to documents he provided, the father is self-employed as a [Occupation 1]. He said at the hearing that he was now doing more general [work]
[2] The tribunal notes that the father referred to the mother having multiple sclerosis in his submissions and is aware of her medical condition
8.The mother requested she have a representative at the hearing, with the main reason being her health. She was asked to provide medical evidence in support of her request for representation and as this was not done (she submitted proof of her condition rather than evidence specifically addressing why she might need representation at the hearing), her request was denied and the father was informed accordingly. The mother later submitted medical evidence in support of her request to be represented. After this was received, the tribunal granted her request and informed 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: [2020] AATA 5565
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) reviewed a child support assessment concerning a 15-year-old child. The mother had applied for a change of assessment, arguing that the costs associated with the child's special needs significantly affected the cost of maintaining him. The Child Support Registrar had previously decided that no grounds for departure from the administrative assessment were established, and an objection by the mother was also disallowed. The mother subsequently applied to the AAT for a review of these decisions.

The primary legal issue before the AAT was whether a ground existed to depart from the administrative child support assessment, specifically under subparagraph 117(2)(b)(ia) of the *Child Support (Assessment) Act 1989*. This provision allows for departure if, in the special circumstances of the case, the costs of maintaining the child are significantly affected due to the child's special needs. The AAT was required to determine if the costs claimed by the mother for orthodontic work, speech therapy, tutoring, and psychiatric assessments constituted "special needs" and if these costs "significantly affected" the overall cost of maintaining the child.

The AAT considered the definition of "special needs" as encompassing a wide range of necessary or desirable needs beyond the normal needs of a child, and "significantly affected" by reference to the parents' income and the child support rate. The tribunal found that dental costs were not significant enough to warrant departure. While orthodontic work was identified as a potential special need, the mother had not yet incurred these costs and had not provided evidence of the clinical basis for the treatment. Regarding the child's specific learning disorder (SLD), the AAT accepted the diagnoses from two clinicians and found that the child met the criteria for SLD. The tribunal considered out-of-pocket expenses for occupational therapy and psychiatric assessments totalling $465.00 and $259.70 respectively, incurred between July 2019 and February 2020, to be costs associated with the child's special needs that should be taken into account. However, speech therapy costs were not considered as they had not yet been incurred.

The AAT set aside the previous decisions and substituted its own. It determined that a ground for departure was established due to the costs associated with the child's special needs, specifically the occupational therapy and psychiatric assessment expenses. The tribunal then varied Mr Thierry’s adjusted taxable income to $136,000 from 2 December 2019 to 4 October 2023, and ordered that the decision be backdated to the date of the mother's application for a change of assessment.

Orders