Torbett and Elliot (Child support) - [2023] AATA 3408

Torbett and Elliot (Child support) [2023] AATA 3408 (2 August 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/SC025577
APPLICANT:  Ms Torbett
OTHER PARTIES:  Child Support Registrar
Mr Elliot

TRIBUNAL:Member M Martellotta
DECISION DATE: 2 August 2023
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides to vary the administrative assessment in the following terms:

For the period 21 March 2022 to 30 June 2024 Mr Elliot’s adjusted taxable income is varied to $110,000.
Mr Elliot’s annual rate of child support is increased by $3,354 for the period 1 January 2022 to 31 December 2022 (to reflect 50% contribution towards the children’s education costs).
Mr Elliot’s annual rate of child support is increased by $4,945 for the period 1 January 2023 to 31 December 2023 (to reflect 50% contribution towards the children’s education costs).

CATCHWORDS

CHILD SUPPORT – departure determination – costs of education - manner expected by both parents - cost of maintaining the children are significantly affected – a ground for departure established - 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

Ms Torbett and Mr Elliot are the parents of two children[1] who are currently children for the purposes of the administrative assessment of child support. Mr Elliot is the parent liable to pay child support. Ms Torbett is recorded as having primary care of the children.
[1] Born [in 2010 and 2012]
On 21 March 2022 Ms Torbett lodged a change of assessment application with Services Australia – Child Support. Her application was on the grounds of reasons 3, 8A and 8B.
These grounds refer to the following:
Reason 3 requires Ms Torbett to establish that the costs of maintaining the children are significantly affected by the costs of caring for, educating or training the children in a manner expected by the parents.
Reasons 8A and 8B require Ms Torbett to establish that there is a ground to depart from the assessment due to Mr Elliot’s income, financial resources, property and earning capacity.
At the time of Ms Torbett’s application the administrative assessment in place for the child support period 21 March 2022 to 31 October 2022 was based on Mr Elliot’s 2020/21 adjusted taxable income of $28,789 and Ms Torbett’s 2020/21 adjusted taxable income of $67,937. This resulted in a nil annual liability.
An original Child Support decision maker found grounds were established (reasons 3 and 8A) and departed from the assessment by fixing the annual rate of child support liability at $21,092 for the period 14 April 2022 to 31 December 2023. Mr Elliot objected. His objection was allowed in part and a new decision made on 12 August 2022 decided that:
·For the period 21…

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.

Continue reading Torbett and Elliot (Child support)

Details

AGLC: Torbett and Elliot (Child support) [2023] AATA 3408
Case: [2023] AATA 3408
Decision Date: 2 August 2023

CaseChat Overview and Summary

This matter concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth) by the respondent parent, Mr Elliot, against a child support assessment made in favour of the applicant parent, Ms Torbett. The dispute centred on whether the costs of the children's education should be considered in a departure from the standard child support assessment.

The primary legal issue before the court was whether the costs associated with the children's education constituted a ground for departure from the child support assessment, specifically under the limb of the legislation concerning the "manner in which the children are expected to be cared for, educated and trained". The court was required to determine if these educational costs significantly affected the costs of maintaining the children.

The court found that the costs of the children's education were a significant factor in the overall cost of maintaining them, and that this was a manner in which both parents had expected the children to be cared for and educated. Consequently, the court determined that a ground for departure was established. The decision under review was therefore set aside and substituted with a new determination that took into account the educational expenses.

Orders