Tyrwhitt and Vough (Child support) - [2022] AATA 4111

Tyrwhitt and Vough (Child support) [2022] AATA 4111 (19 October 2022)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2022/PC024361
APPLICANT:  Mr Tyrwhitt
OTHER PARTIES:  Child Support Registrar
Ms Vough
(previously Ms Tyrwhitt)

TRIBUNAL:Member F Staden
DECISION DATE: 19 October 2022
DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – departure determination – special needs of the child – a ground for departure established – decision under review affirmed

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

Mr Tyrwhitt and Ms Vough are the separated parents of [Child 1], born 2004, and [Child 2], born 2006 (the children). There has been a child support assessment for this case from 10 July 2008 and the parents are recorded as equally sharing the care of the children since at least 2013. The child support assessment for [Child 1] ended on 9 March 2022.
When care of a child is shared, each parent is assessed as having a child support liability to the other, with the lower rate being subtracted from the higher and the parent with the amount remaining is the parent with a child support liability.
Mr Tyrwhitt is the parent liable to pay child support. Ms Vough opted for collection of child support by Services Australia – Child Support (Child Support) from 19 January 2015.
There have been previous change of assessment decisions in this case. The most recent was a 22 January 2021 Child Support primary decision maker decision that increased Mr Tyrwhitt’ annual child support liability for the period 1 January 2021 to 31 December 2021 by $1,768 which was half the annual private school fees costs of the children. Neither party objected to this decision.
At the time of the change of assessment application under review here, the relevant assessments were:
· For the period 1 January 2022 to 9 March 2022, Mr Tyrwhitt’ annual rate of child support liability was $11,266, based on Mr Tyrwhitt’ 2020/21 adjusted taxable income of $119,748 and Ms Vough’s 2020/21 adjusted taxable income of $24,182.
· For the period 10 March 2022 to 30 November 2022, Mr Tyrwhitt’ annual rate of child support liability was $8,889 based on Mr Tyrwhitt’ 2020/21 adjusted taxable income of $119,748 and Ms Vough’s 2020/21 adjusted taxable income of $24,182.
On 3 February 2022, Mr Tyrwhitt applied for a change of assessment on the basis that the costs of maintaining [Child 2] were significantly affected by the costs associated with meeting his special needs, specifically orthodontic costs (Reason 2).
On 8 March 2022, Ms Vough responded to Mr Tyrwhitt’ change of assessment application and also lodged a cross application on the grounds of the extra costs involved in caring for, educating, training a child in the way both…

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: [2022] AATA 4111
Decision Date: 19 October 2022

CaseChat Overview and Summary

The case of *Tyrwhitt and Vough* concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth). The dispute involved the parents' obligations regarding child support, with the applicant seeking a departure from the usual assessment to account for the special needs of the child. The matter was heard by F Staden M.

The primary legal issue before the court was whether the special needs of the child constituted a ground for departure from the standard child support assessment. This required the court to consider the criteria set out in the relevant legislation for making such a determination and to assess whether the evidence presented satisfied those criteria.

In reaching its decision, the court affirmed the existence of a ground for departure due to the special needs of the child. The reasoning applied focused on the specific circumstances of the child and the financial impact of those needs on the custodial parent. The court applied the principles governing departure determinations, weighing the evidence of the child's special requirements against the legislative framework. The decision under review was affirmed.

Orders