Walle and Whibley (Child support) - [2021] AATA 4802

Walle and Whibley (Child support) [2021] AATA 4802 (26 October 2021)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2021/CC021147
APPLICANT:  Dr Walle
OTHER PARTIES:  Child Support Registrar
Ms Whibley

TRIBUNAL:Member M Douglas
DECISION DATE: 26 October 2021
DECISION:

The decision under review is varied so that it reads as follows:

The annual rate of child support payable by Ms Whibley is varied by reducing it as follows:
·$2,521 for the period 1 July 2020 to 31 December 2020;
·$5,834 for the period 1 January 2021 to 31 October 2021;
·$1,200 for the period 1 November 2021 to 31 December 2023.

CATCHWORDS

CHILD SUPPORT – departure determination – whether there was a ground for departure – costs of special needs significantly affect the cost of maintaining the child – school fees – ground established – decision under review varied

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

Dr Walle and Ms Whibley are the parents of [Child 1], [Child 2] and [Child 3], for whom the Child Support Registrar has issued administrative assessments of child support, with the first assessment commencing on 21 June 2019. All assessments have required Ms Whibley to pay child support to Dr Walle for the children.
An assessment of child support is made in accordance with the provisions of Part 5 of the Child Support (Assessment) Act1989 (the Act). Broadly speaking, those provisions prescribe a formula that applies to several variables to work out the amount of child support one parent must pay the other. Those variables include the parents’ incomes (which generally will be a parent’s taxable income from the financial year before the start of the child support period to which the assessment relates); the level of care that each parent provides for their children; and the cost to care for the children. A parent, if they believe there are special circumstances with respect to their case, may apply to the Registrar under section 98B of the Act for a determination to depart from those provisions of the Act relating to the assessment of child support. The Registrar, who acts through staff employed at Services Australia – Child Support (Services Australia), describes such an application as a “change of assessment application”.
The Registrar, if satisfied that the criteria of subsection 98C(1) of the Act are met, can make one or more of the determinations listed in subsection 98S(1) to depart from the provisions of the Act relating to the assessment of child support. The criteria specified in subsection 98C(1) are firstly, that one of the several grounds for departure listed in subsection 117(2) of the Act is established in the particular case, secondly, that is just and equitable as regards the parents and the child to…

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 4802
Decision Date: 26 October 2021

CaseChat Overview and Summary

The case of Walle and Whibley (Child support) concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth). The applicant sought to vary a child support assessment, arguing that the costs associated with the child's special needs significantly impacted the cost of maintaining the child, thereby establishing a ground for departure. The matter was heard by M Douglas M.

The primary legal issue before the court was whether the costs incurred by the applicant in relation to the child's special needs, specifically school fees, constituted a ground for departure from the child support assessment. This required the court to consider the provisions of the *Child Support (Registration and Collection) Act 1988* that permit variations to assessments in circumstances where the standard assessment does not adequately reflect the costs of maintaining a child due to special circumstances.

The court found that the costs of the child's special needs, including the school fees, did indeed significantly affect the cost of maintaining the child. Applying the relevant provisions of the Act, the court determined that a ground for departure was established. Consequently, the decision under review was varied to reflect these additional costs.

Orders