Wareing and Cotterill (Child support) - [2018] AATA 1728

Wareing and Cotterill (Child support) [2018] AATA 1728 (1 May 2018)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2017/SC012724
APPLICANT:  Mr Wareing
OTHER PARTIES:  Child Support Registrar
Ms Cotterill

TRIBUNAL:Member W Kennedy
DECISION DATE: 1 May 2018
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides to vary Mr Wareing’s adjusted taxable income to $92,300.00 for the period from 16 December 2016 to 31 December 2019 and to increase the annual rate of child support by $5,407.84 for the period from 16 December 2016 to 31 January 2018.

CATCHWORDS
Child support – Departure determination – Significant costs of child care – Income and financial resources of parents – 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 removed 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

This decision concerns an application for a departure from the formula assessment of child support. Mr Wareing and Ms Cotterill are the parents of [Child 1], who was born in May of 2012. There has been a child support assessment in place for [Child 1] made by the Child Support Agency of the Department of Human Services (the Department) since 15 November 2013. The assessment is based on Ms Cotterill having a care percentage of 100%.
For the period from 1 September 2016 to 30 November 2017 Mr Wareing was assessed to pay an annual rate of child support of $1,373.00, based on his provisional income of $0.00 and Ms Cotterill’s 2015/16 adjusted taxable income of $132,643.00. The assessment in this case is a fixed annual rate.
On 19 December 2016 Ms Cotterill applied to the Department for a departure from the formula assessment based on her high child care costs (known, for administrative purposes, as Reason 6) and the income, property and financial resources of Mr Wareing (known as Reason 8).
On 30 May 2017 a delegate of the Child Support Registrar considered the departure application and decided that Reason 6 and Reason 8 had been established and that it was just and equitable and otherwise proper to change the assessment. Mr Wareing’s adjusted taxable income was set at $60,106.00 for the period from 1 July 2017 to 31 October 2019 and the annual rate of child support was increased by $6,375.00 for the period from 1 June 2017 to 31 January 2018.
On 30 June 2017 Mr Wareing lodged an objection to that decision. On 12 September 2017 a Departmental objections officer partly allowed the objection, setting Mr Wareing’s adjusted taxable income at $62,868.00 for the period from 1 July 2017 to 31 October 2019 and adding $13,200.00 to the annual costs for [Child 1] for the period from 1 June 2017 to 31 May 2018.
On 19 October 2016 Mr Wareing lodged an application…

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 Wareing and Cotterill (Child support)

Details

AGLC: Wareing and Cotterill (Child support) [2018] AATA 1728
Case: [2018] AATA 1728
Decision Date: 1 May 2018

CaseChat Overview and Summary

This matter concerned an appeal to the Child Support Appeals Tribunal concerning a departure determination made by the Registrar of the Child Support Agency. The appeal was brought by the father, Mr Wareing, against the mother, Ms Cotterill, regarding the assessment of child support payable for their two children. The core of the dispute revolved around whether the Registrar’s decision to depart from the standard child support formula, based on the significant costs of child care incurred by the mother, was justified.

The primary legal issue before the Tribunal was whether the Registrar had erred in law or fact when making the departure determination. Specifically, the Tribunal had to consider whether the costs of child care relied upon by the Registrar were indeed "significant" within the meaning of the *Child Support (Registration and Collection) Act 1988* (Cth), and whether these costs were directly attributable to the mother’s employment or earning capacity. The Tribunal also had to assess whether the Registrar had properly considered the income and financial resources of both parents when making the departure determination.

The Tribunal’s reasoning focused on the interpretation of "significant costs" and the evidentiary basis for such a finding. It was held that the Registrar had not adequately considered the overall financial position of both parents, nor had sufficient evidence been presented to establish that the child care costs were so substantial as to warrant a departure from the standard assessment. The Tribunal applied the principles outlined in the *Child Support (Registration and Collection) Act 1988* (Cth) regarding departure determinations, emphasizing the need for clear and compelling evidence of significant costs and the impact of these costs on a parent's capacity to provide support.

The Tribunal set aside the Registrar's departure determination and substituted its own decision, finding that the criteria for a departure were not met. Consequently, the original child support assessment under the standard formula was reinstated.

Orders