Watsons and Luntley (Child support) - [2023] AATA 4663

Watsons and Luntley (Child support) [2023] AATA 4663 (7 December 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/MC026109
APPLICANT:  Ms Watsons
OTHER PARTIES:  Child Support Registrar
Mr Luntley

TRIBUNAL:Member T Hamilton-Noy
DECISION DATE: 7 December 2023
DECISION:

The Tribunal sets aside the decision under review and substitutes its decision that:

For the period 30 August 2022 to 31 December 2024, Ms Watsons’ adjusted taxable income is varied to $258,543 and Mr Luntley’s adjusted taxable income is varied to $144,796.
For the period 30 August 2022 to 31 December 2022, child support payable by Mr Luntley is increased by $14,997 to reflect the schooling costs of the children.
For the period 1 January 2023 to 31 December 2023, child support payable by Mr Luntley is increased by $33,668 to reflect the schooling costs of the children.
For the period 1 January 2024 to 31 December 2024, child support payable by Mr Luntley is increased by $37,494 to reflect the schooling costs of the children.
For the period 1 January 2023 to 31 December 2024, child support payable by Mr Luntley is increased by $3,237 per annum to reflect [Child 2]’s special needs.

CATCHWORDS

CHILD SUPPORT – departure determination – costs of education – costs of special needs of the child – financial resources and earning capacity of the parents – whether just and equitable to depart – 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

Ms Watsons and Mr Luntley are the separated parents of [Child 1] and [Child 2]. A case has been registered with Services Australia – Child Support (Child Support) since 3 June 2022 and payments are currently collectable by Child Support. Mr Luntley is the payer of child support in this matter and Ms Watsons the payee.
On 29 July 2022, Child Support issued administrative assessments of child support to the parties for the following periods:
· For the period 3 June 2022 to 21 March 2023, Mr Luntley was to pay $3,802 per annum, based on his 2020/2021 adjusted taxable income of $52,376 and Ms Watsons’ 2020/2021 adjusted taxable income of $258,543.
· For the period 22 March 2023 to 2 September 2023, Mr Luntley was to pay $4,202 per annum, based on his 2020/2021 adjusted taxable income of $52,376 and Ms Watsons’ 2020/2021 adjusted taxable income of $258,543 (the change was due to [Child 1] turning 13 years of age).
On 18 August 2022, Child Support accepted an income estimate provided by Mr Luntley and issued further assessments to the parties, including for the following periods:
· For the period 18 August 2022 to 21 March 2023, Mr Luntley was to pay $3,042 per annum, based on his estimate of $0…

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 Watsons and Luntley (Child support)

Details

AGLC: Watsons and Luntley (Child support) [2023] AATA 4663
Case: [2023] AATA 4663
Decision Date: 7 December 2023

CaseChat Overview and Summary

This matter concerned an appeal to the Family Court of Australia regarding a departure determination made under the *Child Support (Registration and Collection) Act 1988* (Cth). The appeal was brought by the father, Mr Watsons, against the mother, Ms Luntley, concerning the child support payable for their child. The primary dispute revolved around whether the child support assessment should be departed from to account for the costs of the child's education and special needs, and the financial circumstances of both parents.

The central legal issues before the Court were whether the Registrar of the Child Support Agency had erred in refusing to depart from the administrative assessment of child support. Specifically, the Court had to consider whether the costs associated with the child's education and any special needs constituted a "special circumstance" that would make it just and equitable to depart from the assessment. Furthermore, the Court was required to assess the financial resources and earning capacity of both the father and the mother in determining whether a departure was warranted.

The Court found that the Registrar had failed to adequately consider the evidence presented regarding the child's educational costs and special needs. It was held that these factors, when viewed in conjunction with the respective financial capacities of the parties, could indeed justify a departure from the standard assessment. The Court applied the principles of "just and equitable" as set out in the *Child Support (Registration and Collection) Act 1988*, emphasizing that a departure determination must reflect the true financial positions of the parents and the actual costs incurred for the child's benefit.

The Court set aside the decision under review and substituted its own determination, ordering a departure from the administrative assessment of child support to take into account the specific circumstances of the child and the parties.

Orders