Wearne and Watts (Child support) - [2023] AATA 3306

Wearne and Watts (Child support) [2023] AATA 3306 (15 August 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/SC025651
APPLICANT:  Mr Wearne
OTHER PARTIES:  Child Support Registrar
Ms Watts

TRIBUNAL:Senior Member R Ellis
DECISION DATE: 15 August 2023
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that:

for the period from 21 July 2022 to 30 September 2024 the adjusted taxable income of Mr Wearne is varied to $105,168;
for the period from 21 July 2022 to 31 December 2022 the annual rate of child support payable by Mr Wearne is increased by $11,926;
for the period from 1 January 2023 to 3 November 2023 the annual rate of child support payable by Mr Wearne is increased by $15,016; and
for the period from 1 January 2024 to 31 December 2024 the annual rate of child support payable by Mr Wearne is increased by $11,839.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of both parents – costs of the children include private education – 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 review is about whether or not there should be a departure from the administrative assessment of child support.
Mr Wearne and Ms Watts are the parents of [Child 1] (born July 2005) and [Child 2] (born September 2009). There has been a child support assessment in place since 2 May 2019 and Mr Wearne is the parent liable to pay child support.
The following administrative assessments are under consideration:
· for the period from 1 December 2021 to 6 September 2022 Mr Wearne was assessed to pay an annual rate of $7,504 based on a 2020-21 adjusted taxable income of $57,963 for Mr Wearne and a provisional 2020-21 adjusted taxable income for Ms Watts of $141,257; and
· for the period from 7 September 2022 to 28 February 2023 Mr Wearne was assessed to pay an annual rate of $8,204 based on a 2020-21 adjusted taxable income of $57,963 for Mr Wearne and a provisional 2020-21 adjusted taxable income for Ms Watts of $141,257.
The Tribunal notes the increase in the annual rate payable from 7 September 2022 was due to [Child 2] turning 13 years of age.
On 21 July 2022 Ms Watts applied to Services Australia – Child Support (Child Support) for a change to the assessment on the basis of the special needs of the child (the ground more commonly referred to as Reason 2), the high costs of caring for, educating or training the child (Reason 3) and a parent’s income, property and financial resources (Reason 8A).
On 19 October 2022 Child Support made the decision to change the assessment…

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: [2023] AATA 3306
Decision Date: 15 August 2023

CaseChat Overview and Summary

This matter concerned an application by the father, Mr Wearne, to review a child support departure determination made by the Registrar. The dispute centred on the assessment of the income, property, and financial resources of both parents, and whether the costs associated with the children's private education should be included in the calculation of child support. The review was heard by Senior Member Ellis of the relevant tribunal.

The primary legal issue before the Senior Member was to determine whether the Registrar's departure determination was justified, specifically in relation to the assessment of the parties' financial circumstances and the inclusion of private school fees as a relevant cost of the children. The Senior Member was required to consider whether the existing child support assessment did not make proper or adequate assessment of the parties' respective capacities to provide financial support for the children, having regard to their income, property, and financial resources.

In reaching a decision, the Senior Member applied the principles of the *Child Support (Registration and Collection) Act 1988* (Cth) concerning departure determinations. The Senior Member considered evidence relating to the income and financial resources of both Mr Wearne and Ms Watts, and critically, the actual and potential costs incurred for the children's private education. The Senior Member found that the Registrar's determination had not adequately accounted for these factors, particularly the significant costs of private schooling which were a substantial expense for the children.

Consequently, the Senior Member set aside the Registrar's departure determination and substituted a new determination that more accurately reflected the parties' financial positions and the costs associated with the children's education.

Orders