Dunfey and Farnsworth (Child support) - [2019] AATA 437

Dunfey and Farnsworth (Child support) [2019] AATA 437 (1 February 2019)
DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2018/MC014996
APPLICANT:  Mr Dunfey
OTHER PARTIES:  Child Support Registrar
Mrs Farnsworth

TRIBUNAL:Member J Longo
DECISION DATE: 1 February 2019
DECISION:

The decision under review is affirmed.

CATCHWORDS
CHILD SUPPORT – departure determination – necessary commitments for self-support for the liable parent - costs of orthodontic costs for the child – financial resources of both parents - decision under review affirmed
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
1.The issue to be determined in this application is whether there is a reason to change the administrative assessment of child support and, if so, whether it is just and equitable and otherwise proper to do so.
2.Mr Dunfey and Mrs Farnsworth are the parents of [Child 1]. Mr Dunfey is the parent liable to pay child support. The application for child support was registered with the Department of Human Services – Child Support (the Department) from 23 August 2004 and is currently subject to Departmental collection. [Child 1] is 100% in the care of Mrs Farnsworth.
3.Prior to the departure application, Mr Dunfey was assessed to pay an annual rate of child support of $2,120 for the period 1 September 2017 to 30 September 2018. This was based on Mr Dunfey’s 2016-2017 adjusted taxable income of $50,825 and Mrs Farnsworth’s 2016-2017 adjusted taxable income of $69,345. From 1 October 2018 to 3 December 2018, Mr Dunfey was required to pay an annual rate of child support of $1,989. This assessment is based on Mr Dunfey’s 2017-2018 adjusted taxable income of $50,815 and Mrs Farnsworth 2017-2018 provisional income of $70,940.
4.Mrs Farnsworth applied to the Department for a departure from the administrative assessment on 1 May 2018 in the special circumstances of the case, on the basis of Mr Dunfey’s income, property or financial resources (Reason 8A) and [Child 1]’s special needs (Reason 2). On 19 June 2018, a delegate of the Department decided that the grounds were established and made a departure determination as follows:
·From 1 May 2018 until a terminating event occurs, Mr Dunfey’s self-support amount is reduced to $0.
·For the period 1 May 2018 to 31 December 2019, the annual rate of child support payable by Mr Dunfey is increased by $1,368.
5.Mr Dunfey objected to the decision on 19 June 2018. An objections officer of the Department partly allowed the objection on 7 September 2018 and departed from the administrative assessment as follows:
·The decision to increase the annual rate of child support payable by Mr Dunfey from 1 May 2018 to 31 December 2019 by $1,368 per annum in respect of [Child 1]’s orthodontic costs is affirmed.
·From 20 June 2018…

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: [2019] AATA 437
Decision Date: 1 February 2019

CaseChat Overview and Summary

This matter concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth) brought by the liable parent, Mr Dunfey, against the child support assessment made in favour of Ms Farnsworth. The dispute centred on whether certain expenses incurred by Mr Dunfey were necessary for his self-support, and whether the financial resources of both parents warranted a departure from the standard assessment.

The court was required to determine whether the costs associated with orthodontic treatment for the child constituted a necessary commitment for the liable parent's self-support, and if so, whether these costs, when considered alongside the financial resources of both parties, justified a departure from the child support assessment. The court also had to consider the overall fairness of the assessment in light of these factors.

In reaching its decision, the court applied the principles governing departure determinations under the *Child Support (Registration and Collection) Act 1988*. It considered the evidence presented regarding Mr Dunfey's financial circumstances and the nature of the orthodontic expenses. The court affirmed the original decision, finding that the orthodontic costs were not a necessary commitment for the liable parent's self-support in a manner that would warrant a departure from the assessment, and that the financial resources of both parents did not support such a departure.

Orders