Hempsell and Kembell (Child support)

This matter concerned an appeal to the Federal Circuit Court of Australia regarding a departure determination made by the Child Support Registrar. The appeal was brought by the liable parent, Mr Hempsell, against a decision of the Registrar to depart from the formula assessment of child support payable to the other parent, Ms Kembell, for the benefit of their two children. The dispute centred on whether the Registrar had erred in her decision to depart from the assessment.

The primary legal issue before the Court was whether the Registrar had correctly applied the provisions of the *Child Support (Registration and Collection) Act 1988* (Cth) in making the departure determination. Specifically, the Court had to consider whether the Registrar had properly identified a ground for departure under section 117 of the Act and, if so, whether the departure decision itself was justified. The Court also considered the weight to be given to the cost of orthodontic treatment for the children as a factor in the departure assessment.

The Court found that the Registrar had erred in her assessment of the departure grounds. While acknowledging that the cost of orthodontic treatment could, in certain circumstances, constitute a ground for departure under section 117(1)(e) of the Act, the Court determined that the Registrar had not adequately considered the specific financial circumstances of both parents in relation to this expense. The Court held that a departure determination requires a holistic assessment of the impact of the expense on the capacity of the liable parent to pay the assessed amount, and the capacity of the other parent to meet their obligations. The Court concluded that the Registrar had failed to undertake this comprehensive assessment.

Consequently, the Court set aside the Registrar's departure determination and substituted its own decision. The Court ordered that no departure from the formula assessment of child support was justified in this instance.