Kane and Kane (Child support)

[2023] AATA 4658

Kane and Kane (Child support) [2023] AATA 4658 (15 December 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/SC026288

APPLICANT:  Mr Kane

OTHER PARTIES:  Child Support Registrar

Ms Kane

TRIBUNAL:Member P Jensen

DECISION DATE:  15 December 2023

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – administrative assessment of liable parent’s child support payable – correct application of formula – 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

1. Mr Kane and Ms Kane are the parents of [Child 1]. A child support case was registered in 2008. The Child Support (Assessment) Act 1989 (the Act) provides for an administrative assessment of child support payable. It uses a formula which contains variables such as the parents’ adjusted taxable incomes, and those variables in turn affect another variable called “the costs of the child”. The costs of the child are calculated pursuant to a formula in Division 6 of Part 5 of the Act. For further information about the costs of the child, see 2.4.6 of the Child Support Guide.

2. On 6 April 2023, Services Australia – Child Support (Child Support) administratively assessed Mr Kane’s rate of child support payable from 1 September 2022 to be $20,067 per annum. The assessment was based, in part, on the costs of the child being $27,701 per annum. Mr Kane objected to the administrative assessment. An objections officer affirmed the decision and provided detailed written reasons concerning the relevant law and its application to the facts of the case. Both parents have been provided with a copy of those written reasons. There is no utility in reproducing those written reasons here. Mr Kane applied to the Tribunal for further review. I heard the matter on 15 December 2023. Mr Kane and Ms Kane attended the hearing via an MS Teams video link. Mr Kane gave sworn evidence. It was not necessary to hear from Ms Kane.

3. Mr Kane said [Child 1]’s costs were not $27,701 per annum. I explained that that figure did not purport to be a precise calculation of [Child 1]’s costs; it was the result of a formula. Mr Kane indicated that he wanted to lodge a departure application (commonly called a Change of Assessment): see 2.6 of the Child Support Guide. Such applications are lodged with Child Support. Once Child Support has decided to either grant or refuse a departure application, there are review rights in respect of that departure decision. However, the current proceedings do not concern a departure decision. The current proceedings are confined to a review of the decision dated 6 April 2023 to administratively assess Mr Kane to pay $20,067 per annum in child support from 1 September 2022. There is no dispute that that decision was the result of the correct application of the law to the facts of the case. Mr Kane submitted that the correct application of the law produced an unfair result and therefore the law should be changed. Child Support does not have the power to change the law; it must apply the law. On review and on appeal, tribunals and courts do not have the power to change the law; they must apply the law. The decision under review is correct according to law.

DECISION

The decision under review is affirmed.