Kimble and Kimble and Child Support Registrar (SSAT Appeal)
[2009] FMCAfam 1059
•9 October 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KIMBLE & KIMBLE & CHILD SUPPORT REGISTRAR (SSAT APPEAL) | [2009] FMCAfam 1059 |
| CHILD SUPPORT – Appeal against decision of SSAT – father receiving child support for other children in another child support case – whether father entitled to multi case allowance in calculating his child support income. |
| Child Support (Assessment) Act 1989, ss.5, 35, 35C(1), 36A, 41(2), (3) & (4) |
| Applicant: | MS KIMBLE |
| First Respondent: | MR KIMBLE |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | SYC477/2009 |
| Judgment of: | Halligan FM |
| Hearing date: | 9 October 2009 |
| Date of Last Submission: | 9 October 2009 |
| Delivered at: | Parramatta |
| Delivered on: | 9 October 2009 |
REPRESENTATION
| Applicant: | Mother in Person |
| First Respondent: | No Appearance |
| Solicitor for the 2nd Respondent: | Ms Wild |
ORDERS
The mother's appeal against the decision of the Social Security Appeals Tribunal is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Kimble & Kimble & Child Support Registrar (SSAT Appeal) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
SYC477/2009
| MS KIMBLE |
Applicant
And
| MR KIMBLE |
First Respondent
| CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is the mother's appeal against a decision of the Social Security Appeals Tribunal (the SSAT) made on 23 January 2009 affirming a decision of the Child Support Registrar (the Registrar) that the mother sought to have reviewed.
The point of law on which the mother appeals the SSAT decision requires consideration whether child support for the parties’ child should be calculated under Subdivision B or Subdivision C of Division 2 of Part 5 of the Assessment Act (Subdivision B and Subdivision C, respectively), and in particular whether the father should have his child support income calculated by deduction of a relevant dependant child allowance or a multi case allowance.
The father did not participate in the hearing.
Background facts
The facts are not in dispute. The parties have one child, a son. The father has two other children from another relationship. The mother applied for an administrative assessment of child support for the parties’ son. In about March 2008, the Registrar advised the mother that under the new child support formula applying from 1 July 2008, the father would be paying her more child support for their son. The Registrar issued an assessment at this time to commence on 1 July 2008 on the basis that the father's other two children were “relevant dependant children” under the Assessment Act, applying a relevant dependant child allowance under s.41(2) in determining the father's child support income.
From 1 July 2008, the father had a child support case in relation to his other two children. He was and is not required to pay any child support to the mother of the other children under this case. In fact, he is entitled to receive child support for these children. The mother appeared to agree that the father had been assessed in respect of the costs of his other two children in that case.
On 11 October 2008, the Registrar issued an amended assessment from 1 July 2008 on the basis that the father's other two children were not relevant dependent children but were part of another child support case, applying a multi case allowance under s.41(3) to determine the father's child support income.
The decision of the SSAT
The SSAT accurately identified the nub of the matter, and dealt with the issue thus:
9. The resolution of this case turns on the correct interpretation of the applicable law. It is the law which determines Ms Kimble’s and Mr Kimble’s rights and obligations. Obviously the information on the CSA website should be correct but the placing of incorrect information on the website does not change the applicable law.
10. Division 3 of the Assessment Act is entitled ‘child support income’ and contains sections 40E to 47. Section 40E states, relevantly:
40E Simplified outline
The following is a simplified outline of this Division:
· The income used in determining a parent’s capacity to meet the costs of his or her children might be reduced by the following amounts:
(a) the self-support amount (to take account of the parent’s need to support himself or herself);
(b) a relevant dependent child amount (if the parent cares for a relevant dependent child or step-child of the parent);
(c) a multi-case allowance (if the parent has multiple child support cases).
11. The term ‘relevant dependent child’ is defined in section 5 of the Assessment Act which states, relevantly:
relevant dependent child, in relation to a parent, means a child or step-child of the parent, but only if:
(e) in the case of a child — the parent is not assessed in respect of the costs of the child [except for a purpose not relevant in this case]
12. The CSA accepted Mr Kimble’s application for child support in respect of the other children. He and the other children’s mother were assessed in respect of the costs of the children. It follows from the definition in section 5 that the children are not relevant dependant children and, as indicated in section 40E, the income used in determining Mr Kimble’s capacity to meet the costs of [X] is not reduced by a relevant dependent child amount.
13. Section 47 is entitled ‘Working out multi-case allowances’. It contains a formula and Step 3 of the formula states, ‘For each of the children (the multi-case children) for whom the parent is assessed in respect of the costs of the child ...’ Mr Kimble has been assessed in respect of the costs of the child in two child support cases. In one case he was assessed in respect of [X] and in another case he was assessed in respect of the other children. Mr Kimble has multiple child support cases and the income used in determining Mr Kimble’s capacity to meet the costs of [X] is to be reduced by a multi-case allowance. The objections officer’s decision is correct.
14. There is one final observation to make. Subsection 47(2) states that for the purposes of Step 3, a parent is taken to be assessed in respect of the costs of a child if the parent is liable to pay child support for the child under an administrative assessment under the law of a reciprocating jurisdiction. However, subsection 47(2) only applies in respect of an administrative assessment under the law of a reciprocating jurisdiction — outside Australia — and that is not the case here.
The mother's submissions
In essence, the mother's case is that because the father is not liable to make any payments of child support in relation to his other two children, his child support income should not be calculated by deducting the multi case allowance, but rather by deducting the relevant dependent child allowance. The mother's position seems to have been strongly influenced by the fact that the Registrar’s website suggested that the multi case allowance applied if a parent was liable to pay child support under another case. This material apparently has been amended to remove reference to a party being liable for child support under another case.
Discussion
Part 5 of the Assessment Act applies in relation to the assessment of child support payable by a parent for a child, subject to certain irrelevant exceptions (s.35C(1)).
The application of the formula under Subdivision B is delineated by s.35D(1), which provides-
“(1) The annual rate of child support payable for a child for a day in a child support period is assessed under this Subdivision if:
(a) both parents of the child are to be assessed in respect of the costs of the child; and
(b) both parents are to be assessed only in respect of the costs of:
(i) that child; and
(ii) any other child in the child support case that relates to that child.”
The application of the formula under Subdivision C is delineated by s.36A, which provides-
“(1) The annual rate of child support payable for a child for a day in a child support period is assessed under this Subdivision if:
(a) both parents of the child are to be assessed in respect of the costs of that child; and
(b) at least one of the parents of the child is to be assessed in respect of the costs of another child in another child support case.
(2) For the purposes of paragraph (1)(b), a parent is taken to be assessed in respect of the costs of another child in another child support case if the parent is liable to pay child support for that child under an administrative assessment under the law of a reciprocating jurisdiction.”
It is clear on the facts of this case that both parents are not to be assessed only in respect of the costs of the child and another child in the case that relates to that child. It is clear that the father has been assessed in respect of the costs of another two children in another child support case. Hence the formula under Subdivision C applies.
The mother's contention that this is a multi case assessment only if the father is liable to pay child support under the other case is untenable. The contrast in the wording of s.35A(1)(b) on the one hand and s.35A(2) on the other, clearly indicates that unless the other case arises under an administrative assessment under the law of a reciprocating jurisdiction, the multi case formula applies if a parent has been assessed for the costs of the other children whether or not as a result that parent is liable to pay child support in the other case.
In applying the formula under Subdivision C, the Registrar must, among other things, work out each parent’s child support income by reference to s.41 (Step 1, Method Statement, s.35).
In determining whether the father is entitled to either or both of the relevant dependant child and multi case allowances, the prefatory words to s.41(2)9 and (3) are relevant, namely-
“(2) If:
(a) a parent is to be assessed in respect of the costs of a child (the particular child) in only one child support case; and
(b) the parent has at least one relevant dependent child;
(3) If:
(a) a parent is to be assessed in respect of the costs of a child (the particular child); and
(b) the parent is also to be assessed in respect of the costs of another child in another child support case; and
(c) the parent does not have a relevant dependent child;
(4) If:
(a) a parent is to be assessed in respect of the costs of a child (the particular child); and
(b) the parent is also to be assessed in respect of the costs of another child in another child support case; and
(c) the parent has at least one relevant dependent child;”
“Relevant dependent child” is defined by s.5(1) of the Assessment Act as follows:
relevant dependent child, in relation to a parent, means a child or step‑child of the parent, but only if:
(a) the parent has at least shared care of the child or step‑child during the relevant care period; and
(b) either:
(i) the child or step‑child is under 18; or
(ii) if the child or step‑child is not under 18—a child support terminating event has not happened under subsection 151D(1) in relation to the child; and
(c) the child or step‑child is not a member of a couple; and
(d) in the case of a step‑child:
(i) an order is in force under section 66M of the Family Law Act 1975 in relation to the parent and the step‑child; or
(ii) the parent has the duty, under section 124 of the Family Court Act 1997 of Western Australia, of maintaining the step‑child; and
(e) in the case of a child—the parent is not assessed in respect of the costs of the child (except for the purposes of step 4 of the method statement in section 46).”
As pointed out by the SSAT, paragraph (e) of this definition is crucial, and means the mother's contention must fail. The father's other two children cannot be relevant dependent children under the Assessment Act because the father has been assessed in respect of the costs of those children. The exception in paragraph (e) of the definition is not relevant, as s.46 relates to an assessment in respect of the costs of the children for the purposes of working out the relevant dependant child amount, and cannot apply unless there are children who meet the definition of “relevant dependant child”.
Conclusion
I agree with the conclusion of the SSAT that the husband's other two children are not relevant dependant children, and that the husband was entitled to a multi case allowance in respect of those children. The SSAT correctly interpreted and applied the law in this case, and the mother's appeal must therefore fail.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Halligan FM
Associate: Deanne Bush
Date: 12 October 2009
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