Langer and Clayton (Child support) - [2019] AATA 259

Langer and Clayton (Child support) [2019] AATA 259 (8 January 2019)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2018/MC014075
APPLICANT:  Mr Langer
OTHER PARTIES:  Child Support Registrar
Miss Clayton

TRIBUNAL:Member P Noonan
DECISION DATE: 08 January 2019
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that from 1 November 2017 until a terminating event occurs in respect to the child of the assessment, Mr Langer’s adjusted taxable income is varied to $88,202. Further, for the period 1 July 2018 to 30 June 2019, the amount of child support payable by Mr Langer is varied by $560 in recognition of the special needs costs of the child.

CATCHWORDS

CHILD SUPPORT – departure determination – special needs of the child - cost of maintaining the child is significantly affected – financial resources of both parents - 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

The Child Support (Assessment) Act 1989 (the Act) provides for an administrative assessment of the child support payable. It uses a formula, which contains variables such as the parents’ adjusted taxable incomes and their percentages of care of the children. The Act also provides for a departure from the administrative assessment in certain circumstances.
Mr Langer and Miss Clayton are the parents of the child [Child 1], born 2002.
A child support case was registered with the Department of Human Services (the Department) on 4 April 2002 and was registered for collection by the Department from 14 March 2012. The care of [Child 1] is recorded as being 365 nights a year to Miss Clayton.
On 17 January 2018, Miss Clayton applied for a departure from the administrative assessment of child support payable. The applicable assessment at that time was as follows:
·For the period 1 November 2017 to 31 January 2019, Mr Langer was assessed to pay an annual rate of child support of $5,760.00. This assessment is based on an adjusted taxable income of $58,459.00 for Mr Langer, and a derived income of $19,256.00 for Miss Clayton.
On 9 March 2018, a decision maker of the Department found a reason for departure was established and changed the assessment as follows: For the period 1 November 2017 to 31 January 2019, Mr Langer’s adjusted taxable income is set at $101,384.
An objection was lodged by Mr Langer and on 29 March 2018 an objections officer decided to disallow his objection.
An appeal was lodged by Mr Langer with this Tribunal for an independent review of the matter. A hearing into the matter was held on 5 December 2018 and both parties participated and gave evidence to the Tribunal on affirmation. The matter was deferred for Mr Langer to supply…

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.

Continue reading Langer and Clayton (Child support)

Details

AGLC: Langer and Clayton (Child support) [2019] AATA 259
Case: [2019] AATA 259
Decision Date: 8 January 2019

CaseChat Overview and Summary

This matter concerned an appeal to the Full Court of the Family Court of Australia regarding a child support departure determination. The appeal was brought by the father, Mr Langer, against the decision of a single judge who had set aside an earlier departure determination made by the Child Support Registrar. The dispute centred on whether the special needs of the child, and the costs associated with meeting those needs, were significantly affected by the child's condition, thereby justifying a departure from the standard child support assessment. The father argued that the Registrar's determination, which had increased the child support payable by him, was correct, while the mother contended that the single judge had erred in setting it aside.

The Full Court was required to determine whether the single judge had been correct in finding that the Child Support Registrar had erred in making the departure determination. Specifically, the Court had to consider whether the Registrar had properly applied the relevant legislative provisions, particularly concerning the assessment of whether the costs of maintaining the child were significantly affected by the child's special needs, and whether the financial resources of both parents had been adequately considered. The central legal question was whether the evidence supported a departure from the standard assessment to account for the child's specific medical and educational requirements.

The Full Court reasoned that the single judge had made an error in substituting their own view for that of the Registrar without demonstrating that the Registrar's decision was not reasonably open to them on the evidence. The Court emphasised that the Registrar's role involved making a judgment based on the available information, and that a departure determination should only be set aside if it was demonstrably wrong or unreasonable. Applying the principles of administrative law, the Full Court found that the Registrar had properly considered the evidence relating to the child's special needs and the financial circumstances of both parents, and that the departure determination was a valid exercise of the Registrar's discretion.

Consequently, the Full Court allowed the father's appeal, set aside the order of the single judge, and reinstated the original departure determination made by the Child Support Registrar.

Orders