Lopez and Romer (Child support) - [2023] AATA 2934

Lopez and Romer (Child support) [2023] AATA 2934 (29 June 2023)

DIVISION: Social Services & Child Support Division

REVIEW NUMBER:  2022/SC025294
APPLICANT:  Ms Lopez
OTHER PARTIES:  Child Support Registrar
Mr Romer

TRIBUNAL:Member D Tucker
DECISION DATE: 29 June 2023
DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that:

· for the period 1 July 2021 to 30 June 2022 the mother’s annual rate of child support is reduced by $2,488,
· for the period 1 July 2021 to 30 June 2024 the mother’s adjusted taxable income is varied to $74,720.

CATCHWORDS

CHILD SUPPORT – departure determination – special needs – orthodontic treatment – a ground for departure established – decision to depart - 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 omitted 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

Mr Romer (the father) and Ms Lopez (the mother) are the parents of [Child 1], born 16 March 2007 and [Child 2], born 13 March 2009. A child support case was registered with Services Australia – Child Support (Child Support) from 3 February 2010.
The Child Support (Assessment) Act 1989 (the Act) provides for an administrative assessment of the child support payable. It uses a formula that applies variables including each parent’s adjusted taxable income (ATI) and percentage of care. The Act also provides for a departure from the administrative assessment in certain circumstances.
On 8 February 2022 the mother applied for a change of assessment, based on Reason 2 (costs of meeting special needs) in relation to [Child 2]’s orthodontic treatment; and Reason 8A (the father’s income and financial resources). The mother sought an increase in the father’s liability to $6,000 p.a. for the period 1 March 2022 to 31 March 2023.
[The decision maker] found that Reason 2 and Reason 8 were established[1] because:
·   The cost of [Child 2]’s braces would total $9,900 which significantly increased the cost of maintaining her.
·   The father’s financial arrangements were too complex to estimate his income precisely, but it was significantly higher than the $25,135 reflected to him. The father’s ATI was deemed to be $54,125, which was two thirds of average male weekly earnings.
·   The mother’s ATI in 2021/22 was $78,500, significantly higher than the $68,692 reflected to her in the prevailing assessment.
[1] page 512 of the hearing papers
On 22 June 2022 [the decision maker] decided that:
· For the period 1 July 2022 to 31 December 2023, the annual rate of child support payable by:
othe father, would reduce from $459 to $0 and
othe mother’s liability would remain unchanged at $0.
The rationale was that the mother’s annual rate would otherwise be $3,447 p.a. Reducing her rate to nil for 18 months reduced her child…

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 Lopez and Romer (Child support)

Details

AGLC: Lopez and Romer (Child support) [2023] AATA 2934
Case: [2023] AATA 2934
Decision Date: 29 June 2023

CaseChat Overview and Summary

This matter concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth) by the father, Mr Lopez, against the mother, Ms Romer, regarding child support payments for their child. The dispute centred on whether the costs of orthodontic treatment for the child constituted a ground for departure from the usual child support assessment.

The court was required to determine whether the child had special needs that warranted a departure from the standard assessment, specifically whether the orthodontic treatment qualified as a necessary expense arising from such special needs. The court also had to consider whether the costs of this treatment were not otherwise adequately covered by the existing child support assessment.

In reaching its decision, the court applied the principles outlined in the *Child Support (Registration and Collection) Act 1988* concerning departure determinations. It found that the child did indeed have special needs due to the significant orthodontic issues requiring extensive and costly treatment. The court reasoned that the standard child support assessment did not adequately account for the substantial expense of this necessary medical intervention. Consequently, the court determined that a departure from the assessment was justified.

The court set aside the original decision and substituted its own, ordering a departure from the assessment to reflect the costs associated with the child's orthodontic treatment.

Orders