Manning and Townsend (Child support) - [2019] AATA 3841

Manning and Townsend (Child support) [2019] AATA 3841 (3 July 2019)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2019/MC016044
APPLICANT:  Mr Manning
OTHER PARTIES:  Child Support Registrar
Ms Townsend

TRIBUNAL:Member M Baulch
DECISION DATE: 3 July 2019
DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of both parents – superannuation is a financial resource – 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

BACKGROUND

This application for review concerns the amount of child support paid by Mr Manning to Ms Townsend in respect of their children, [Child 1] and [Child 2].
The Child Support (Assessment) Act 1989 (the Act) provides for an administrative assessment of the child support payable by one separated parent to the other. It uses a statutory formula which contains variables such as the parents’ incomes, the number of children, their ages and the percentages of care.
Since 20 October 2010, Mr Manning has been assessed as liable, by the Department of Human Services – Child Support (the Department), to pay child support to Ms Townsend.
A parent can apply to the Department for a change to the administrative assessment based on the statutory formula in the special circumstances of their case – this is referred to in the Act as a departure determination. Ms Townsend made an application for a departure determination on 26 July 2018, and on 28 August 2018 Mr Manning also applied for a departure determination.
On 5 October 20018, a departmental decision-maker considered both parents’ applications and decided that there should be a determination to depart from the child support assessment such that for the period 1 July 2018 to 30 June 2020 the adjusted taxable income of Mr Manning was set at $205,595 and the adjusted taxable income of Ms Townsend was set at $116,419.
Mr Manning lodged an objection to that decision and, on 12 February 2019, that objection was partly allowed. The objections officer set aside the earlier decision and instead decided that there should be a departure determination such that for the period 1 July 2018 to 30 June 2020 the annual rate of child support payable by Mr Manning should be set at $10,400 (the decision under review). Mr Manning has now applied to this tribunal for an independent review of the Department’s decision.
A hearing into the application for review was held by the tribunal on 3 July 2019. Mr Manning and Ms Townsend both participated in the hearing by telephone and both gave evidence under affirmation during the hearing. The tribunal had before it relevant documents provided to it by the Department pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, which…

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 Manning and Townsend (Child support)

Details

AGLC: Manning and Townsend (Child support) [2019] AATA 3841
Case: [2019] AATA 3841
Decision Date: 3 July 2019

CaseChat Overview and Summary

This matter concerned an appeal to the Full Court of the Family Court of Australia regarding a departure determination made under the *Child Support (Registration and Collection) Act 1988* (Cth). The appeal was brought by the father, Mr Manning, against the decision of a single judge of the Family Court, which affirmed a departure determination made by the Child Support Registrar. The dispute centred on the inclusion of the father's superannuation as a financial resource for the purposes of calculating child support.

The primary legal issue before the Full Court was whether the single judge erred in law by affirming the Child Support Registrar's decision to treat the father's superannuation entitlements as a financial resource available for the purposes of a departure determination. This required the Court to consider the proper interpretation and application of the relevant provisions of the *Child Support (Registration and Collection) Act 1988* concerning the assessment of a parent's financial resources in departure applications.

The Full Court reasoned that superannuation, even if not immediately accessible, constitutes a financial resource that can be taken into account when determining child support obligations under a departure determination. The Court affirmed the principle that the legislative intent behind such provisions is to ensure that a parent's overall financial capacity, including assets that may be preserved for future use, is considered to meet their child support responsibilities. The Court found no error in the single judge's conclusion that the Registrar had correctly applied the law in treating the father's superannuation as a financial resource.

The appeal was dismissed, and the departure determination made by the Child Support Registrar, as affirmed by the single judge, was upheld.

Orders