Ming and Ming (Child support) - [2019] AATA 686

Ming and Ming (Child support) [2019] AATA 686 (26 January 2019)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2018/SC014086
APPLICANT:  Mrs Ming
OTHER PARTIES:  Child Support Registrar
Mr Ming

TRIBUNAL:Member F Staden
DECISION DATE: 26 January 2019
DECISION:

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

Mr Ming’s annual child support liability for the period 1 September 2017 to 30 November 2018 is increased by $1,525.

CATCHWORDS

CHILD SUPPORT – departure determination – costs of child care - cost of maintaining the children are 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

Mrs Ming and Mr Ming are the parents of [Child 1], born 2012. There has been a child support assessment for this case since 8 April 2015.
Mrs Ming’s care percentage for [Child 1] has been recorded as 90% and that of Mr Ming as 10% since 8 April 2015. Mr Ming is the parent liable to pay child support. Mrs Ming opted for collection of child support by the Department of Human Services – Child Support (the Department) from 1 May 2015.
On 16 August 2017, the Department issued child support assessments, relevantly here, for the child support period 1 September 2017 to 30 November 2018. Mr Ming’s annual child support liability was $20,830, based on Mr Ming’s provisional 2016/17 adjusted taxable income of $228,569 and Mrs Ming’s 2016/17 adjusted taxable income of $36,617.
On 3 November 2017, Mrs Ming applied for a change of assessment for the period 1 September 2017 to 30 November 2018 on the basis that the child support assessment was unfair because it did not correctly reflect the costs associated with meeting [Child 1]’s special needs (Reason 2) or Mr Ming’s earning capacity (Reason 8B). A third reason was later added whereby the costs of maintaining [Child 1] are significantly affected by high child care costs (Reason 6).
On 22 January 2018, a delegate of the Child Support Registrar refused Mrs Ming’s application for a departure on the basis that no reason for a change of assessment had been established.
Mrs Ming lodged an objection to the 22 January 2018 decision on 26 February 2018.
On 2 March 2018, the Department revised the calculation of Mr Ming’s annual child support liability to $20,793 for the period 1 September 2017 to 30 November 2018, based on his actual, rather than provisional, 2016/17 adjusted taxable income of $222,239 and Mrs Ming’s 2016/17 adjusted taxable income of $36,617.
On 17 April 2018, an objections officer disallowed Mrs Ming’s objection, again on the basis that no reason for a change of assessment had been established.
On 16 May 2018,…

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 Ming and Ming (Child support)

Details

AGLC: Ming and Ming (Child support) [2019] AATA 686
Case: [2019] AATA 686
Decision Date: 26 January 2019

CaseChat Overview and Summary

The matter of *Ming and Ming (Child Support)* concerned an appeal to the court regarding a departure determination made under the *Child Support (Registration and Collection) Act 1988*. The primary dispute revolved around the assessment of child care costs and their impact on the overall cost of maintaining the children, as well as the consideration of the financial resources available to both parents.

The court was required to determine whether the original departure determination had correctly assessed the extent to which the costs of maintaining the children were significantly affected by specific factors, and whether it had adequately taken into account the financial resources of both the applicant and the respondent. The central legal issue was whether the original decision was erroneous in its application of the relevant provisions of the Act concerning departure from the standard child support assessment.

In its reasoning, the court reviewed the evidence presented regarding the child care expenses and the financial circumstances of each parent. It applied the principles established in child support jurisprudence concerning the interpretation of "significantly affected" and the broad discretion afforded to decision-makers when considering parental financial resources. The court found that the original decision had failed to properly weigh all relevant factors, leading to an incorrect assessment. Consequently, the court set aside the original departure determination and substituted its own decision.

Orders