Nowell and Tansey (Child support) - [2019] AATA 433

Nowell and Tansey (Child support) [2019] AATA 433 (11 January 2019)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2018/MC014271
APPLICANT:  Ms Nowell
OTHER PARTIES:  Child Support Registrar
Mr Tansey

TRIBUNAL:Member P Noonan
DECISION DATE: 11 January 2019
DECISION:

The decision under review is varied so that:

·For the period 1 September 2016 to 30 September 2017 Mr Tansey’s adjusted taxable income is varied to $59,291.
·For the period 1 March 2017 to 30 November 2017 the annual rate of child support payable by Mr Tansey is varied such that the amount payable is increased by $12,485.
·From 1 April 2018 to 30 March 2019 the annual rate of child support payable by Mr Tansey is varied such that the amount payable is reduced by $3,103
·From 1 April 2019 to 30 March 2020 the annual rate of child support payable by Mr Tansey is varied such that the amount payable is reduced by$4,703.

CATCHWORDS

CHILD SUPPORT - departure determination – income, property and financial resources of the liable parent – compensation for medical incapacity – special needs of the child – orthodontic expenses – 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 (ATI) and their percentages of care of the children. The Act also provides for a departure from the administrative assessment in certain circumstances.
Ms Nowell and Mr Tansey are the parents of the children [Child 1] (born 2006), [Child 2] (born 2008) and [Child 3] (born 2011).
A child support case was registered with the Department of Human Services (the Department) on 26 June 2014 and was registered for collection of child support by the Department since 2 September 2015. According to the Department’s records the care of all three children is recorded by the Department as being 292 nights per year to Ms Nowell and 73 nights per year to Mr Tansey.
On 22 December 2016 Ms Nowell applied for a departure from the administrative assessment of child support payable. At the time of her application the administrative assessment was that:
·For the period 1 September 2016 to 30 November 2017, Mr Tansey is assessed to pay child support of $1,947 based on his 2015-16 ATI of $35,083 and Ms Nowell’s 2015-16 ATI of $29,584.
·For the period 1 December 2017 to 31 December 2018, Mr Tansey is assessed to pay child support of $6,453 based on his 2016-17 ATI of $59,291 and Ms Nowell’s 2016-17 ATI of $35,027.
On 24 February 2017 a Department officer, acting as a delegate of the…

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.

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Details

Case: [2019] AATA 433
Decision Date: 11 January 2019

CaseChat Overview and Summary

This matter concerned an appeal by the liable parent, Mr Tansey, against a departure determination made by the Child Support Registrar. The determination had been made in favour of the child's mother, Ms Nowell, and had increased the child support payable by Mr Tansey. The core of the dispute revolved around whether the Registrar had correctly considered Mr Tansey's income, property, and financial resources, particularly in light of compensation he had received for a medical incapacity, and whether the special needs of the child, specifically orthodontic expenses, warranted the departure from the standard assessment.

The court was required to determine whether the Child Support Registrar had erred in making the departure determination. Specifically, the court had to consider whether the Registrar had properly assessed the impact of Mr Tansey's compensation for medical incapacity on his capacity to pay child support, and whether the orthodontic expenses constituted a special circumstance of the child that justified a departure from the usual child support assessment provisions.

In reaching its decision, the court reviewed the evidence presented regarding Mr Tansey's financial position, including the nature and extent of the compensation received. It also examined the necessity and cost of the child's orthodontic treatment. The court applied the principles governing departure determinations under the *Child Support (Registration and Collection) Act 1988*, focusing on whether the existing assessment was unjust or inequitable given the specific circumstances of the parties and the child. The court found that the Registrar had failed to adequately consider the impact of the compensation on Mr Tansey's ability to pay and that the orthodontic expenses, while a significant cost, did not, in themselves, meet the threshold for a departure determination in the manner sought.

The court set aside the Registrar's departure determination and substituted its own orders, which did not include the increased child support assessment.

Orders