We are warning parents to beware when objecting to a review by the Child Support Registrar in relation to a child support assessment, called a departure application, following a recent decision of the Full Family Court of Australia Child Support Registrar v Ahern and Anor [2014] FamCAFC 105.
In this Alert, Partner Geoff Wilson and Associate Helen Davison discuss this case and the implications for parents paying or receiving child support via the Child Support Agency.
What are the facts of the case?
In this case a father objected to his child support assessment for the period 1 May to 29 July 2010 and lodged a departure application with the Child Support Registrar (the Registrar). Not happy with the Registrar's decision, the father appealed to the Social Security Appeals Tribunal (SSAT). The SSAT set aside the Registrar's decision and substituted it for their decision for the periods 1 May to 30 June 2010 and 1 July 2010 to 30 June 2013. Because the SSAT made a decision about a period of 3 years which was not contained in the father's departure application the father appealed to the Federal Circuit Court.
Judge Scarlett of the Federal Circuit Court agreed with the father and said that the SSAT by considering other periods outside the father's departure application was opening a "Pandora's Box" because that would mean that the SSAT would have the power to make decisions about matters not in issue between the parties. The Registrar appealed the decision to the Full Court of the Family Court.
The issue for the Full Court became whether the SSAT had the power to determine the amount of child support payable for periods other than the particular period which was the subject of the Registrar's decision.
What did the Full Court decide?
The Full Court of the Family Court decided that under the relevant child support legislation the Registrar has the power to make determinations for different periods when deciding departure applications. The Full Court also held that the SSAT may for the purposes of reviewing an original decision by the Registrar exercise all the powers of the Registrar, meaning it also has the power to make decisions about different periods to that contained in the departure application. The only requirement is that the Registrar and SSAT exercise procedural fairness by ensuring that the period of review is clearly identified.
The Full Court concluded by saying "Thus even at the initial stage of the departure application, the 'Pandora's box' which was of concern by Judge Scarlett in his reasons for judgement in this case, will have been opened."
How could this decision affect you?
This decision is significant because up until this case it was assumed by most lawyers that when a person objects to a child support assessment that the Registrar and the SSAT only had the power to consider the period contained in their departure application and could not review different periods.
If you receive a child support assessment for a specific period which you are unhappy with it is now vital that you consider the benefit of objecting to that assessment verses the risk that the entire or a another part of the period that you have been paying or receiving child support could be reviewed. While there will certainly be times when it is necessary to object to a child support assessment, the decision should be made in consultation with a lawyer who specialises in family law to advise you on the risks involved and to assist with the drafting of the departure application. This is particularly important if you have been paying or receiving child support for several years or the amount of child support paid is significant as the impact of the Registrar or SSAT opening 'Pandora's box' will be even greater for you.
Award-winning law firm HopgoodGanim offers commercially-focused advice, coupled with reliable and responsive service, to clients throughout Australia and across international borders.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
