Capron and Fielden (Child support) - [2021] AATA 4496

Capron and Fielden (Child support) [2021] AATA 4496 (19 October 2021)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2021/SC021700
APPLICANT:  Mr Capron
OTHER PARTIES:  Child Support Registrar
Ms Fielden

TRIBUNAL:Member M Douglas
DECISION DATE: 19 October 2021
DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – departure determination – whether capacity of parent to provide financial support for child significantly reduced because of commitments to support other child parent has a duty to maintain – no legal duty to maintain step grandchildren – no ground for departure established – decision under review affirmed

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 Capron and Ms Fielden are the parents of [Child 1], in regards to whom the Child Support Registrar has issued administrative assessments of child support commencing 7 January 2007.
An assessment of child support is made in accordance with the provisions of Part 5 of the Child Support (Assessment) Act1989 (the Act). Broadly speaking, those provisions prescribe a formula that applies to several variables to work out the amount of child support one parent must pay the other. If a parent believes there are special circumstances with respect to their case, the parent may apply to the Registrar under section 98B of the Act for a determination to depart from those provisions of the Act relating to the assessment of child support. The Registrar, who acts through staff employed at Services Australia - Child Support (Services Australia), describes such an application as a “change of assessment application”.
The Registrar, if satisfied that the criteria of subsection 98C(1) of the Act are met, can make one or more of the determinations listed in subsection 98S(1) to depart from the provisions of the Act relating to the assessment of child support. The first criterion specified in subsection 98C(1) is that one of the several grounds for departure listed in subsection 117(2) of the Act is established in the particular case.
On 12 November 2020 Services Australia received a change of assessment application from Mr Capron. The assessment then in force required Mr Capron to pay child support for [Child 1] at an annual rate of $15,100. That assessment was based on an adjusted taxable income for Mr Capron of $92,472 and an adjusted taxable income for Ms Fielden of $22,316.
Mr Capron’s purpose in making his change of assessment application was to have his child support obligation for [Child 1] decreased so as to take into account support he provides to his step grandchildren. [Judge A] of the [Federal Circuit Court of Australia] had ordered [in] September 2020 that those children were to reside with Mr Capron and his partner, being the children’s maternal grandmother.
On 4 February 2021, Services Australia…

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 Capron and Fielden (Child support)

Details

AGLC: Capron and Fielden (Child support) [2021] AATA 4496
Case: [2021] AATA 4496
Decision Date: 19 October 2021

CaseChat Overview and Summary

The case of *Capron and Fielden* concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth). The applicant, Mr. Fielden, sought to reduce his child support liability to his former partner, Ms. Capron, for their child. Mr. Fielden argued that his capacity to provide financial support was significantly reduced due to his commitments to support his step-grandchildren.

The primary legal issue before the court was whether Mr. Fielden's obligation to support his step-grandchildren constituted a ground for departure from the standard child support assessment. Specifically, the court had to determine if the commitment to support step-grandchildren could be considered a commitment to support another child that the parent has a legal duty to maintain, thereby significantly reducing their capacity to support the subject child.

The court reasoned that while parents have a legal duty to maintain their own children, there is no corresponding legal duty to maintain step-grandchildren. The legislation allows for departure where a parent's capacity is significantly reduced due to commitments to support another child they have a legal duty to maintain. As Mr. Fielden had no legal duty to support his step-grandchildren, this commitment did not meet the criteria for a departure determination under the Act. Consequently, the court found no ground for departure had been established.

The decision under review, which affirmed the standard child support assessment, was therefore affirmed by the court.

Orders