Crawford and Samuel (Child support) - [2018] AATA 4345

Crawford and Samuel (Child support) [2018] AATA 4345 (13 September 2018)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2018/MC013902
APPLICANT:  Ms Crawford
OTHER PARTIES:  Child Support Registrar
Mr Samuel

TRIBUNAL:Senior Member B Harvey
DECISION DATE: 13 September 2018
DECISION:

The Tribunal affirms the decision under review.

CATCHWORDS
CHILD SUPPORT – refusal to make departure determination – earning capacity of parent – unpaid leave – decision justified by caring responsibilities – no ground for departure – 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

OVERVIEW

This is a review of a decision by the Child Support Registrar (the Registrar) to disallow Ms Crawford’s objection to an earlier decision, leaving that earlier decision unchanged. That earlier decision was the Registrar’s refusal, on application by Ms Crawford, to make a ‘departure determination’ altering the way in which the Registrar worked out Mr Samuel’s liability to pay Ms Crawford child support in respect of their infant daughter [Child 1].

BACKGROUND

The relevant background is somewhat out of the ordinary. Ms Crawford and Mr Samuel have not cohabited for any sustained period. They were in a romantic relationship which commenced in or about September 2014. Ms Crawford was aware and accepted that Mr Samuel ‘wished to have multiple relationships’.[1] Mr Samuel submitted that he and Ms Crawford ‘both had other partners’ and that [Ms A] ‘joined (the) polyamorous relationship in June 2016’.[2]
[1] Per the fragment of her affidavit at page 222 of the papers.
[2] Page 242 of the documents provided by the Registrar (the T documents).
At some point, Ms Crawford and Mr Samuel considered having a child; Ms Crawford submits that Mr Samuel offered to become monogamous with her and to marry her if she became pregnant. Ms Crawford did become pregnant. It is agreed that the two discussed parenting options and planned that Ms Crawford would return to her work and Mr Samuel would take leave without pay to become the ‘stay at home dad’ to their child.
[Ms A] also fell pregnant at about the same time. The evidence is that Mr Samuel and [Ms A] agreed that Ms A would also return to work after the birth and Mr Samuel would also be a stay at home dad for their child.
It would appear that Ms Crawford was aware that she and [Ms A] were both seeking to become pregnant and that Ms Crawford contemplated remaining in the polyamorous relationship.[3] However, in November 2016, Ms Crawford decided to leave the relationship. Mr Samuel considers that she unilaterally ended the agreement that they had concerning the parenting for their child.[4]
[3] See the email chain starting at page 223 of the T documents, with emails from 17 August 2016 and earlier.

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.

Keep reading for free

Create a free CaseChat account to read Crawford and Samuel (Child support) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] AATA 4345
Decision Date: 13 September 2018

CaseChat Overview and Summary

This matter concerned an appeal by Ms Crawford against a decision of the Registrar of Child Support not to make a departure determination regarding the child support assessment for her child with Mr Samuel. The dispute centred on Mr Samuel's earning capacity, as he was on unpaid leave from his employment as a [profession] for two years, resulting in minimal income. Ms Crawford argued that Mr Samuel's earning capacity as a [profession] was significantly greater than his declared income and that a fairer assessment should reflect this.

The court was required to determine whether the conditions for making a departure determination under subsection 117(7B) of the Child Support (Registration and Collection) Act 1988 were met. Specifically, the court had to consider whether Mr Samuel's choice to take unpaid leave, which markedly reduced his income, was justified by his health or caring responsibilities, and whether it was not a major purpose of the choice to affect child support.

The court found that Mr Samuel's decision to take unpaid parental leave satisfied the first condition of subsection 117(7B) as it was a choice that markedly reduced his income. While the Registrar had concluded that this choice was not justified by caring responsibilities, the court disagreed. The court reasoned that decisions regarding the arrangement of parental time and effort for child-rearing are made by parents and can take into account various life aspects beyond just financial considerations. The court accepted Mr Samuel's evidence that he and Ms A chose for one of them to be a full-time carer for their young child, [Child 2], and considered this choice justified by their parental duty, irrespective of financial implications or the availability of paid childcare. The court emphasised that fathers and mothers bear the same duty to support a child, and therefore, a father assuming the role of full-time carer should not be viewed differently from a mother doing so.

The court affirmed the decision of the Registrar, finding that Mr Samuel's choice to take unpaid leave was justified by his caring responsibilities. Consequently, the conditions for a departure determination under subsection 117(7B) were not met, and no departure determination was made.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

I conducted a telephone hearing from Adelaide on 13 September 2018. Each parent gave sworn evidence. There is no dispute that Mr Samuel has minimal income. It is agreed that he is on leave without pay for two years from his employment as a [profession]. He said at hearing that he has some income from a blog; he described it as ‘negligible’ and there is no suggestion to the contrary. Ms Crawford submits that, as a [profession], Mr Samuel is choosing not to utilise a substantial earning capacity, and that a fairer assessment would have regard to that. Subsection 117(7B) imposes strict conditions, all of which must be satisfied before the Registrar (or the Tribunal, standing in the Registrar’s place) can determine that a person’s earning capacity ‘is greater than is reflected in his or her income for the purposes of this Act.’ I reproduce the entire subsection as an attachment to this statement of reasons. To paraphrase, the three conditions are that:(a)The person has a made a choice of the specified type (which is likely to have markedly reduced their income);(b)That choice was not justified by the person’s health or caring responsibilities; and(c)The person has not satisfied the Registrar that it was not a major purpose of the choice to affect child support. There is no dispute and I find that Mr Samuel’s decision to take unpaid parental leave satisfies the condition in (a); this could be either via its subparagraph (a)(ii) or (a)(iii). It is not suggested that the state of Mr Samuel’s health played any part in his decision. As Ms Crawford pointed out, the Registrar both at first instance and on objection considered that Mr Samuel’s decision was not justified by his caring responsibilities. As I commented at the time, I am required to make my decision afresh. I am not bound by the approach taken by the Registrar and in this particular respect, I disagree. In my view, decisions about how two parents of a child will arrange their time and effort to maintain the child are decisions made by the parents, not by others. The parents, in making such choices, could reasonably be expected to take myriad aspects of life into account when making such a decision. A choice which results in lower combined income for a time for the couple might appear to be one that ‘doesn’t make sense financially’ as Ms Crawford submitted, but is justified on a balance of all of the considerations of which finance is but one. Equally, it is not to the point that there are available to the couple other alternatives that would be likely to produce a higher rate of child support liable to be paid by one of them for another child. [5][5] See Mabry & Mabry & Anor (SSAT Appeal) [2010] FMCAfam 388 At the commencement of Mr Samuel’s leave, [Child 2] was less than [a year] old; I consider that a child of that age would have a continual need for substantial care. There being no evidence to the contrary, I accept Mr Samuel’s evidence that he and [Ms A] made a choice that one of them would be a full-time carer for [Child 2]. I consider that it was their choice as parents to make; the fact that paid child care may have been an alternative in no way means that their decision was not justified on the basis of their duty to their daughter. It also seems to me that if it had been [Ms A] who made that choice, vanishingly few people would consider the choice to be unjustified by her caring responsibilities. Since a father and a mother bear exactly the same duty to support a child, it seems to me that there should be no difference if the couple instead agree that it will be the father who assumes the role of full-time carer.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.