Emerson and Foster and Anor

FEDERAL CIRCUIT COURT OF AUSTRALIA

EMERSON & FOSTER & ANOR [2019] FCCA 2774

Catchwords:
CHILD SUPPORT – Application seeking judicial review of child support decision of the Administrative Appeals Tribunal – question of law – departure order based on financial resources available to the Appellant – legal error found – appeal upheld.

Legislation:

Child Support (Assessment) Act 1989 (Cth), ss.98C(1)(b), 117(2), 117(4) 117(6), 117(7)

Administrative Appeals Tribunal Act 1975 (Cth), s.44AAA

Cases cited:

Collector of Customs v Pressure Tanker Pty Ltd and Pazzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Collector of Customs v Pressure Tanker Pty Ltd and Pazzolanic Enterprises Pty Ltd (1993) 43 FCR 280
NAXT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 279
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51
Child Support Registrar & Crabbe and Anor [2014] FamCAFC 10
Henriques & Hatzis (SSAT Appeal) [2014] FCCA 1194
Haritos v Federal Commissioner of Taxation [2015] FCAFC 92
Bond v Child Support Registrar & Anor [2018] FCCA 422

Applicant: MR EMERSON

First Respondent: MS FOSTER

Second Respondent: CHILD SUPPORT REGISTRAR

File Number: MLG 2878 of 2018

Judgment of: Judge Bender

Hearing date: 20 June 2019

Date of Last Submission: 20 June 2019

Delivered at: Melbourne

Delivered on: 1 October 2019

REPRESENTATION

Counsel for the Applicant: Self-represented

Solicitors for the Applicant: Not applicable

Counsel for the First Respondent: No appearance

Solicitors for the First Respondent: Not applicable

Counsel for the Second Respondent: Ms Nicholson

Solicitors for the Second Respondent: Sparke Helmore

ORDERS

1. The Notice of Appeal filed by the Appellant on 25 September 2018 and the Amended Notice of Appeal filed on 18 December 2018 be allowed.

2. The decision of the Administrative Appeals Tribunal (Social Services and Child Support Division) made 20 August 2018 and released 24 August 2018 be set aside and the matter be remitted to the Administrative Appeals Tribunal (Social Services and Child Support Division) for rehearing.

IT IS NOTED that publication of this judgment under the pseudonym Emerson & Foster & Anor is approved pursuant to s.110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2878 of 2018

MR EMERSON

Applicant

And

MR FOSTER

First Respondent

CHILD SUPPORT REGISTRAR

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an appeal from a decision of the Administrative Appeals Tribunal (Social Services and Child Support Division) (“the Tribunal”) made 20 August 2018 and released 24 August 2018. The Tribunal set aside the decision under review and substituted a decision that:

   ·From 4 November 2016 to 31 December 2019 Mr Emerson’s adjusted taxable income is varied to $51,844.00;

   ·From 1 January 2017 the annual rate payable by Mr Emerson is increased by $3,088.00;

   ·From 1 January 2018 the annual rate payable by Mr Emerson is increased by $3,182.00;

   ·From 1 January 2019 until 31 December 2019 the annual rate payable by Mr Emerson is increased by $3,365.00.

2. The Appellant filed a Notice of Appeal on 25 September 2018.

3. With the leave of…