Emmott and Emmott (Child support) - [2017] AATA 2862

Emmott and Emmott (Child support) [2017] AATA 2862 (14 November 2017)

DIVISION: Social Services & Child Support Division

REVIEW NUMBER: 2017/MC011486

APPLICANT: Ms Emmott

OTHER PARTIES: Child Support Registrar

Mr Emmott

TRIBUNAL: Member J Cuthbert

DECISION DATE: 14 November 2017

DECISION:

The tribunal sets aside the decision under review and substitutes a decision to depart from the child support assessment from 1 July 2016 until the child support assessment for [Child 1] ends by varying:

the child support percentages to 85% for Mr Emmott and 15% for Ms Emmott; and
the costs of the children to the highest amount payable in the relevant Cost of the Children Table for two children of [Child 1] and [Child 2]’ ages.

Member J Cuthbert

CATCHWORDS
Child support – Departure determination - Income and financial resources of parents – Business income – Costs of children – Period of departure - 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

HISTORY

This review concerns an application for a change to a child support assessment made by Ms Emmott on 15 November 2016.
Ms Emmott and Mr Emmott are the parents of [Child 1] (born 2001) and [Child 2] (born 2004). There has been a child support assessment in place, made by the Department of Human Services – Child Support (the Department), since 12 April 2013. The child support assessment is currently based on Ms Emmott having care percentages of 100% for both children.
Following a departure decision made by an officer of the Department on 24 February 2015, Mr Emmott was assessed to pay child support of $12,000 a year from 20 November 2014 to 31 March 2015.
From 1 April to 28 July 2015 Mr Emmott was assessed to pay the minimum annual rate of child support of $408 as he had estimated his 2014/15 income to be nil.
From 29 July 2015 the annual rate of child support payable increased to $23,044 as Mr Emmott was assessed on a provisional income for 2013/14 of $145,822 and Ms Emmott on her 2013/14 adjusted taxable income of $98,598.
However, on 3 August 2015 Mr Emmott estimated his 2015/16 income to be $35,975 and his child support liability reduced to $3,134 a year. The annual rate was further reduced to $2,836 from 1 May 2016 as Ms Emmott’s 2014/15 adjusted taxable income of $155,930 was used in the assessment.
From 1 July 2016 Mr Emmott was assessed to pay child support of $3,286 a year based on a provisional income of $38,000 and Ms Emmott’s 2014/15 adjusted taxable income. The annual rate increased to $3,652 from 1 November 2016 based on a provisional income of $38,407 for Mr Emmott and Ms Emmott’s 2015/16 adjusted taxable…

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 Emmott and Emmott (Child support)

Details

AGLC: Emmott and Emmott (Child support) [2017] AATA 2862
Case: [2017] AATA 2862
Decision Date: 14 November 2017

CaseChat Overview and Summary

The Full Court of the Family Court of Australia considered an appeal by the father, Mr Emmott, against a departure determination made by the Child Support Registrar. The dispute concerned the assessment of child support payable by the father for the parties' two children. The Registrar had made a departure determination, increasing the father's child support liability, on the basis that the father's actual income and financial resources were significantly higher than his assessed income. The father sought to have this determination set aside.

The primary legal issue before the Full Court was whether the Registrar had erred in making the departure determination. Specifically, the Court had to consider whether the Registrar had correctly applied the principles of the *Child Support (Registration and Collection) Act 1988* (Cth) in assessing the father's income and financial resources, and in determining that the father's actual circumstances warranted a departure from the standard assessment. This involved examining the Registrar's findings regarding the father's business income and the costs associated with the children.

The Full Court reasoned that the Registrar had made a factual error in calculating the father's business income. The Registrar had failed to properly account for legitimate business expenses incurred by the father, which reduced his actual disposable income. The Court reiterated the principle that a departure determination should only be made where the standard assessment is unfair, and that the assessment of income must be based on accurate financial information. The Court found that the Registrar's miscalculation of the father's income meant that the threshold for a departure determination had not been met.

Consequently, the Full Court set aside the departure determination made by the Child Support Registrar and substituted an order that no departure determination be made.

Orders