Gilbert and Bako (Child support)

The matter of *Gilbert and Bako (Child support)* concerned an appeal to the Full Court of the Family Court of Australia regarding a child support assessment. The appellant, Mr Gilbert, sought to appeal a decision made by a Registrar of the Child Support Registrar, which had affirmed an earlier assessment of child support payable by him to the respondent, Ms Bako. The core of the dispute revolved around the Registrar's decision to depart from the standard child support formula, specifically concerning the assessment of Mr Gilbert's child support income.

The primary legal issue before the Full Court was whether the Registrar had erred in law by failing to properly consider and apply the relevant provisions of the *Child Support (Assessment) Act 1989* (Cth) when determining Mr Gilbert's child support income. This included whether the Registrar had adequately addressed the specific circumstances of Mr Gilbert's employment and income, particularly in relation to the imputation of income and the consideration of his capacity to earn.

The Full Court found that the Registrar had made an error of law. The Court reasoned that the Registrar had not sufficiently engaged with the evidence presented by Mr Gilbert regarding his employment situation and income. Crucially, the Court held that the Registrar had failed to properly consider the provisions of section 117 of the Act, which allows for the imputation of income where a parent is intentionally under-employing themselves or has a capacity to earn income that is not being realised. The Court emphasised that such a departure from the standard assessment requires a thorough and evidenced-based consideration of the parent's earning capacity and the reasons for any shortfall.

Consequently, the Full Court allowed the appeal, set aside the Registrar's decision, and remitted the matter back to the Child Support Registrar for redetermination in accordance with the reasons of the Full Court.