Heath and Cao (Child support)

This matter concerned an application by the mother, Ms. Cao, for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth) concerning child support payable by the father, Mr. Heath. The dispute centred on the father's reduced working hours and whether his earning capacity should be taken into account when assessing child support. The case was heard by S Hoffman M.

The court was required to determine whether the father's reduced working hours were substantially motivated by a desire to affect the rate of child support or to gain increased custody, rather than solely by his caring responsibilities. Specifically, the court had to consider if the criteria under subsection 117(7B) of the Act were met, which would allow the father's earning capacity to be taken into account. This involved assessing whether the father had failed to demonstrate that his decisions regarding his work arrangements were not primarily driven by the impact on his child support obligations.

The mother argued that the father's reduction from full-time to part-time work was a choice, not a necessity imposed by court orders for the children's care. She highlighted that the court orders allowed for her assistance in childcare, meaning the father could have maintained full-time employment. The father contended that his reduced hours were necessary to be personally available for the children during his allocated care times, particularly for school drop-offs and pick-ups, and that he had negotiated these hours to retain his employment and fulfil his parental responsibilities. The court noted the father's apparent enjoyment of his job and the mother's willingness to accommodate his schedule, suggesting that the decision to reduce hours was not solely dictated by logistical constraints arising from the custody orders. The mother's position was that the father's reduced hours were more likely motivated by a desire to avoid paying school fees and to pursue 50/50 custody.

The court varied the decision under review, adjusting the father's adjusted taxable income.