Hutchins and Sainsbury (Child support)

The case of *Hutchins and Sainsbury* concerned an appeal to the Full Court of the Family Court of Australia regarding child support. The primary dispute involved the assessment of child support payable by the respondent father to the applicant mother for their two children. The mother sought to have the father’s child support assessment varied upwards, arguing that his actual income was significantly higher than the income declared in his tax return.

The central legal issue before the Full Court was whether the Registrar, in assessing child support, had erred in failing to attribute to the father a higher income than that declared in his tax return. Specifically, the court had to consider the application of section 117 of the *Child Support (Registration and Collection) Act 1988* (Cth), which allows for the attribution of income where a parent is intentionally under-employing themselves or receiving unearned income. The court also considered the evidentiary burden on the applicant seeking such an attribution.

Deputy J Walsh P, delivering the judgment, reasoned that the Registrar had not been provided with sufficient evidence to establish that the father was intentionally under-employing himself or receiving unearned income. While the mother had presented evidence suggesting the father had access to significant funds and a lifestyle inconsistent with his declared income, this evidence did not definitively prove that his earning capacity was deliberately suppressed or that he was receiving income not reflected in his tax return. The court affirmed that a mere suspicion or inference of higher income is insufficient to justify an upward departure from declared income under section 117; concrete evidence demonstrating the existence of unearned income or intentional under-employment is required.

The appeal was dismissed, with the Full Court upholding the Registrar's decision not to attribute a higher income to the father.