Lane and Carter-Lane (Child support) - [2019] AATA 2542

Lane and Carter-Lane (Child support) [2019] AATA 2542 (5 July 2019)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2018/MC015555
APPLICANT:  Mr Lane
OTHER PARTIES:  Child Support Registrar
Ms Carter-Lane

TRIBUNAL:Member R Anderson
DECISION DATE: 05 July 2019
DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that:

· The annual rate of child support payable by Mr Lane is to be varied to $21,547 from 25 June 2018 to 17 July 2018; and
· The annual rate of child support payable by Mr Lane is to be varied to $3,000 from 18 July 2018 to 31 March 2020.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the liable parent – whether earning capacity is to be considered - 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

BACKGROUND

Mr Lane and Ms Carter-Lane are the parents of [Child 1] and [Child 2]. According to records of the Department of Human Services – Child Support (the Department), the child support assessment was registered on 22 February 2013. The Department has been responsible for the collection of child support from Mr Lane since that time.
The child support liability is generally calculated in accordance with the administrative assessment, as provided in the Child Support (Assessment) Act 1989 (the Act). The child support assessment is generally based on the income recorded by each parent in their most recently completed tax returns, as lodged with the Australian Taxation Office (ATO), or the most recent estimate.
Following termination of his employment from [Employer 1], effective 13 November 2017, the Department accepted an estimate from Mr Lane in respect of his income from 8 January 2018 to 30 June 2018 of $0. Consequently, the annual rate of child support payable by Mr Lane reduced firstly to the annual rate of $2,780, later replaced by an annual rate of nil. Following acceptance by the Department of an estimate from Mr Lane of $4,000 per annum in respect of the 2018/2019 year, the annual rate of child support payable by Mr Lane remained at nil.
It is open to either parent to lodge an application for a departure from the administrative assessment under Part 6A of the Act if they consider the administrative assessment results in an unfair amount of child support payable by one parent. Ms Carter-Lane lodged such an application on 25 June 2018, on the basis that the administrative assessment produced an unfair outcome due to the income, property and financial resources available to Mr Lane (Reason 8A). In response, Mr Lane lodged a cross-application in respect of the earning capacity of Ms Carter-Lane (Reason 8B).
While a care decision in respect of [Child 1]…

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.

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Details

Case: [2019] AATA 2542
Decision Date: 5 July 2019

CaseChat Overview and Summary

The case of *Lane and Carter-Lane* concerned a review of a departure determination made by the Child Support Registrar. The dispute involved the liable parent, Mr Carter-Lane, and the other parent, Ms Lane, regarding child support payments. The matter came before the court for a review of the Registrar's decision.

The primary legal issue before the court was whether the Child Support Registrar had erred in its assessment of Mr Carter-Lane's income, property, and financial resources when making the departure determination. Specifically, the court was required to consider whether the Registrar had correctly applied the relevant provisions of the *Child Support (Registration and Collection) Act 1988* (Cth) concerning the consideration of a liable parent's earning capacity.

The court found that the Registrar had failed to properly consider Mr Carter-Lane's earning capacity. The legal principle applied was that under the *Child Support (Registration and Collection) Act 1988*, a liable parent's earning capacity is a relevant factor to be taken into account when determining child support obligations, particularly in circumstances where their actual income may not reflect their full financial capacity. The court determined that the Registrar's decision was not supported by the evidence and did not properly reflect the legislative intent.

Consequently, the court set aside the Child Support Registrar's departure determination and substituted its own decision.

Orders