Lucena and Lucena (Child support) - [2020] AATA 3658

Lucena and Lucena (Child support) [2020] AATA 3658 (23 July 2020)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2020/MC018394
APPLICANT:  Mr Lucena
OTHER PARTIES:  Child Support Registrar
Ms Lucena

TRIBUNAL:Member P Noonan
DECISION DATE: 23 July 2020
DECISION:

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

·From 20 August 2019 to 14 May 2020 Mr Lucena’s adjusted taxable income is varied to $64,626.

CATCHWORDS

CHILD SUPPORT – departure determination – earning capacity of paying parent – reduction in income not due to state of health or caring responsibilities - 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 Lucena and Ms Lucena are the parents of two children under the age of 13. Ms Lucena also has three other dependent children in her care not subject to this child support assessment.
The Child Support (Assessment) Act 1989 (the Act) provides for an administrative assessment of the child support payable. It uses a formula, which contains variables such as the parents’ adjusted taxable incomes and their percentages of care of the children. The Act also provides for a departure from the administrative assessment in certain circumstances.
A child support case was first registered with the Department of Human Services (the Department) on 17 June 2019 and child support has been registered for collection by the Department since then. The Department maintains a case end date of 1 July 2035.
On 20 August 2019 Mr Lucena applied for a departure from the assessment of child support payable. The relevant assessment of child support payable at that time, based upon an administrative assessment was that Mr Lucena pay Ms Lucena an annual amount of child support of $5,458, based upon an estimated income of $54,958 for Mr Lucena.
On 7 November 2019 a delegate of the Child Support Registrar found that a ground for departure was established and decided that for the period 20 August 2019 to 30 June 2020 the adjusted taxable income of Mr Lucena be set at $64,626 per annum.
An objection was lodged by Mr Lucena and on 30 January 2020 a department objections officer part allowed the objection and decided that for the period 20 August 2019 to 30 November 2021, Mr Lucena’s adjusted taxable income be set at $64,626 per annum.
Mr Lucena subsequently lodged an appeal with the Tribunal for an independent hearing of the Department’s decision. A hearing for the matter was subsequently held on 22 July 2020. The Child Support Registrar did not attend the hearing. Mr Lucena attended the hearing by conference telephone and gave evidence to the Tribunal on affirmation. Ms Lucena also attended the hearing by conference telephone and gave evidence to the…

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.

Keep reading for free

Create a free CaseChat account to read Lucena and Lucena (Child support) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] AATA 3658
Decision Date: 23 July 2020

CaseChat Overview and Summary

This matter concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth) by the paying parent, Mr Lucena, against a child support assessment made by the Child Support Registrar. The dispute centred on whether the paying parent's reduced income, which was not attributable to his state of health or caring responsibilities, should lead to a departure from the assessment. The decision was made by the Federal Circuit and Family Court of Australia.

The primary legal issue before the court was whether the paying parent had established grounds for a departure from the child support assessment, specifically concerning his earning capacity. The court was required to consider whether the reduction in his income was a relevant factor that justified a departure, given the statutory limitations on such departures.

The court reasoned that a departure determination requires the applicant to demonstrate that the assessment is not fair and just. In this instance, the paying parent's voluntary reduction in income, which was not linked to health or caring responsibilities, did not meet the criteria for a departure. The court applied the principles that a parent cannot unilaterally reduce their income to avoid child support obligations and that earning capacity, rather than actual income, is a key consideration. The court found that the paying parent retained the capacity to earn a higher income and that the assessment should reflect this earning capacity.

The court set aside the decision under review and substituted its own decision, finding that the paying parent had not established grounds for a departure determination.

Orders