Lucena and Lucena (Child support)

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.