Macqueen and Macqueen (Child support) - [2018] AATA 2417

Macqueen and Macqueen (Child support) [2018] AATA 2417 (10 May 2018)

DIVISION: Social Services & Child Support Division

REVIEW NUMBER: 2017/SC012802

APPLICANT: Mr Macqueen

OTHER PARTIES: Child Support Registrar

Ms Macqueen

TRIBUNAL: Member J Cuthbert

DECISION DATE: 10 May 2018

DECISION:

The tribunal sets aside the decision under review and substitutes a decision to depart from the child support assessment from 27 June 2017 until the assessment for [Child 1] ends by varying Mr Macqueen’s adjusted taxable income to $80,000.

CATCHWORDS
Child support - Departure determination - Undeclared business income - Earning capacity - A ground for departure established - 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

REASONS FOR DECISION

HISTORY

This review concerns an application for a change to a child support assessment made by Ms Macqueen on 27 June 2017.
Ms Macqueen and Mr Macqueen are the parents of [Child 1] (born 2000). At all relevant times there has been a child support assessment in place, made by the Department of Human Services – Child Support (the Department) for [Child 1]. The child support assessment is based on Ms Macqueen having a care percentage of 100% and Mr Macqueen having a care percentage of 0%.
From 1 September 2016 to 30 November 2017 Mr Macqueen was assessed to pay child support of $2,304 a year based on his 2015/16 adjusted taxable income of $33,768 and a provisional income of $14,722 for Ms Macqueen.
On 27 June 2017 Ms Macqueen applied to the Department for a departure from the assessment on the grounds that Mr Macqueen’s income, property, financial resources and earning capacity were not properly reflected in the assessment.
On 24 August 2017 a decision was made to depart from the child support assessment by varying Mr Macqueen’s adjusted taxable income to $75,000 from 1 September 2016 until the assessment for [Child 1] ends.
Mr Macqueen’s objection to that decision was disallowed on 19 October 2017. On 30 October 2017 Mr Macqueen lodged an application for a review of the objection decision with the tribunal.
The matter was heard on 10 May 2018. Mr Macqueen and Ms Macqueen both attended the hearing in person. The tribunal was assisted by a Serbian interpreter. The tribunal had access to the statement and documents provided by the Department (folios 1 to 273), documents provided by Mr Macqueen (folios A1 to 177) and documents provided by Ms Macqueen (B1 to B42).
At the hearing Mr Macqueen submitted a further document (folios A178) and Ms Macqueen submitted further documents (folios B43 to B46). Numbered copies of those documents were provided to Mr Macqueen and Ms Macqueen at the hearing.

CONSIDERATION

The rate of child support payable by a liable parent is usually based on an…

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.

Continue reading Macqueen and Macqueen (Child support)

Details

AGLC: Macqueen and Macqueen (Child support) [2018] AATA 2417
Case: [2018] AATA 2417
Decision Date: 10 May 2018

CaseChat Overview and Summary

The Full Court of the Family Court of Australia considered an appeal by the father, Mr Macqueen, against a departure determination made by the Child Support Registrar. The dispute concerned the assessment of the father's child support liability, with the Registrar having made a determination to depart from the formula assessment based on the father's alleged undeclared business income and earning capacity. The mother, Mrs Macqueen, sought the departure determination.

The primary legal issue before the Full Court was whether the Child Support Registrar had erred in making the departure determination. Specifically, the Court had to consider whether the Registrar had correctly applied the principles and criteria for departure under the *Child Support (Registration and Collection) Act 1988* (Cth), particularly in relation to the father's earning capacity and the existence of undeclared business income.

The Full Court reasoned that the Registrar had failed to adequately consider all relevant evidence and had made findings that were not supported by the material before her. The Court noted that while there was evidence suggesting the father had an earning capacity beyond that declared, the Registrar had not properly assessed this capacity or the extent to which it should be taken into account for the purposes of child support. The Court applied the principles that a departure determination requires a clear and cogent case to be made out, and that the Registrar must be satisfied that the formula assessment would be unfair.

The Full Court allowed the father's appeal, setting aside the departure determination made by the Registrar. The Court substituted its own decision, finding that a ground for departure had been established, but remitted the matter back to the Registrar for redetermination of the child support amount, with specific directions on how to assess the father's earning capacity.

Orders