Maher and Cheetham (Child support) - [2018] AATA 955

Maher and Cheetham (Child support) [2018] AATA 955 (5 March 2018)

DIVISION: Social Services & Child Support Division

REVIEW NUMBER: 2017/SC012147

APPLICANT: Mr Maher

OTHER PARTIES: Child Support Registrar

Ms Cheetham

TRIBUNAL: Member J Cuthbert

DECISION DATE: 5 March 2018

DECISION:

The tribunal affirms the decision under review.

CATCHWORDS
Child support – Departure determination - Earning capacity of parent – All three criteria met - Obligation on the parties to make a full and complete disclosure of their financial affairs - Decision under review affirmed

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

HISTORY

This review concerns an application for a change to a child support assessment made by Ms [Cheetham] on 18 January 2017.
Ms [Cheetham] and Mr [Maher] are the parents of [Child 1] (born 2010), [Child 2] (born 2009) and [Child 3] (born 2002) as well as two adult children. There has been a child support assessment in place, made by the Department of Human Services – Child Support (the Department), since 2012. The child support assessment is currently based on Ms [Cheetham] having care percentages of 100% for [Child 1] and [Child 2] and Mr [Maher] having a care percentage of 100% for [Child 3].
From 11 January 2017 Ms [Cheetham] was assessed to pay child support of $6,131 a year based on her 2015/16 adjusted taxable income of $87,416 and a provisional income of $19,745 for Mr [Maher]. The annual rate payable by Ms [Cheetham] reduced to $4,382 on 12 January 2017 as she estimated her income to be $69,007. The annual rate decreased to $3,444 from 22 February 2017 as she reduced her estimated income to $59,178.
On 18 January 2017 Ms [Cheetham] applied to the Department for a departure from the assessment on the grounds that Mr [Maher’s] income, property, financial resources and earning capacity were not properly reflected in the assessment.
On 7 April 2017 a decision was made to depart from the child support assessment by varying Mr [Maher’s] adjusted taxable income to $150,800 from 1 January 2017 to 31 March 2020.
Mr [Maher] lodged an objection to that decision. On 16 June 2017 his objection was disallowed. On 18 July 2017 Mr [Maher] lodged an application for a review of the objection decision with the tribunal.
The matter was heard on 1 March 2018. Mr [Maher] and Ms [Cheetham] both attended the hearing in person. Mr [Maher] was represented by counsel, Ms [A], instructed by Mr [B]. Ms [Cheetham] was represented by Mr [C]. The Child Support Registrar was not represented at the hearing.
The tribunal had access to the statement and documents provided by the Department (folios 1 to 344 and 345 to 386), documents provided by Mr [Maher] (folios A1 to A138) and documents…

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 Maher and Cheetham (Child support)

Details

AGLC: Maher and Cheetham (Child support) [2018] AATA 955
Case: [2018] AATA 955
Decision Date: 5 March 2018

CaseChat Overview and Summary

The case of *Maher and Cheetham* concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth). The applicant sought to depart from the assessed rate of child support payable by the respondent. The primary dispute revolved around the respondent's earning capacity and whether it was appropriate to assess child support based on this capacity rather than their actual income.

The court was required to determine whether the criteria for a departure determination were met, specifically focusing on whether the respondent's failure to provide full and complete disclosure of their financial affairs, and their earning capacity, warranted a departure from the assessed child support amount. The court also considered the obligation on parties to make full and frank disclosure of their financial circumstances in child support matters.

In its reasoning, the court affirmed the decision under review, finding that all three criteria for a departure determination had been met. The court emphasised the importance of full financial disclosure and concluded that the respondent's earning capacity was a relevant factor in assessing child support. The court applied the principles that parties have a duty to disclose their financial affairs and that a failure to do so, or the existence of an underutilised earning capacity, can be grounds for a departure from the standard assessment. The court made no specific orders as the decision under review was affirmed.

Orders