Marshall v Marshall

[2017] FCCA 1541

FEDERAL CIRCUIT COURT OF AUSTRALIA

MARSHALL v MARSHALL & ANOR [2017] FCCA 1541

Catchwords:
CHILD SUPPORT – Appeal from a decision of the AAT – four grounds of appeal set out by the applicant – no error of law shown – appeal dismissed.

Legislation:

Administrative Appeals Tribunal Act 1975, s.44AAA

Child Support (Assessment) Act 1989, ss.98S, 114

Cases cited:

Child Support Registrar & Crowley and Anor [2015] FamCAFC 76

Haritos v Commission of Taxation [2015] FCAFC 92

Scott & Child Support Registrar & Anor (SSAT Appeal) [2011] FMCAfam 1212

Applicant: MR MARSHALL

First Respondent: MS MARSHALL

Second Respondent: CHILD SUPPORT REGISTRAR

File Number: BRG 1138 of 2016

Judgment of: Judge Cassidy

Hearing date: 19 May 2017

Date of Last Submission: 19 May 2017

Delivered at: Brisbane

Delivered on: 12 July 2017

REPRESENTATION

The Applicant appeared in person

No appearance by the First Respondent

Solicitors for the Second Respondent: Mr C Bishop, Department of Human Services

ORDERS

1. That the Notice of Appeal filed by the Applicant on 7 December 2016 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Marshall v Marshall & Anor is approved pursuant to s.110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1138 of 2016

MR MARSHALL

Applicant

And

MS MARSHALL

First Respondent

CHILD SUPPORT REGISTRAR

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application filed by way of a Notice of Appeal on 7 December 2016 where the applicant seeks to appeal a decision of the Administrative Appeals Tribunal (‘the AAT’). That decision was made on 27 October 2016.

2. Any appeal from a decision of the AAT in relation to child support is an appeal on a question of law (s.44AAA of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’)).

3. The Notice of Appeal sets out the grounds of appeal. The applicant’s question of law is:

   “Whether the Tribunal erred in deciding that the Child Support payable by the Appellant should be varied by concluding (for the purposes of its Decision) that it should, on just and equitable grounds, vary the Appellant’s adjusted taxable income to a hypothetical sum of $64,000 rather than utilising the sum of about $55,000 which the Tribunal found to be the total of the applicant’s income and financial resources in the 2015/16 financial year.”

4. The applicant in his Notice of Appeal sets out four grounds of appeal:

   “[1] The Tribunal,  after having determined  on the facts  before it, that the Appellant had income and financial resources of “about $55,000” in the 2015/16 financial year, erred in law when concluding that the Appellant's income for the purposes of calculation of Child Support should be “grossed up” by having regard to the Appellant's net income after tax of $51,146 and the tax tables (applicable to that sum) to arrive at a hypothetical (adjusted) taxable income of $64,000.

   [2] The Tribunal erred in law by applying the hypothetical sum of $64,000 rather than the actual