Pecci and Deacon (Child support) - [2018] AATA 4349

Pecci and Deacon (Child support) [2018] AATA 4349 (10 October 2018)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2018/AC014559
APPLICANT:  Mr Pecci
OTHER PARTIES:  Child Support Registrar
Ms Deacon

TRIBUNAL:Member M Kennedy
DECISION DATE: 10 October 2018
DECISION:

The decision under review is affirmed.

CATCHWORDS
CHILD SUPPORT – departure determination – earning capacity of parent – change of industry or occupation from business owner to employee – whether affecting the child support assessment a major purpose of decision – no ground for departure – 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

Mr Pecci and Ms Deacon are the parents of [Child 1] and [Child 2] in respect of whom a child support assessment is in place. [Child 1] and [Child 2] are in the shared care of their parents. Under the current child-support assessment Mr Pecci has a liability to pay child support of $3708 per annum to Ms Deacon, based on Mr Pecci’s adjusted taxable income for 2016 2017 of $55,054 and Ms Deacon’s adjusted taxable income for 2016 and 2017 of $22,903.
Mr Pecci applied for a change of assessment on 28 September 2017. Mr Pecci’s application was refused on 24 March 2018 as a ground to depart from the administrative assessment was found not to be established. Mr Pecci objected to this decision, but an objection officer disallowed the objection on 21 June 2018.
Mr Pecci applied to the Tribunal for review on 11 July 2018.

Procedural matters

For completeness I record that on his application Mr Pecci requested that he be represented in the Tribunal by [Representative A] of [named agency]. At a directions hearing on 5 September 2018 I refused permission for [Representative A] to represent Mr Pecci in these proceedings. I explained to Mr Pecci that my understanding was that [Representative A] was not an admitted legal practitioner in this state, and I was disinclined to permit a lay advocate to participate in child-support proceedings. I indicated that I would consider favourably any subsequent request for Mr Pecci to be represented by an admitted legal practitioner, or any information indicating that [Representative A] was an admitted legal practitioner, but no such request or information was forthcoming.
At the directions hearing Mr Pecci also explained that he did not wish to participate in the proceedings in such a way that required direct contact either in person or by telephone with Ms Deacon. Mr Pecci relied on medical evidence to support his contention that doing so would cause him significant distress. At the directions hearing I suggested that in these circumstances it may be desirable for the review to be undertaken on the papers, and I could formulate directions to allow this to happen in 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.

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Details

Case: [2018] AATA 4349
Decision Date: 10 October 2018

CaseChat Overview and Summary

The matter of *Pecci and Deacon* concerned an appeal to the Child Support Registrar regarding a departure determination. The primary dispute involved the earning capacity of the father, Mr. Deacon, who had transitioned from being a business owner to an employee. The mother, Ms. Pecci, sought a departure from the child support assessment, arguing that Mr. Deacon's change in occupation significantly impacted his earning capacity and, consequently, his child support obligations. The decision was made by Member M Kennedy.

The central legal issue before the Registrar was whether Mr. Deacon's change of industry and occupation from a business owner to an employee constituted a ground for departure from the child support assessment under the relevant legislation. Specifically, the Registrar had to determine if this change was undertaken with the major purpose of reducing his child support liability, or if it was a genuine change in his employment circumstances that warranted consideration for a departure.

Member Kennedy reasoned that for a departure determination to be made, the change in circumstances must be significant and demonstrably undertaken with the purpose of reducing child support. In this instance, the Registrar found that while Mr. Deacon had indeed changed his employment status, there was insufficient evidence to establish that the *major purpose* of this change was to avoid his child support obligations. The Registrar applied the principles that a parent is generally assessed on their actual or potential earning capacity, and a voluntary reduction in income, unless primarily motivated by a desire to reduce child support, does not automatically trigger a departure.

The Registrar affirmed the original decision, finding no grounds for a departure determination. Consequently, the child support assessment remained unchanged.

Orders