Alan Weiss

31st March, 2020

Alan Weiss developed after he experienced himself how devastating divorce proceedings can be. I witnessed firsthand my own future security, and that of my familys, being destroyed by acrimonious and costly divorce litigation. I created to help people avoid an experience like this and lose thousands of dollars. Instead the system will assist them in getting on with their lives.

The Child Support Registrar appeals successfully against a finding by the primary judge that procedural fairness was denied to the mother when child support assessment was changed.

In this matter the father’s child support assessment was reduced after he stopped working at his employer. The mother successfully appealed this reduced assessment. The Registrar of Child Support now appeals that decision arguing that the judge misconceived the Tribunal’s process when changing the assessment.

Background to the appeal

The Department of Human Services is responsible for collection of child support in this matter. The father pays child support that was assessed on his income at the time. His employment at that employer ended and he gave the department an estimate of what his new anticipated earnings would be. He was assessed to pay a reduced rate of child support based on that estimate. (Second assessment)

The mother then applied to change this second assessment, claiming the father left his employment “on his own accord” and the assessment should be based on what he earned before. The Case Officer held that the second assessment was “unfair” due to the father’s earning capacity. She further held that the father didn’t satisfy her that he did not resign to affect the rate of child support payable by him. The Case Officer changed the second assessment.

The father’s objection against this change was disallowed. He then applied to the Tribunal for a review of the decision. By now the father obtained new employment.

On review evidence was introduced and accepted that he father was in fact asked to leave his previous employment. The Tribunal held that the Case Officer’s ground for changing the second assessment was thus not established. The Tribunal however concluded that the second assessment should be changed to reflect the father’s actual income.

The mother then appealed this decision/change of the Tribunal. The primary court held that the Tribunal did not put the mother on notice that a determination that could cause an overpayment of child support was being considered. She was not given an opportunity to respond. The judge further held that if there is a possibility of an overpayment, it could cause hardship; to deprive the Appellant (the mother) of the opportunity to make submissions on the point of hardship to her and her children would be lacking procedural fairness. Her appeal was allowed based on the fact that she was denied procedural fairness in the Tribunal process. The amended assessment was set aside.

The Child Support Registrar now appeals this order made by the primary judge.

The Appellant’s (the Child Support Registrar) legal arguments

The Child Registrar argues that the primary judge’s approach that the mother was denied procedural fairness was misconceived. The judge misconceived what the Tribunal had done.

Respondent’s legal arguments

The mother filed a Notice of Contention seeking to uphold the order made by the primary judge.

The Court’s findings

  • The Court firstly considered the statutory framework within which both the Registrar and the Tribunal must make certain determinations or changes.
  • The mother at some point sought that the father’s liability to pay child support must be based on his “earning capacity” rather than his actual income. The Assessment Act allows that the assessment can be based on earning capacity, but it must be read subject to s 117(7B) of the Act. In having regard to earning capacity, the Court may determine that it is greater than the actual income, but only if the Court is satisfied that certain circumstances apply. One of it being that the parent (the father in this case) fails to satisfy the court that the major purpose of the decision to change employment was not to affect the administrative assessment of child support.
  • A change based on “earning capacity” must also be “just and equitable”. To decide if a change is just and equitable the court must take various matters into account, including if “hardship” would be caused to the child or the carer entitled to the support.
  • The Court then reviewed the process followed by the Tribunal and held:
  • The Tribunal was satisfied that the father’s resigning from his employer was not motivated by a desire to affect his child support obligation. He was asked to leave. In such a case it is not open to the Case Officer to make an assessment based on “earning capacity” rather than actual income. Therefor the second question of “just and equitable” and “hardship to the children and the carer” did not arise at the Tribunal in this context.
  • The Tribunal continued it’s review and found that a different ground for a change existed; the father’s actual income. The Tribunal accepted the father’s submission that he did not have the capacity to pay the rate of child support as assessed after the mother’s application. The Tribunal then made an assessment based on the father’s actual new income.
  • The Tribunal found that requiring the father to pay child support at the previously assessed rate would in fact cause hardship to him. This “hardship” is confined in the Act to hardship caused by the making of, or the refusal to make a change of assessment.
  • The mother’s complaint about not being given an opportunity to respond has no merit. The Tribunal had no obligation to put the mother on notice for something that is very apparent from the nature of the decisions that had to be made. There is further nothing in the record to suggest that the mother was denied the opportunity to make submissions about the relevance of the “overpayment”.
  • This Court agreed with the Registrar that the approach adopted by the primary judge when he allowed the mother’s appeal was based on a misconception of the process followed by the Tribunal.

Court dterminations

  • The Registrar’s Appeal is allowed.
  • The Mother’s Notice of Contention is dismissed.
  • The orders made by the primary judge is set aside.

This article provides basic information only and is not a substitute for a professional opinion or legal advice . It is prudent to obtain legal advice from a Family Lawyer when contemplating a separation or soon after a relationship comes to an end. It is noted that publication of this judgment by this Court under the pseudonym Child Support Registrar & Pearce and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975(Cth.)