Blanton and Grist (Child support) - [2021] AATA 2728

Blanton and Grist (Child support) [2021] AATA 2728 (10 June 2021)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2020/BC020547
APPLICANT:  Mr Blanton
OTHER PARTIES:  Child Support Registrar
Ms Grist

TRIBUNAL:Member A Schiwy
DECISION DATE: 10 June 2021
DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that:

· Ms Grist’s adjusted taxable income is varied to $80,000 from 23 April 2020 to when a terminating event occurs; and
· Mr Blanton’s annual child support liability be increased by $1,630 from 23 April 2020 to 22 April 2021.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the carer entitled to receive – alienation of income – school fees – a ground for departure established – decision to depart – 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 1988.

REASONS FOR DECISION

BACKGROUND

Mr Blanton and Ms Grist are the separated parents of [Child 1] who is 15 years old. This review is about the child support payable by Mr Blanton to Ms Grist for the child.
According to the child support records, a child support case has been registered since 2006. Services Australia (Child Support) have determined that Ms Grist has had 100% care of [Child 1] since December 2019. Child Support commenced collecting child support payments from 8 April 2020; up until then it had been private collect.
The administrative assessments for child support have been based on Ms Grist’s 2018–19 adjusted taxable income of $8,510.
On 23 April 2020 Mr Blanton lodged a departure application with Child Support. The application was made on the basis that the rate of child support payable under the administrative assessment was unfair because of the income and financial resources of Ms Grist.
On 7 September 2020 a Child Support case officer decided not to make a departure determination.
On 22 September 2020 Mr Blanton objected to this decision and on 11 December 2020 a Child Support objections officer partly allowed the objection. The objection decision was:
·For the period 23 April 2020 to 30 September 2020 Ms Grist’s adjusted taxable income is varied to $63,000; and
·For the period 1 October 2020 to when a terminating event occurs, Ms Grist’s adjusted taxable income is varied to $56,000.
On 28 December 2020 Mr Blanton lodged an application with this tribunal for an independent review of the objections officer’s decision.
A hearing was held on 27 May 2021. Both Mr Blanton and Ms Grist gave evidence on affirmation at the hearing by conference telephone.
The tribunal had been questioning Ms Grist for around 90 minutes when her telephone line dropped out. Ms Grist had been making a number of complaints during the hearing about the private nature of…

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 Blanton and Grist (Child support)

Details

AGLC: Blanton and Grist (Child support) [2021] AATA 2728
Case: [2021] AATA 2728
Decision Date: 10 June 2021

CaseChat Overview and Summary

This matter concerned an application by the father, Mr. Blanton, for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth) to reduce his child support assessment. The mother, Ms. Grist, was the carer entitled to receive child support. The dispute centred on whether the father's income, property, and financial resources, particularly the alleged alienation of his income, constituted grounds for departure. The case was heard by Member Schiwy of the Child Support Special Powers Division.

The primary legal issue before the court was whether the father had established a ground for departure from the child support assessment. Specifically, the court had to determine if the father's circumstances, including the alleged alienation of his income, were such that the assessment did not make proper or adequate allowance for his capacity to pay child support, or if the assessment was otherwise unjust or inequitable. A further issue was whether the court should exercise its discretion to depart from the assessment, and if so, what the substituted assessment should be.

Member Schiwy found that the father had indeed alienated his income by directing payments to his spouse, thereby reducing his assessable income for child support purposes. The court applied the principles of the *Child Support (Registration and Collection) Act 1988*, focusing on the father's actual financial capacity rather than his declared taxable income. The court determined that the father's conduct amounted to a deliberate attempt to reduce his child support obligations, and that this constituted a ground for departure. The court also considered the specific expenses incurred by the father, including school fees for the subject child, which were found to be a relevant factor in determining a just and equitable assessment.

The court set aside the original child support assessment and substituted a new assessment that reflected the father's true income and financial capacity. The substituted assessment was calculated to be more reflective of the father's ability to contribute to the child's support, taking into account the alienated income and the relevant expenses.

Orders