Bligh and Thornton (Child support) - [2019] AATA 3835

Bligh and Thornton (Child support) [2019] AATA 3835 (26 June 2019)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2018/MC014896
APPLICANT:  Mr Bligh
OTHER PARTIES:  Child Support Registrar
Ms Thornton

TRIBUNAL:Member R Anderson
DECISION DATE: 26 June 2019
DECISION:

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

The child support liability payable by Mr Bligh is varied to $2,832 per annum in respect of the period 15 May 2017 to 10 September 2017;
The child support liability payable by Mr Bligh is varied to $7,614 per annum in respect of the period 11 September 2017 to 30 June 2018;
The child support liability payable by Mr Bligh is varied to $7,792 per annum in respect of the period 1 July 2018 to 3 November 2018;
The child support liability payable by Ms Thornton is varied to $427 per annum in respect of the period 4 November 2018 to 31 December 2019;
The adjusted taxable income of Mr Bligh is varied to $57,000 per annum in respect of the period 1 January 2020 to 31 October 2020 and

The adjusted taxable income of Ms Thornton is varied to $38,000 per annum in respect of the period 1 January 2020 to 31 October 2020.

CATCHWORDS
CHILD SUPPORT – departure determination – income, property and financial resources of both parents – residency of liable parent – ground for departure established – 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 Bligh and Ms Thornton are the parents of [Child 1] and [Child 2]. According to records of the Department of Human Services – Child Support (the Department), the child support assessment was registered on 16 May 2016. However, it was not until 15 May 2017 that the Department became responsible for the collection of child support from Mr Bligh.
The child support liability is generally calculated in accordance with the administrative assessment, as provided in the Child Support (Assessment) Act 1989 (the Act). The administrative assessment is generally based on the income recorded by each parent in their most recently completed tax returns, as lodged with the Australian Taxation Office (ATO), or the most recent estimate accepted by the Department.
According to departmental records, as Mr Bligh had not lodged an income tax return his adjusted taxable income used in the administrative assessment was based on two thirds of the male total average weekly earnings (MTAWE) as set by the Australian statistician, which for a child support period commencing in 2016 was $47,504 per annum, commencing in 2017 was $48,308 per annum and commencing in 2018 was $49,071 per annum. Ms Thornton’s adjusted taxable income has consistently fallen below the self-support amount. Based on Ms Thornton’s…

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 Bligh and Thornton (Child support)

Details

AGLC: Bligh and Thornton (Child support) [2019] AATA 3835
Case: [2019] AATA 3835
Decision Date: 26 June 2019

CaseChat Overview and Summary

This matter concerned an appeal by the liable parent, Mr Bligh, against a departure determination made by the Registrar of the Child Support Agency. The dispute centred on the Registrar's decision to depart from the administrative assessment of child support payable by Mr Bligh to Ms Thornton, the payee parent, on the basis that the assessment was not just and equitable. The appeal was heard by R Anderson M in the [Court Name].

The primary legal issue before the court was whether the Registrar had erred in making the departure determination. This required the court to consider whether the grounds for departure, as set out in the *Child Support (Registration and Collection) Act 1988* (Cth), were established, and whether the Registrar had correctly applied the principles of justice and equity in substituting a new assessment. Specifically, the court had to assess the income, property, and financial resources of both parents, as well as the residency of the liable parent, to determine if the original assessment was unduly harsh or unfair.

R Anderson M found that the Registrar had indeed established a ground for departure. The court's reasoning focused on the disparity in the financial circumstances of the parties and the impact of the liable parent's residency arrangements on his capacity to pay the assessed amount. Applying the principles of justice and equity, the court concluded that the original assessment was not appropriate given the full factual matrix. Consequently, the court set aside the Registrar's departure determination and substituted its own decision. The court ordered that the child support assessment be varied to reflect the revised circumstances of the parties.

Orders