Grainger and Grainger (Child support) - [2023] AATA 837

Grainger and Grainger (Child support) [2023] AATA 837 (8 February 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2022/MC024691
APPLICANT:  Ms Grainger
OTHER PARTIES:  Child Support Registrar
Mr Grainger

TRIBUNAL:Member H Moreland
DECISION DATE: 8 February 2023
DECISION:

The Tribunal sets aside the decision under review and in substitution the Tribunal decides as follows:

·         For the period from 21 July 2021 to 31 December 2021, Ms Grainger’ annual rate of child support is varied to $13,384 per annum.
·         For the period from 1 January 2022 to 16 November 2022, Ms Grainger’ annual rate of child support is varied to $11,522 per annum.
·         For the period from 15 November 2021 to 16 November 2022, Ms Grainger’ child support is increased by the sum of $4,257 per annum.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources – special needs – 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

The issue to be determined in this application is whether there is a reason to change the administrative assessment of child support and whether it is just and equitable and otherwise proper to do so.
Ms Grainger and Mr Grainger are the parents of [Child 1]. Ms Grainger is the parent liable to pay child support. The application for child support was registered with Services Australia – Child Support (the Agency) from 21 September 2012 and was subject to a private agreement until 21 July 2021, when it became subject to collection. For the period from 21 July 2021 until the case ended on 16 November 2022, [Child 1] was in the below regular care of Ms Grainger (recorded as 10%) and in the above primary care of Mr Grainger (recorded as 90%).
Prior to the application for a change of assessment, Ms Grainger was assessed to pay child support as follows:
·For the period from 21 July 2021 to 5 August 2021, Ms Grainger was assessed on her 2020/21 adjusted taxable income (ATI) of $104,563. Mr Grainger was assessed on his 2020/21 ATI of $41,409. The annual rate was $16,338.
·For the period from 6 August 2021 to 11 June 2022, Ms Grainger was assessed on her 2021/22 estimated ATI of $82,812. Mr Grainger was assessed on his 2020/21 ATI of $41,409. The annual rate was $12,740.
·For the period from 1 July 2022 to 20 October 2022, Ms Grainger was assessed on her 2020/21 ATI of $104,563. Mr Grainger was assessed on his 2020/21 ATI of $41,409. The annual rate was $16,338.
On 10 December 2021, Ms Grainger applied to the Agency for a departure from the administrative assessment on the bases…

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 Grainger and Grainger (Child support)

Details

AGLC: Grainger and Grainger (Child support) [2023] AATA 837
Case: [2023] AATA 837
Decision Date: 8 February 2023

CaseChat Overview and Summary

The matter of *Grainger and Grainger* concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth). The applicant sought to vary the assessed child support payable by the respondent. The decision was made by Member H Moreland.

The primary legal issue before the Court was whether the grounds for departure from the standard child support assessment, as provided for in section 117 of the Act, were established. Specifically, the Court had to consider whether the respondent possessed income, property, or financial resources that were not taken into account in the assessment, or whether the child had special needs, and if either of these circumstances would result in an unjust or inequitable outcome if the assessment were not departed from.

Member Moreland found that a ground for departure was established, specifically relating to the special needs of the child. The Court reasoned that the standard assessment did not adequately account for these particular needs, and that to maintain the existing assessment would lead to an unjust and inequitable outcome for the child. Consequently, the Court set aside the original decision to depart and substituted its own decision.

Orders