Grist and Grist (Child support) - [2021] AATA 1975

Grist and Grist (Child support) [2021] AATA 1975 (13 April 2021)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2020/HC020205
APPLICANT:  Mr Grist
OTHER PARTIES:  Child Support Registrar
Ms Grist

TRIBUNAL:Member C Breheny
DECISION DATE: 13 April 2021
DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the liable parent – earning capacity of liable parent – reduction in income – affecting rate of child support not a major purpose of decision to cease work – not just and equitable to retrospectively disturb decision of objections officer - 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

BACKGROUND

Ms Grist and Mr Grist are the separated parents of [Child 1], born September 2002, [Child 2], born October 2004 and [Child 3], born February 2007. A child support case has been registered with the (then) Department of Human Services – Child Support (Child Support) since 12 June 2018 and registered for collection from 23 August 2018. Mr Grist is liable to pay child support to Ms Grist on the basis that Ms Grist has 100% care of the children. Mr Grist has been living in [Country 1] since 17 December 2019 and became a [Country 1] permanent resident on 28 January 2021.
Ms Grist has lodged previous change of assessment applications and the most recent departure determination was made by a Child Support objections officer on 28 November 2019, which set Mr Grist’s adjusted taxable income at $113,000 per annum for the period 1 July 2019 to 31 October 2020. On this basis Mr Grist’s annual child support liability was approximately $25,305.
On 19 December 2019, Mr Grist lodged a change of assessment application, indicating that he had no income from 7 December 2019 onwards. On 4 April 2020 decision-maker (DM) Reeves found no grounds to depart from the administrative assessment, being the previous departure determination made on 28 November 2019. On 29 May 2020 Mr Grist objected to the decision and on 20 October 2020 a Child Support objections officer disallowed the objection.
On 9 November 2020, Mr Grist applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal) for an independent review of Child Support’s decision. A hearing into Mr Grist’s application for review was held on 13 April 2021. Ms Grist and Mr Grist attended the hearing by conference telephone and gave evidence on affirmation. A representative of the Child Support Registrar (the Registrar) did not attend the hearing.
I had before me the statement and documents provided by Child Support pursuant to subsection 37(1) and section 38AA of the Administrative Appeals Tribunal Act 1975, received on 14 December 2020 and 30 March…

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: [2021] AATA 1975
Decision Date: 13 April 2021

CaseChat Overview and Summary

The Federal Circuit Court of Australia considered an appeal by the liable parent, Mr. Grist, against a decision of an objections officer regarding his child support assessment. The dispute centred on whether Mr. Grist's child support liability should be retrospectively reduced due to a significant decrease in his income, which he attributed to his decision to cease full-time employment. The child support assessment was based on his previous higher earning capacity.

The primary legal issue before the court was whether it was just and equitable to depart from the assessed child support amount under section 117 of the *Child Support (Registration and Collection) Act 1988* (Cth). Specifically, the court had to determine if Mr. Grist's reduction in income was a "major purpose" of his decision to cease work, and if so, whether a retrospective departure from the assessment was warranted.

The court affirmed the decision of the objections officer, finding that Mr. Grist had not established that the reduction in his income was the major purpose of his decision to cease full-time employment. The evidence suggested that his decision was primarily motivated by personal reasons unrelated to deliberately reducing his child support obligations. Consequently, the court concluded that it was not just and equitable to retrospectively disturb the child support assessment.

Orders