Sulstone and Blakeway (Child support) - [2022] AATA 3378

Sulstone and Blakeway (Child support) [2022] AATA 3378 (30 August 2022)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2021/MC022444
APPLICANT:  Mr Sulstone
OTHER PARTIES:  Child Support Registrar
Ms Blakeway

TRIBUNAL:Senior Member R Ellis
DECISION DATE: 30 August 2022
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that for the period from 1 April 2021 to 31 March 2024 the adjusted taxable income of Mr Sulstone is varied to $90,000 per annum.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the liable parent – 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 omitted 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

This review is about whether or not there should be a departure from the administrative assessment of child support.
Mr Sulstone and Ms Blakeway are the parents of [the child] (born December 2007). There has been a child support assessment in place since 15 December 2016 and Mr Sulstone is currently the liable parent under the assessment. The Tribunal notes that for the period from 26 November 2020 to 27 March 2021 Ms Blakeway was the liable parent.
The following administrative assessments of child support are under consideration:
· for the period from 4 February 2021 to 27 March 2021 Ms Blakeway was assessed to pay an annual rate of $3,318 based on a 2019–20 provisional income of $40,000 for Ms Blakeway and a 2019–20 adjusted taxable income of $46,893 for Mr Sulstone; and
· for the period from 28 March 2021 to 25 February 2022 Mr Sulstone was assessed to pay an annual rate of $4,903 based on a 2019–20 adjusted taxable income of $46,893 for Mr Sulstone and a 2019–20 provisional income for Ms Blakeway of $40,000.
On 1 April 2021 Mr Sulstone applied to the Child Support Agency for a departure from the assessment on the basis of the high costs incurred to spend time with, or communicate with, the child (the ground commonly referred to as Reason 1), money, goods or property received by the child, the payee or a third person (Reason 5), his necessary commitments of self-support (Reason 7) and a parent’s income, property and financial resources (Reason 8A).
On 17 May 2021 Ms Blakeway made a cross-application to the Child Support Agency on the basis of the high costs of caring for, educating or training the child (Reason 3), money, goods or property received by the child, the payee or a third person (Reason 5), a parent’s income, property, financial resources or earning capacity (Reasons 8A and 8B) and her responsibility to maintain a resident child (Reason 10). Ms Blakeway subsequently withdrew Reasons 3, 5 and 10 from…

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: [2022] AATA 3378
Decision Date: 30 August 2022

CaseChat Overview and Summary

This matter concerned an application by the liable parent, Mr Sulstone, for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth). The application sought to reduce his child support liability on the basis of his income, property, and financial resources. The Registrar had previously made a decision to depart from the assessment, which was now under review by the court.

The primary legal issue before the court was whether the Registrar’s decision to depart from the child support assessment was justified, having regard to the specific circumstances of Mr Sulstone’s income, property, and financial resources. The court was required to consider whether the grounds for departure were established and whether the decision to depart was appropriate in the context of the child support legislation.

In reaching its decision, the court considered the evidence presented regarding Mr Sulstone’s financial position. The court applied the principles of the *Child Support (Registration and Collection) Act 1988* (Cth) concerning departure determinations, focusing on whether the liable parent’s circumstances were such that the assessment did not make proper or adequate allowance for them. The court found that the grounds for departure were established and that the Registrar’s decision was sound.

The court set aside the Registrar's original decision and substituted its own decision, confirming the departure from the child support assessment.

Orders