Anderson and Anderson (Child support) - [2024] AATA 787

Anderson and Anderson (Child support) [2024] AATA 787 (5 March 2024)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/BC026962
APPLICANT:  Mr Anderson
OTHER PARTIES:  Child Support Registrar
Mrs Anderson

TRIBUNAL:Member M King
DECISION DATE: 5 March 2024
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the following care percentages should be recorded in relation to the children [Child 1], [Child 2] and [Child 3]:

·From 2 August 2022, Mrs Anderson 79% and Mr Anderson 21%;
·From 6 February 2023, Mrs Anderson 43% and Mr Anderson 57%; and
·From 4 September 2023, Mrs Anderson 50% and Mr Anderson 50%.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the pattern of care – new determinations made – 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

As relevant to this application, Mr Anderson and Mrs Anderson are parties to a child support case registered with Services Australia – Child Support (Child Support) in relation to financial support to be provided for [Child 1] (born 2014), [Child 2] (born 2017) and [Child 3] (born 2021).
On 17 August 2022, Child Support decided to record Mrs Anderson as having 79% care of the children, and Mr Anderson 21% care of the children, from 17 May 2022, with effect from the start date of the child support assessment on 2 August 2022.
On 24 July 2023, Mr Anderson objected to that decision.
On 25 October 2023, a Child Support objections officer partly allowed the objection and decided that Mrs Anderson should be recorded as having 65% care of the children, and Mr Anderson 35% care of the children, from 30 July 2022, with effect from 24 July 2023.

On 26 October 2023, Mr Anderson lodged an application with the Tribunal seeking an independent review of Child Support’s decision.

The hearing of the application before the Tribunal was held on 9 February 2024. Mr Anderson and Mrs Anderson attended the hearing by conference telephone and gave sworn evidence. The Tribunal deferred making a decision to allow Mr Anderson and Mrs Anderson to provide the Tribunal with any further evidence they wished to have considered.
In considering the application, the Tribunal took into account the oral evidence of Mr Anderson and Mrs Anderson, the documentary material provided by Child Support to the Tribunal (Exhibit 1, pages 1 to 132) and additional evidence provided by Mrs Anderson (Exhibit B, pages 1 to 5).

ISSUES

The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act). The legislation provides the Registrar, that is, Child Support, and the Tribunal on review, with rules for assessing and changing percentage 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.

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Details

Case: [2024] AATA 787
Decision Date: 5 March 2024

CaseChat Overview and Summary

The parties, referred to as Anderson and Anderson, brought a matter before the court concerning child support. The central dispute revolved around a determination made regarding the percentage of care for the child, with the applicant asserting that there had been a change to the established pattern of care. The court was tasked with reviewing this new determination.

The primary legal issue before the court was whether the circumstances constituted a change in the pattern of care sufficient to warrant a new assessment of the percentage of care. This involved an examination of the evidence presented to determine if the existing care arrangements had been altered in a material way that impacted the child support assessment.

The court considered the evidence and the relevant provisions of the *Child Support (Registration and Collection) Act 1988*. It found that the new determination made by the Registrar was not supported by the evidence, as there had indeed been a significant change to the pattern of care. Consequently, the court set aside the original decision and substituted its own determination regarding the percentage of care.

Orders