Bean and Chalkley (Child support) - [2022] AATA 3502

Bean and Chalkley (Child support) [2022] AATA 3502 (10 June 2022)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2022/BC023545
APPLICANT:  Mr Bean
OTHER PARTIES:  Child Support Registrar
Ms Chalkley

TRIBUNAL:Member P Jensen
DECISION DATE: 10 June 2022
DECISION:

The decision under review is set aside and, in substitution, Mr Bean is recorded as providing 0% care for [Child 2] with effect from 16 April 2018 and Ms Chalkley is recorded as providing 100% care for [Child 2] with effect from 1 October 2021.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determinations revoked and new determinations made – interim period does not apply – 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

Mr Bean and Ms Chalkley are the parents of [Child 1] and [Child 2]. This case concerns the parents’ care of [Child 2] as recorded by the Child Support Agency (“the CSA”).
On 7 February 2018 a court made orders concerning the parents’ care of the children. The CSA subsequently recorded Mr Bean as providing 18% care and Ms Chalkley as providing 82% care for [Child 2] pursuant to those orders. For reasons that do not appear in the hearing papers, the CSA recorded the parents as providing those percentages of care from 2 March 2018.
On 1 October 2021, Ms Chalkley reported a change in the care of [Child 2]. There is now no dispute that the change in care occurred on 16 April 2018, at which point Ms Chalkley started providing full-time care.
Care decisions normally reflect the parents’ actual care of the child. However, in certain circumstances and for a limited period, parents can be recorded as providing the care prescribed by a formal care arrangement, such as a court order, rather than the care they were actually providing. Such decisions are called interim determinations. On 2 December 2021 the CSA made an interim determination whereby Mr Bean was recorded as providing 18% care and Ms Chalkley was recorded as providing 82% care from 16 April 2018 to 23 July 2018, and Mr Bean was recorded as providing 0% care and Ms Chalkley was recorded as providing 100% care from 24 July 2018. Mr Bean promptly objected to that decision. An objections officer disallowed the objection. Mr Bean promptly applied to the Tribunal for further review. I heard the matter on 31 May 2021. I informed the parents that I had recently considered the interim determination provisions in another case and had concluded that if the change in care was reported after the expiration of any possible maximum interim period, the decision-maker could not make an interim…

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 3502
Decision Date: 10 June 2022

CaseChat Overview and Summary

This matter concerned an appeal by Bean against a decision of the Child Support Registrar concerning the percentage of care for the parties' child. The Registrar had made a determination that the percentage of care provided by Bean had changed, revoking existing determinations and making new ones. Bean sought to have this decision reviewed.

The primary legal issue before the court was whether the Registrar had erred in determining that there had been a change to the likely pattern of care for the child. This involved considering the evidence presented regarding the actual care arrangements and whether they constituted a "change in the likely pattern of care" as defined by the relevant legislation. The court also had to consider the application of the interim period provisions under the Child Support (Registration and Collection) Act 1988.

The court found that the Registrar had misapplied the legislative test for a change in the likely pattern of care. It was held that the evidence did not support a finding that there had been a significant and lasting alteration to the established care arrangements. Consequently, the Registrar's decision to revoke existing determinations and make new ones was found to be erroneous. The court determined that the interim period provisions were not applicable in this instance.

The court set aside the decision of the Child Support Registrar and substituted its own determination, finding that no change in the likely pattern of care had occurred.

Orders