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Bennallack and Bennallack (Child support)

Bennallack and Bennallack (Child support)

Case [2025] ARTA 1114 24 March 2025

Jurisdiction

Care Percentage Determination

Change in Pattern of Care

Limitation Periods

Admissibility of Evidence

Administrative Law

Family Law

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Bennallack and Bennallack (Child support) [2025] ARTA 1114 (24 March 2025)

Applicant/s: Mr Bennallack

Respondent: Child Support Registrar

Other Parties: Ms Bennallack
Tribunal Number: 2024/PC028839
Tribunal:Senior Member A Suthers
Place:Perth
Date:24 March2025

Decision:The decision under review is set aside and, in substitution, the parties’ respective percentages of care in effect prior to 8 December 2023 are not revoked in response to the notification of a change made by Ms Bennallack on 25 January 2024.

CATCHWORDS

CHILD SUPPORT – percentages of care – change to the pattern of care – nights-in-care basis – contemporaneous record of care – accuracy of record and evidence checked –
pre-existing care percentage determinations not revoked – no date of effect issues to determine – 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 pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.

Statement of Reasons

SUMMARY

Mr Bennallack and Ms Bennallack (‘the parties’) are the parents of [Child A], who is [Age] years old, and [Child B], who is [Age]. A child support case was registered with Services Australia – Child Support (‘Child Support’) on 8 June 2023. Mr Bennallack has been recorded as providing 14% care for the children, with Ms Bennallack providing the balance (86%) of care.
On 25 January 2024, Ms Bennallack notified Child Support that a change to the care arrangements for the children had occurred from 8 December 2023.
On 16 June 2024, an original decision maker accepted that change, and recorded updated percentages of care of 9% to Mr Bennallack and 91% to Ms Bennallack (‘original decision’).
An objections officer considered an objection lodged by Mr Bennallack on 25 June 2024 (which was within the prescribed time to do so), and on 9 November 2024 disallowed the objection, thereby affirming the original decision (‘objection decision’).
On 12 November 2024, Mr Bennallack lodged an application for review of the objections officer’s decision (which was within the prescribed time to do so). That is the application before me.

The hearing and the evidence

I heard the matter on 25 February 2025 and heard evidence and submissions from Mr Bennallack and Ms Bennallack. Child Support elected not to participate in the hearing. I also had regard to the documents lodged in the application, as follows:
(1)248 numbered pages lodged by Child Support;
(2)8 numbered pages lodged separately by Mr Bennallack; and
(3)4 numbered pages lodged separately by Ms Bennallack.
Mr Bennallack also sought to tender a one-page statement by his partner, [Ms A], dated 25 November 2024, at the hearing. I refused to admit that document into evidence for oral reasons I gave at the time. Essentially, the prejudice to Ms Bennallack caused by the late tender of that document, particularly where she was participating by telephone, outweighed the evidentiary value of the statement.
Ultimately, and in brief, the…

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 Bennallack and Bennallack (Child support)

Details

AGLC: Bennallack and Bennallack (Child support) [2025] ARTA 1114
Case: [2025] ARTA 1114
Decision Date: 24 March 2025

CaseChat Overview and Summary

Mr Bennallack appealed a decision of the Child Support Registrar to revise the respective care percentages for his children. The Registrar accepted a notification from Ms Bennallack that a change to the care arrangements for the children had occurred. As a result, the Registrar revised the respective care percentages for the children. Mr Bennallack objected to that decision, which was disallowed by an objections officer. Mr Bennallack then applied to the Tribunal to review that decision. The Tribunal was required to determine whether the change in the care arrangements for the children was sufficient to warrant a change to the care percentages. It was also required to determine what the new care percentages should be, if any. The Tribunal was also required to determine the date from which any new care percentages would take effect.

The Tribunal accepted that the care pattern for the children had changed, but that the care percentages should not be changed. The Tribunal found that the change in the care pattern did not result in a change to the care percentages because the change did not alter the overall care provided by either party. The Tribunal was satisfied that the parties had not provided sufficient evidence to alter the pre-existing care percentages, which were based on the actual care provided during the relevant period. The Tribunal also found that there were no date of effect issues to determine.

The decision under review is set aside and, in substitution, the parties’ respective percentages of care in effect prior to 8 December 2023 are not revoked in response to the notification of a change made by Ms Bennallack on 25 January 2024.

Orders