Bignot and Bignot (Child support) - [2023] AATA 3404

Bignot and Bignot (Child support) [2023] AATA 3404 (29 August 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/SC025433
APPLICANT:  Ms Bignot
OTHER PARTIES:  Child Support Registrar
Mr Bignot

TRIBUNAL:Member E Kidston
DECISION DATE: 29 August 2023
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that care for the children is 100% to Ms Bignot and 0% to Mr Bignot from 16 June 2015, with effect from the commencement of the registration of the child support case on 3 March 2022.

CATCHWORDS

CHILD SUPPORT – percentage of care – what was the likely pattern of care from the start of the administrative assessment – 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 application is about the percentage of care determinations for Ms Bignot and Mr Bignot in respect of their children [Children 1-4] (the children).
On 3 March 2022 Ms Bignot contacted Services Australia – Child Support (Child Support) to register a new child support case concerning care of the children and that she provided 100% care from 1 January 2015.
On 15 March 2022, Child Support registered the case and recorded that Ms Bignot had a percentage of care of the children of 100% and Mr Bignot had 0% with effect from the start of liability on 3 March 2022. Mr Bignot is the parent liable to pay child support under the assessment.
On 27 October 2022 (more than 28 days from the date of the original decision) Mr Bignot lodged with Child Support an objection. On 5 January 2023 an objections officer of Child Support allowed the objection, in part. A determination was made that Ms Bignot had 50% care for the children and Mr Bignot had 50% care for the children from 1 January 2015 with effect from 27 October 2022 for child support purposes as the objections officer did not find special circumstances existed to extend the date of effect.
On 17 January 2023, Ms Bignot applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision. The application was heard on 10 July 2023. Ms Bignot and Mr Bignot each spoke to the Tribunal by conference telephone and gave evidence on affirmation. The Child Support Registrar did not participate in the hearing and did not attend, as is customary.
In considering the application, the Tribunal took into account the oral evidence of Ms Bignot and Mr Bignot as well as the documentary material provided by Child Support in accordance with subsections 37(1) and 38AA of the Administrative Appeals Tribunal Act 1975 (marked Exhibit 1). A couple of days prior to the hearing Ms Bignot provided documents to the Tribunal that she…

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: [2023] AATA 3404
Decision Date: 29 August 2023

CaseChat Overview and Summary

The matter of *Bignot and Bignot* concerned a dispute regarding the percentage of care attributed to each parent for child support assessment purposes. The applicant sought to have the existing decision reviewed and set aside. The case was heard by Member E Kidston of the Child Support Division of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was to determine the likely pattern of care between the parties from the commencement of the administrative assessment. This involved assessing the factual circumstances and evidence presented to ascertain the actual care arrangements that had been in place.

Member Kidston reviewed the evidence concerning the care arrangements for the child. The Tribunal applied the principles of the *Child Support (Registration and Collection) Act 1988* in assessing the percentage of care. After considering the evidence, the Tribunal found that the previous decision regarding the percentage of care was not in accordance with the law. Consequently, the Tribunal set aside the original decision and substituted its own determination of the likely pattern of care.

Orders