Brainsby and Brainsby (Child support) - [2023] AATA 3738

Brainsby and Brainsby (Child support) [2023] AATA 3738 (20 October 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/BC026238
APPLICANT:  Mr Brainsby
OTHER PARTIES:  Child Support Registrar
Ms Brainsby

TRIBUNAL:Member M King
DECISION DATE: 20 October 2023
DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – new determinations made – decision under review affirmed

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

As relevant to this application, Mr Brainsby and Ms Brainsby are parties to a child support case registered with Services Australia – Child Support (Child Support) from 8 September 2022 in relation to financial support to be provided for [Child 1] (born 2012) and [Child 2] (born 2015) (the children).
Each parent had been recorded as having 50% care of the children from 8 September 2022, when the child support case commenced.
On 8 November 2022, Ms Brainsby advised Child Support that she had 100% care of the children from 10 October 2022 and that Mr Brainsby would have care of the children for three nights per fortnight from 25 November 2022.
On 15 January 2023, Child Support determined percentages of care of the children of 100% for Ms Brainsby and 0% for Mr Brainsby from 10 October 2022 and 86% for Ms Brainsby and 14% for Mr Brainsby from 25 November 2022.

On 17 January 2023, Mr Brainsby objected to this decision stating that care of the children had remained as 50% for each parent until 7 November 2022.
On 18 May 2023, a Child Support objections officer partly allowed the objection and determined percentages of care of the children of 100% for Ms Brainsby and 0% for Mr Brainsby from 11 October 2022 and 86% for Ms Brainsby and 14% for Mr Brainsby from 25 November 2022.

On 12 June 2023, Mr Brainsby 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 20 October 2023. Mr Brainsby and Ms Brainsby both participated in the hearing by conference telephone and gave evidence on affirmation. The Child Support Registrar did not participate in the hearing and did not attend.
In considering the application, the Tribunal took into account the oral evidence of Mr Brainsby and Ms Brainsby and the documentary material provided by Child Support to the Tribunal (Exhibit 1, pages 1 to 278).

ISSUES

The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act). Unless otherwise noted, all legislative references in these Reasons are to the Act. The legislation provides the Registrar, that is, Child Support, and 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.

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Details

Case: [2023] AATA 3738
Decision Date: 20 October 2023

CaseChat Overview and Summary

The matter of *Brainsby and Brainsby* concerned a dispute over the percentage of care attributed to each parent for child support purposes. The applicant sought to have a new determination made regarding the likely pattern of care, arguing that circumstances had changed. The decision under review was affirmed.

The central legal issue before the court was whether there had been a change to the likely pattern of care that would warrant a new assessment of the child support percentage. The court was required to consider the evidence presented to determine if the existing assessment accurately reflected the current or future care arrangements.

The court's reasoning focused on the evidence presented regarding the actual and anticipated care arrangements for the child. It applied the principles of the *Child Support (Registration and Collection) Act 1988* concerning the determination of care percentages and the circumstances under which a new assessment could be made. The court found that the evidence did not establish a sufficient change in the likely pattern of care to justify altering the existing assessment.

Orders