Cantrill and Lydon (Child support) - [2023] AATA 4285

Cantrill and Lydon (Child support) [2023] AATA 4285 (17 November 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBERS:  2023/BC026257
APPLICANT:  Miss Cantrill
OTHER PARTIES:  Child Support Registrar
Mr Lydon

TRIBUNAL:Member J Nalpantidis
DECISION DATE: 17 November 2023
DECISIONS:

The Tribunal sets aside the decision under review and, in substitution, decides that:

· from 6 August 2022 to 11 September 2022, Mr Lydon had 100% care of [Child 2], [Child 1] and [Child 3] and Miss Cantrill had 0% care of [Child 2], [Child 1] and [Child 3].
· from 12 September 2022, Mr Lydon had 35% care of [Child 2], [Child 1] and [Child 3] and Miss Cantrill had 65% care of [Child 2], [Child 1] and [Child 3].

The date of effect of the Tribunal’s decision is 6 August 2022.

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 – 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

This review is about a change to the percentage of care determinations for Mr Lydon and Miss Cantrill in respect of the children [Child 1] (born September 2013), [Child 2] (born February 2015) and [Child 3] (born April 2016) (the three children). Mr Lydon and Miss Cantrill are the parents of [Child 1], [Child 2] and [Child 3]. A child support assessment has been in place between Mr Lydon and Miss Cantrill under a private collect arrangement since 18 January 2022.
On 12 August 2022 Mr Lydon applied to Services Australia – Child Support (Child Support) for a child support assessment for the three children on the basis that he had 100% care of the three children.
On 28 November 2022, Child Support made the decision to apply the Family Assistance Office (FAO) care decision to record the care of the three children, as 65% to Miss Cantrill and 35% to Mr Lydon, notified on 23 October 2022, to the child support assessment (the original decision).
On 31 December 2022 Mr Lydon objected to this decision on the basis he had 100% care of the three children from 6 August 2022 to 11 September 2022 and Ms Cantrill had 0% care. Mr Lydon acknowledged the care arrangement changed from 12 September 2022 in line with the Court Order dated 29 July 2022, with the three children in Miss Cantrill’s care for nine nights per fortnight and in Mr Lydon’s care for five nights per fortnight.
On 11 May 2023 a Child Support objections officer allowed the objection and made the decision to reflect the care of the three children between 6 August 2022 and 11 September 2022…

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 4285
Decision Date: 17 November 2023

CaseChat Overview and Summary

This matter concerned an appeal by the father, Mr. Cantrill, against a decision of the Child Support Registrar concerning the percentage of care for the parties' child. The dispute centred on whether there had been a change to the likely pattern of care for the child, which would justify revoking existing percentage of care determinations and making new ones. The appeal was heard by the Administrative Appeals Tribunal.

The Tribunal was required to determine whether the Registrar had erred in revoking the existing percentage of care determinations and making new ones. Specifically, the Tribunal had to consider whether the evidence supported a finding that there had been a change in the likely pattern of care for the child, and if so, whether the new determinations accurately reflected that change.

The Tribunal found that the Registrar had not properly considered the evidence regarding the child's living arrangements and the parents' respective roles. It was held that the Registrar had failed to adequately assess the impact of the father's new employment arrangements on the pattern of care. The Tribunal applied the principles of the *Child Support (Registration and Collection) Act 1988*, focusing on the definition of "change in the likely pattern of care" and the criteria for revoking and making new percentage of care determinations.

The Tribunal set aside the Registrar's decision and substituted its own, revoking the existing percentage of care determinations and making new ones that reflected the Tribunal's assessment of the likely pattern of care.

Orders