Clancy and Tranter (Child support) - [2019] AATA 1738

Clancy and Tranter (Child support) [2019] AATA 1738 (23 April 2019)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2019/MC015728
APPLICANT:  Mr Clancy
OTHER PARTIES:  Child Support Registrar
Ms Tranter

TRIBUNAL:Member R Anderson
DECISION DATE: 23 April 2019
DECISION:

The decision under review is affirmed.

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 affirmed

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

Mr Clancy and Ms Tranter are the parents of [Child 1] and [Child 2]. The child support assessment was registered with the Department of Human Services – Child Support (the Department) on 15 March 2004. Mr Clancy is the parent liable to pay child support to Ms Tranter in respect of the children. The period under review commences after [Child 1] ceased to be a child of the assessment. This review is only in relation to the care of [Child 2].
Departmental records indicate that Ms Tranter has been attributed with a percentage of care for [Child 2] of 86% and Mr Clancy attributed with a percentage of care of 14% since 1 July 2008. The level of care has been based on actual care, despite consent orders being made in July 2013 in the Family Court of Australia at Melbourne.
On 22 October 2018, Ms Tranter contacted the Department to notify of a change in care of [Child 2] such that she should be attributed with 93% care from 1 October 2018 and Mr Clancy with 7% care. On 23 October 2018, an officer of the Department decided to accept Ms Tranter’s application for a change in the registered care of [Child 2] on the basis that both parents agreed.
On 1 November 2018, Mr Clancy lodged an objection to the decision of 23 October 2018. On 19 December 2018, an objections officer of the Department decided to disallow the objection. Consequently, on 8 January 2019, Mr Clancy lodged an application with this tribunal for an independent review of the objections officer’s decision.
The matter was heard on 23 April 2019. Mr Clancy and Ms Tranter both participated by conference telephone and gave oral evidence to the tribunal on affirmation. At hearing both parties confirmed receipt of documents provided by the Department numbered 1 to 80 and documents provided by Ms Tranter numbered B1 to B25.

ISSUES

The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act).
The issues which arise in this case are:
· Should the existing determination of percentage of care be revoked? If so, from when should it be revoked?
· Should a new…

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: [2019] AATA 1738
Decision Date: 23 April 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered a dispute between Clancy and Tranter concerning the percentage of care arrangements for their child. The core of the disagreement involved whether there had been a change to the likely pattern of care, which would necessitate a review and potential alteration of existing child support percentage of care determinations. The Tribunal was tasked with determining the appropriate percentage of care to be applied for child support purposes.

The primary legal issue before the Tribunal was to ascertain whether the factual circumstances surrounding the child's care had altered sufficiently to warrant revoking the existing percentage of care determinations and making new ones. This required an assessment of the evidence presented by both parties regarding the actual and prospective care arrangements for the child.

The Tribunal affirmed the decision under review, finding that a change to the likely pattern of care had indeed occurred. In reaching this conclusion, the Tribunal applied the principles governing the assessment of percentage of care under the relevant child support legislation, which allows for new determinations when there is a material change in the care arrangements. The Tribunal carefully weighed the evidence to determine the revised pattern of care and its implications for the child support assessment.

Orders