Cloughessy and Cloughessy (Child support) - [2024] AATA 2526

Cloughessy and Cloughessy (Child support) [2024] AATA 2526 (15 May 2024)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2024/BC027290
APPLICANT:  Mr Cloughessy
OTHER PARTIES:  Child Support Registrar
Mrs Cloughessy

TRIBUNAL:Member R Prasad
DECISION DATE: 15 May 2024
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the existing care determination is revoked on 3 May 2023 and a new care determination is made that Mr Cloughessy had 13% care and Mrs Cloughessy had 87% care of the children from 4 May 2023.

CATCHWORDS

CHILD SUPPORT – percentage of care – change to the likely pattern of care – relocation for work – existing percentage of care determinations revoked – 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 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

Mr Cloughessy (the father) and Mrs Cloughessy (the mother) have had a registered child support assessment for their three children since 16 March 2018. Services Australia – Child Support (Child Support) has collected child support on the basis that the mother had 65% care and the father 35% care from 7 October 2019. These percentages denote the existing percentages of care.
On 17 May 2023, the father notified Child Support of a change in the care on the basis that he had to relocate towns for work and that he will have 60 nights care a year or 16% care from that date.
On 31 May 2023, the mother disagreed with the care change, saying that the father will have 49 nights care a year from 4 May 2023.
On 7 July 2023, Child Support applied a care decision made by the Family Assistance Office of Services Australia – Centrelink that the mother had 84% care and the father had 16% care from 15 May 2023. The mother lodged an objection to this decision.
On 14 December 2023, Child Support allowed the mother’s objection and decided that the father had 13% care from 15 May 2023 (the objection decision). The Child Support records however indicate that care percentages of 88% to the mother and 12% to the father were instead applied.
On 4 January 2024, the father sought review of the objection decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal).
The matter was heard on 19 April 2024. The father and mother appeared by MS Teams audio. The Child Support Registrar elected not to be represented at the hearing but provided documentation (folios 1 to 207). After the hearing, the father provided documentation to support his claims made at the hearing (folios A1 to A14), as did the mother (folios B1 to B25).

ISSUE

The relevant issue before me is whether there…

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: [2024] AATA 2526
Decision Date: 15 May 2024

CaseChat Overview and Summary

The case of *Cloughessy and Cloughessy* concerned a dispute over the percentage of care arrangements for two children. The applicant sought to have existing child support percentage of care determinations revoked and new determinations made, arguing that there had been a change to the likely pattern of care due to the respondent's relocation for work. The matter was heard by Member R Prasad.

The primary legal issue before the court was whether the circumstances constituted a "change of circumstances" that would justify revoking the existing percentage of care determinations and making new ones. Specifically, the court had to consider if the respondent's relocation for employment purposes had altered the likely future pattern of care for the children to such an extent that the existing arrangements were no longer reflective of the reality of the children's living arrangements.

Member R Prasad reasoned that a change in the likely pattern of care, as contemplated by the relevant legislation, did not require a permanent or definitive change. The court applied the principle that if there is a significant and foreseeable alteration in the pattern of care, even if it is not yet fully realised, it can be sufficient to warrant a review and potential variation of existing percentage of care determinations. The court found that the respondent's relocation for work had indeed resulted in a change to the likely pattern of care, justifying the revocation of the existing determinations.

The court set aside the existing percentage of care determinations and made new determinations reflecting the altered pattern of care.

Orders