Debaillie and Wragby (Child support) - [2022] AATA 2369

Debaillie and Wragby (Child support) [2022] AATA 2369 (21 June 2022)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2022/PC023582
APPLICANT:  Mr Debaillie
OTHER PARTIES:  Child Support Registrar
Ms Wragby

TRIBUNAL:Senior Member M Kennedy
DECISION DATE: 21 June 2022
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the objection is allowed and new care determinations made reflecting the children as in Ms Wragby’s 61% care and Mr Debaillie 39% care with effect from 13 December 2021.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – care based on hours rather than nights – 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 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

Mr Debaillie and Ms Wragby are the parents of [Child 1] and [Child 2], in respect of whom a child support assessment is in place. Prior to 13 December 2021, the child support liability was calculated on the basis of a care percentage determination reflecting the children in Ms Wragby’s 66% care and 34% in Mr Debaillie’s care.
Consent orders were made in respect of the care of the children [in] December 2021. Mr Debaillie notified Services Australia of a change in care arrangements on 31 December 2021 and contended that the orders produced a pattern of care reflecting that he had 46% care of the children, and Ms Wragby had 54% care. This calculation was made on the basis of hours in care, attributing the hours when the children were at school as hours in his care.
Services Australia revoked the existing care percentage and replaced it with the new one nominated by Ms Debaillie on 10 January 2022 with effect from 13 December 2021. Ms Wragby objected to that decision on 11 January 2022, on the basis that the care percentage should be calculated based on the number of nights in care.
On 9 March 2022 the objection officer decided that the care percentage determination should be calculated by reference to the number of nights in care provided for by the court orders, allowed Ms Wragby’s objection, and put in place a new care percentage determination reflecting 73% care to Ms Wragby and 27% care to Mr Debaillie with effect from 13 December 2021.
Mr Debaillie applied to the Tribunal for review on 29 March 2022.
I have before me the Tribunal papers consisting of 174 pages and a bundle of documents lodged by Mr Debaillie marked as the ‘A’ documents: A1 to A75. Both Mr Debaillie and Ms Wragby participated in a telephone hearing on 21 June 2022.

Legislative framework

Under the scheme for determining percentages of…

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.

Keep reading for free

Create a free CaseChat account to read Debaillie and Wragby (Child support) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] AATA 2369
Decision Date: 21 June 2022

CaseChat Overview and Summary

The case of *Debaillie and Wragby* concerned a dispute over the percentage of care for a child, brought before the Child Support Registrar and subsequently reviewed by the court. The primary issue was whether a change had occurred in the likely pattern of care for the child, which would necessitate a reassessment of the existing percentage of care determinations. The parties' dispute centred on how care should be calculated, specifically whether it should be based on hours rather than nights.

The court was required to determine whether the Registrar’s decision to revoke existing percentage of care determinations and make new ones was justified. This involved considering the evidence presented regarding the actual and likely future care arrangements for the child, and whether these arrangements constituted a material change from the previously established pattern. The court also had to assess the Registrar's interpretation of the relevant provisions of the *Child Support (Registration and Collection) Act 1988* concerning the calculation of care percentages.

The court reasoned that the Registrar had erred in their assessment of the care arrangements. It found that the Registrar’s approach of calculating care based on hours, rather than the customary method of nights, was not supported by the legislation or established practice in circumstances where a significant change in the pattern of care had occurred. The court applied the principle that percentage of care determinations should reflect the reality of the care provided and that a material change in that reality warrants a review and potential adjustment. The court concluded that the Registrar’s decision was not open to them on the evidence.

The court set aside the decision under review and substituted its own determination, revoking the existing percentage of care determinations and making new ones based on its findings regarding the pattern of care.

Orders