Digby and Vaughn (Child support) - [2024] AATA 1178

Digby and Vaughn (Child support) [2024] AATA 1178 (5 April 2024)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/BC026967
APPLICANT:  Ms Digby
OTHER PARTIES:  Child Support Registrar
Mr Vaughn

TRIBUNAL:Member M Martellotta
DECISION DATE: 5 April 2024
DECISION:

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

a)The existing care determinations of 93% care to Ms Digby and 7% care to Mr Vaughn is revoked as of 20 January 2023.
b)New care determinations of 87% care to Ms Digby and 13% care to Mr Vaughn applies from 21 January 2023.

CATCHWORDS

CHILD SUPPORT – percentage of care – change to the pattern of care – existing percentage of care determinations revoked – determination of care based upon regular pattern of hours – day care costs – 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

This review concerns the level of care that is to be recorded for child support purposes. Ms Digby and Mr Vaughn are the parents of a child. There has been a child support assessment in place for that child since 8 July 2021. The care percentages recorded in relation to the assessment prior the care decision applying from 21 January 2023, was that Ms Digby had 93% care and Mr Vaughn had 7% care.[1]
[1] Previous care decision dated 22 August 2022
On 27 January 2023 Mr Vaughn contacted the Child Support Agency (Child Support). He advised that from 21 January 2023 his care had increased. Ms Digby in response said that she did not agree with some of the hours of care claimed by Mr Vaughn.
On 7 August 2023 Child Support decided to change the care recorded in the assessment to reflect 11% care to Mr Vaughn and 89% care to Ms Digby. On 8 August 2023 Mr Vaughn lodged an objection to the original decision. The objection was ‘part allowed’ on 23 October 2023. The decision maker decided that his care was to be assessed as 15% and Ms Digby had 85% care from 21 January 2023.
On 27 October 2023 Ms Digby lodged an application with the tribunal. The tribunal held a hearing on 27 March 2024. Ms Digby and Mr Vaughn attended the hearing by conference telephone to present their submissions and evidence. Following the hearing Mr Vaughn sent emails to provide further information (B1-B4). The Tribunal has noted that information but did not require the other party to make any submissions in response.
Other evidence before the tribunal included documents prepared and distributed by Child Support to the parties and to the tribunal.

ISSUES

The statutory provisions relevant to this review are contained in the Child Support…

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 1178
Decision Date: 5 April 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the matter of Digby and Vaughn concerning child support. The dispute involved a review of a decision made by the Child Support Registrar regarding the percentage of care for the child. The applicant sought to have the existing percentage of care determination revoked and a new determination made based on a revised pattern of care.

The Tribunal was required to determine whether there had been a change in the pattern of care for the child that warranted revoking the existing percentage of care determination. Specifically, the Tribunal had to assess whether the new pattern of care constituted a "regular pattern of hours" as contemplated by the relevant legislation, and whether this new pattern justified a different percentage of care. The Tribunal also considered the impact of day care costs on the assessment.

The Tribunal found that the evidence presented demonstrated a significant and consistent change in the pattern of care. It reasoned that the new arrangement involved the child spending a substantial and regular number of hours with the applicant, exceeding the threshold for a change in the percentage of care. The Tribunal applied the principles of the *Child Support (Registration and Collection) Act 1988* concerning changes to care arrangements and the assessment of a regular pattern of hours. The Tribunal concluded that the existing determination was no longer reflective of the actual care arrangements.

The Tribunal set aside the decision under review and substituted it with a new determination of the percentage of care.

Orders