Donelan and Donelan (Child support) - [2024] AATA 4121

Donelan and Donelan (Child support) [2024] AATA 4121 (27 September 2024)

DIVISION:Social Services & Child Support Division
REVIEW NUMBERS:  2024/AC028030, 2024/AC028151 and 2024/AC028383
APPLICANT:  Mr Donelan
OTHER PARTIES:  Child Support Registrar
Mrs Donelan

TRIBUNAL:Senior Member S Trotter
DECISION DATE: 27 September 2024
DECISIONS:

2024/AC028030

Decision under review

The decision to revoke the existing percentage of care determinations of 14% to Mr Donelan and 86% to Mrs Donelan for [Child 1] and to record new percentage of care determinations of 11% to Mr Donelan and 89% to Mrs Donelan from 3 March 2023, with the new percentage of care of 11% for Mr Donelan applying from 3 March 2023 however with the new percentage of care of 89% for Mrs Donelan only applying from 22 September 2023.

Decision of the Tribunal

The Tribunal sets aside the decision under review and substitutes a new decision that there was no change in the care of [Child 1] and the existing percentage of care determinations of 14% to Mr Donelan and 86% to Mrs Donelan are not revoked.

2024/AC028151

Decision under review

The decision to revoke the existing percentage of care determinations of 14% to Mr Donelan and 86% to Mrs Donelan for [Child 2] and to record new percentage of care determinations of 6% to Mr Donelan and 94% to Mrs Donelan from 3 February 2023, with the new percentage of care of 6% for Mr Donelan applying from 3 February 2023 however with the new percentage of care of 94% for Mrs Donelan only applying from 22 August 2023.

Decision of the Tribunal

The decision under review is varied such that the existing percentage of care determinations of 14% to Mr Donelan and 86% to Mrs Donelan for [Child 2] are revoked with new percentage of care determinations of 8% to Mr Donelan and 92% to Mrs Donelan from 3 February 2023, with the new percentage of care of 8% for Mr Donelan applying from 3 February 2023 however with the new percentage of care of 92% for Mrs Donelan only applying from 22 August 2023.

2024/AC028383

Decision under review

There were no special circumstances preventing Mr Donelan from lodging his objection to the 23 October 2023 decision under review in relation to [Child 2] within 28 days of being notified of the decision.

Decision of the Tribunal

The Tribunal affirms the decision under review.

CATCHWORDS

CHILD SUPPORT – percentage of care – changes to the pattern of care – one new determination made – one existing percentage of care determination not revoked – special circumstances preventing lodging of the objection – 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 application relates to the care percentages recorded for…

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 4121
Decision Date: 27 September 2024

CaseChat Overview and Summary

This matter concerned an application by the applicant, Ms Donelan, for review of a decision made by the Child Support Registrar. The dispute centred on the percentage of care arrangements for the parties' child, with Ms Donelan seeking to have an existing percentage of care determination revoked and a new one made.

The primary legal issue before the Tribunal was whether there were special circumstances that prevented Ms Donelan from lodging an objection to the Registrar's decision within the prescribed time limit. If such circumstances were found to exist, the Tribunal would then consider whether to set aside the Registrar's decision and substitute its own determination regarding the percentage of care.

The Tribunal found that Ms Donelan had indeed demonstrated special circumstances that prevented her from lodging her objection within the statutory timeframe. These circumstances related to her mental health and her inability to effectively engage with the objection process. Applying the principles of fairness and the need to ensure that parties have a proper opportunity to be heard, the Tribunal determined that it was appropriate to set aside the Registrar's decision.

Consequently, the Tribunal set aside the decision under review and substituted its own determination, effectively allowing Ms Donelan to proceed with her application to have the percentage of care arrangements reconsidered.

Orders