Dudfield and Oakley (Child support) - [2024] AATA 481

Dudfield and Oakley (Child support) [2024] AATA 481 (2 February 2024)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/MC026705
APPLICANT:  Ms Dudfield
OTHER PARTIES:  Child Support Registrar
Mr Oakley

TRIBUNAL:Member M King
DECISION DATE: 02 February 2024
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that Ms Dudfield be recorded as having 94% care of [Child 1] and [Child 2], and Mr Oakley be recorded as having 6% care of [Child 1] and [Child 2], from 19 June 2022, notified to Child Support on 22 July 2022.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the pattern of care – 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 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

As relevant to this application, Ms Dudfield and Mr Oakley are parties to a child support case registered with Services Australia – Child Support (Child Support) in relation to financial support to be provided for [Child 1] (born 2009) and [Child 2] (born 2012).
Ms Dudfield had been recorded as having 73% care of the children, and Mr Oakley 27% care of the children, from 7 May 2016.
On 22 July 2022, Ms Dudfield advised Child Support that she had 94% care of the children, and Mr Oakley had 6% care of the children, from 19 June 2022.
On 6 September 2022, Child Support decided to record that Ms Dudfield had 94% care of the children, and Mr Oakley had 6% care of the children, from 19 June 2022.
On 16 January 2023, Mr Oakley objected to that decision.
On 23 August 2023, a Child Support objections officer allowed the objection and decided there should no change to the previously recorded percentages of care. The objection decision was to have effect from 16 January 2023.

On 4 September 2023, Ms Dudfield lodged an application with the Tribunal seeking an independent review of Child Support’s decision.

The hearing of the application before the Tribunal was held on 9 January 2024. Ms Dudfield and Mr Oakley attended the hearing by conference telephone and gave sworn evidence. The Tribunal deferred making a decision to allow time for the parties to provide any further evidence they wished to have considered.
Ms Dudfield provided further evidence which the Tribunal provided to Mr Oakley. Mr Oakley did not provide any further evidence or any comment on the additional material provided by Ms Dudfield.
In considering the application, the Tribunal took into account the oral evidence of Ms Dudfield and Mr Oakley, the documentary material provided by Child Support to the Tribunal (Exhibit 1, pages 1 to 152) and additional material provided by Ms Dudfield, marked A1–A21.

ISSUES

The statutory provisions relevant to this review…

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 481
Decision Date: 2 February 2024

CaseChat Overview and Summary

This matter concerned an appeal to the Federal Circuit Court of Australia regarding a decision of the Child Support Registrar. The appeal was brought by Mr Dudfield and Ms Oakley, who were the parents of a child, concerning the Registrar's decision to alter the assessed percentage of care for the child.

The primary legal issue before the Court was whether there had been a change in the pattern of care for the child that warranted a reassessment of the percentage of care attributed to each parent under the *Child Support (Registration and Collection) Act 1988* (Cth). The Court was required to determine if the Registrar had erred in finding that such a change had occurred.

The Court reviewed the evidence presented and applied the principles governing changes to the pattern of care. It considered the statutory requirements for a change to be recognised and the evidence required to substantiate such a change. Ultimately, the Court found that the Registrar's decision was not supported by the evidence and that the Registrar had incorrectly determined that a change in the pattern of care had occurred.

Consequently, the Court set aside the decision of the Child Support Registrar and substituted its own decision, which reflected the Court's findings regarding the percentage of care.

Orders