Emerson and Searle (Child support) - [2024] ARTA 440

Emerson and Searle (Child support) [2024] ARTA 440 (16 December 2024)

Applicant/s: Mr Emerson

Respondent: Child Support Registrar

Other Parties: Ms Searle
Tribunal Number: 2024/SC028521
Tribunal: Member A Suthers
Place:Sydney
Date:16 December 2024

Decision:The Tribunal sets aside the decision under review and, in substitution, decides that the care percentages of 21% to Mr Emerson and 79% to Ms Searle will not be revoked based on the notification to the Registrar made by Ms Searle on 23 February 2024.

CATCHWORDS

CHILD SUPPORT – percentage of care – small, occasional changes in actual care – child’s increasing reluctance to spend time with father – no independent or documentary evidence – available evidence suggests both parents maintain established pattern with some flexibility – decision under review set aside

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 pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.

Statement of Reasons

Summary

Mr Emerson and Ms Searle are the parents of [a child], who is 10 years old. A child support case was registered with Services Australia – Child Support (Child Support) in 2018. Mr Emerson has been recorded as providing 21% care for the child since 2018, with Ms Searle providing the balance (79%) of care.
The Child Support (Assessment) Act 1989 (the Act) provides for an administrative assessment of child support using a formula containing variables such as the parents’ adjusted taxable incomes and their respective percentages of care for their child.
On 23 February 2024, Ms Searle notified the Child Support Registrar (Registrar) that a change to the care arrangements for the child had occurred from 1 January 2024. On 2 April 2024, an original decision-maker accepted that change, and recorded updated percentages of care of 10% to Mr Emerson and 90% to Ms Searle. The decision was made in the absence of any input from Mr Emerson, who had failed on three occasions to respond to the Registrar’s requests for information.
The Child Support (Registration and Collection) Act 1988 (R&C Act) provide that the parties to the assessment may lodge an objection to a care percentage decision by the Registrar that informs the assessment and for certain persons to be able to seek review of the decision on the objection by application to the Tribunal.
That has occurred here. An objections officer considered an objection lodged on 17 April 2024, and on 19 August 2024 disallowed the objection, thereby confirming the original decision. Specifically, the objection decision noted that ‘[t]he evidence from each parent conflicts. The only period they agree is the December/January school holidays. In this case, we have not received any substantive evidence, which confirms what the actual care is, therefore on objection we are satisfied that an alternative decision cannot be made.
On 5 September 2024, Mr Emerson lodged an application for review of the objection officer’s decision. That is the application…

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.

Continue reading Emerson and Searle (Child support)

Details

AGLC: Emerson and Searle (Child support) [2024] ARTA 440
Case: [2024] ARTA 440
Decision Date: 16 December 2024

CaseChat Overview and Summary

In the matter of Emerson and Searle, the Applicant, Mr Emerson, sought a review of a decision by the Child Support Registrar concerning the care percentages attributed to him and the Respondent, Ms Searle. The Tribunal was tasked with determining whether there had been a material change in the established care arrangement for the child, which had previously been set at 21% for Mr Emerson and 79% for Ms Searle. The crux of the issue was whether Ms Searle's notification of a change in care, which led to the Registrar updating the care percentages to 10% for Mr Emerson and 90% for Ms Searle, was substantiated.

The Tribunal considered the evidence presented by both parties, including text messages between the parents that indicated a consistent and flexible pattern of care, and a statement from a family friend supporting Mr Emerson's claims. Ms Searle's assertions of a significant change in care were not backed by independent evidence, leading the Tribunal to find her claims unsubstantiated. The Tribunal concluded that despite minor variations, the overall care pattern had not materially changed. Therefore, the Tribunal found no basis to revoke the existing care percentages.

In light of the evidence and the lack of a material change in the care arrangement, the Tribunal set aside the Registrar's decision and substituted it with a decision that the care percentages remain unchanged at 21% for Mr Emerson and 79% for Ms Searle. The Tribunal's decision was based on the principle that any change to the established care percentages must be supported by sufficient and credible evidence, which was not provided in this case. The Tribunal emphasised the importance of rational and probative evidence in administrative decision-making, particularly in child support cases where the welfare of the child is paramount.

Orders