Frith and Scrubb (Child support) - [2023] AATA 852

Frith and Scrubb (Child support) [2023] AATA 852 (10 March 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2022/CC025021
APPLICANT:  Ms Frith
OTHER PARTIES:  Child Support Registrar
Mr Scrubb

TRIBUNAL:Member J Prentice
DECISION DATE: 10 March 2023
DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determinations revoked and new determinations made – decision under review affirmed

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 Frith and Mr Scrubb are parties to a child support case registered with Services Australia – the Child Support Agency (the CSA) from 21 December 2012 in relation to financial support to be provided for [Child 1] (born [December] 2005) and [Child 2] (born June 2008) (the children). This application concerns a single decision by the CSA about the recorded care for [Child 1] only, utilised in calculation of the child support liability.
From 12 June 2020 the pre-existing percentages of care applying in the child support case for [Child 1] were 100% to Ms Frith and 0% to Mr Scrubb. On 5 August 2022, Mr Scrubb contacted the CSA and advised a change to the care position of [Child 1] from 5 August 2022 stating that [Child 1] no longer lived with Ms Frith and he was providing 100% care.
On 29 September 2022, the CSA decided to revoke the pre-existing percentage of care determinations and record new percentage of care determinations of 0% to Ms Frith and 100% to Mr Scrubb from 5 August 2022.
On 4 October 2022, Ms Frith objected to this decision and, on 26 October 2022, a CSA objections officer disallowed the objection.

On 13 November 2022, Ms Frith lodged an application with the Tribunal seeking an independent review of the CSA’s decision, stating:
I believe that CSA considered my ex-husband’s evidence but did not consider the evidence that I have provided. I also believe that the Child Support Guide 2.2.1 Basics of Care has not been correctly applied.
Supporting documentation will be provided. All evidence has previously been provided to CSA.

The hearing of the application was held on 7 March 2023. Ms Frith and Mr Scrubb both participated in the hearing by conference telephone and gave evidence on affirmation. The Child Support Registrar did not participate in the hearing and did not attend.
In considering the application, the Tribunal took into account the oral evidence of Ms Frith and Mr Scrubb and the documentary material provided by the CSA to the Tribunal, the applicant and the second party (marked Exhibit 1, pages 1 to 275), documents provided by Ms Frith prior to hearing…

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: [2023] AATA 852
Decision Date: 10 March 2023

CaseChat Overview and Summary

The case of *Frith and Scrubb* concerned a dispute over the percentage of care for a child. The applicant, Frith, sought to have the existing percentage of care determinations revoked and new determinations made. The respondent, Scrubb, opposed this application. The matter came before the court for review of a decision made by the Child Support Registrar.

The primary legal issue before the court was whether there had been a change to the likely pattern of care for the child. This required the court to assess the evidence presented by both parties regarding the actual care arrangements and to determine if these arrangements constituted a significant and ongoing change from the previously determined pattern.

The court considered the evidence concerning the day-to-day care of the child, including factors such as where the child resided, who was responsible for the child's daily needs, and the overall time spent with each parent. The court applied the principles of the *Child Support (Registration and Collection) Act 1988* (Cth) concerning changes in the pattern of care, focusing on whether the new pattern was likely to continue.

The court affirmed the decision of the Child Support Registrar, finding that there had been a change to the likely pattern of care. Consequently, the existing percentage of care determinations were revoked, and new determinations were made reflecting the revised care arrangements.

Orders