Gereben and Gorman (Child support) - [2021] AATA 2900

Gereben and Gorman (Child support) [2021] AATA 2900 (22 June 2021)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2021/SC021300
APPLICANT:  Miss Gereben
OTHER PARTIES:  Child Support Registrar
Mr Gorman

TRIBUNAL:Member M Douglas
DECISION DATE: 22 June 2021
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that from 8 January 2021 the care percentages for [Child 1] are 39% for Miss Gereben and 61% for Mr Gorman.

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 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

The Tribunal is reviewing, on Miss Gereben’s application, an objection decision a delegate of the Child Support Registrar made on 23 April 2021 by which the care percentages for Miss Gereben and Mr Gorman’ son, [Child 1], were determined to be 22% for Miss Gereben and 78% for Mr Gorman.
The Registrar acts through staff employed within the Government department known as Services Australia-Child Support. The delegate who made the objection decision was such an employee. It is convenient hereafter to refer to the Registrar as Services Australia and hence a reference to Services Australia in this decision is to be read as a reference to the Registrar.
The Tribunal conducted a hearing of Miss Gereben’s application on 22 June 2021. Miss Gereben and Mr Gorman both gave evidence under oath at the hearing. The Tribunal has had regard to their evidence and also to the documents the Tribunal received into evidence, comprising the papers Services Australia provided that were relevant to its objection decision (which are paginated 1-145, and hereafter referred to as the hearing papers) and documents Miss Gereben provided (marked A1-40),

CONSIDERATION

Subsection 54F(1) of the Child Support (Assessment) Act 1989 (the Act) requires the existing care percentages used in an assessment for a child to be revoked if:
a.the care of a child that is actually taking place does not correspond with the parents’ respective percentages of care for the child, and
b.a change to the parents’ percentages of care, so as to reflect the parents’ actual care of their child, would result in a change in the parents’ cost percentages used in the assessment.
The existing care percentages for [Child 1] as at 8 January 2021 were 72% for Mr Gorman and 28% for Miss Gereben.
On 11 January 2021 Miss Gereben contacted Services Australia and told it that she would be having extra care of [Child 1] over the school holidays and that she expected that would continue. She estimated to Services Australia that she would be having care of…

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: [2021] AATA 2900
Decision Date: 22 June 2021

CaseChat Overview and Summary

The case of *Gereben and Gorman* concerned a dispute over the percentage of care arrangements for a child. The applicant, Ms Gereben, sought to have the existing percentage of care determinations revoked and new determinations made. 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 consider the evidence presented regarding the actual care arrangements and to determine if these arrangements constituted a significant and ongoing change from the previously established pattern.

The court considered the evidence of the parties and applied the principles of the *Child Support (Registration and Collection) Act 1988* concerning changes to care arrangements. The court found that the evidence demonstrated a significant and ongoing change in the pattern of care. Consequently, the court set aside the existing percentage of care determinations and made new determinations reflecting the revised care arrangements.

Orders