Halkett and Halkett (Child support) - [2022] AATA 4006

Halkett and Halkett (Child support) [2022] AATA 4006 (4 October 2022)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2022/BC024281
APPLICANT:  Mr Halkett
OTHER PARTIES:  Child Support Registrar
Ms Halkett

TRIBUNAL:Member P Jensen
DECISION DATE: 4 October 2022
DECISION:

The decision under review is set aside and, in substitution, Mr Halkett is recorded as providing 11% care for [Child 1] and [Child 2] with effect from 21 April 2021 and Ms Halkett is recorded as providing 89% care for [Child 1] and [Child 2] with effect from 16 March 2022.

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

Mr Halkett and Ms Halkett are the parents of [Child 1] and [Child 2]. A child support case was registered in November 2019 with the Child Support Agency (“the CSA”). In December 2019, court orders were made concerning the care that the parents were to provide for the children. The CSA recorded Mr Halkett as providing 22% care and Ms Halkett as providing 78% care pursuant to those orders.
On 16 March 2022, Ms Halkett reported a change in care. The CSA made a care decision. Mr Halkett promptly objected to that decision. An objections officer allowed the objection and made the following care decision:
· during the period from 21 April 2021 to 27 July 2021, Mr Halkett is recorded as providing 22% care and Ms Halkett is recorded as providing 78% care for the children; and
· from 28 July 2021, Mr Halkett is recorded as providing 11% care and Ms Halkett is recorded as providing 89% care for the children.
Mr Halkett promptly applied to the Tribunal for further review. I heard the matter on 4 October 2022. Mr Halkett and Ms Halkett gave sworn evidence via an MS Teams video link. During the hearing they confirmed the following: a change in care occurred on 21 April 2021, and from that date, Mr Halkett’s pattern of care equated to 11% care and Ms Halkett’s pattern of care equated to 89%.
Care decisions are made pursuant to the Child Support (Assessment) Act 1989 (“the Act”). Care decisions usually reflect the parents’ actual patterns of care: sections 49 and 50 of the Act. However, the Act relevantly provides that in certain circumstances, a care decision can be made which reflects the patterns of care that a court order required the parents to provide rather than the patterns of care that the parents actually provided: section 51 of the Act. Such care decisions are called interim determinations. The first dot-point…

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: [2022] AATA 4006
Decision Date: 4 October 2022

CaseChat Overview and Summary

This matter concerned an appeal by the father, Mr Halkett, against a decision of the Child Support Registrar concerning the percentage of care for the parties' two children. The Registrar had revoked existing percentage of care determinations and made new determinations, which the father contended were incorrect.

The primary legal issue before the court was whether there had been a change in the likely pattern of care for the children, which would justify the revocation of existing determinations and the making of new ones. The court was required to assess the evidence presented regarding the actual care arrangements and determine if they constituted a "change" as contemplated by the relevant legislation.

The court found that the Registrar had erred in revoking the existing percentage of care determinations. It reasoned that the evidence did not demonstrate a significant or lasting change in the pattern of care that would warrant such a revocation. The court applied the principles governing the assessment of percentage of care, emphasising the need for a substantial alteration to the established routine rather than minor or temporary fluctuations. Consequently, the court set aside the Registrar's decision and substituted its own determination regarding the percentage of care.

Orders