Handley and Handley (Child support) - [2023] AATA 4293

Handley and Handley (Child support) [2023] AATA 4293 (26 October 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/SC026193
APPLICANT:  Mr Handley
OTHER PARTIES:  Child Support Registrar
Ms Handley

TRIBUNAL:Member M King
DECISION DATE: 26 October 2023
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that Ms Handley’s percentage of care be recorded as 86%, and Mr Handley’s percentage of care be recorded as 14%, from 7 February 2022, notified to the Child Support Registrar on 7 October 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 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, Mr Handley and Ms Handley are parties to a child support case registered with Services Australia – Child Support (Child Support) from 11 January 2022 in relation to financial support to be provided for [Child 1] (born 2004) and [Child 2] (born 2006). This decision relates to the percentages of care recorded in relation to [Child 2].
Ms Handley had been recorded as having 88% care of [Child 2], and Mr Handley 12% care of [Child 2], from 11 January 2022, when the child support case commenced.
On 7 October 2022, Mr Handley advised Child Support that Ms Handley had 60% care of [Child 2], and he had 40% care of [Child 2], from 3 February 2022.
On 27 November 2022, Child Support determined percentages of care of [Child 2] of 85% for Ms Handley and 15% for Mr Handley from 3 February 2022.

On 7 December 2022, Mr Handley objected to this decision.
On 18 May 2023, a Child Support objections officer partly allowed the objection and determined there should be no change to the original percentages of care of [Child 2], being 88% for Ms Handley and 12% for Mr Handley.

On 31 May 2023, Mr Handley 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 26 October 2023. Mr Handley and Ms Handley 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 Mr Handley and Ms Handley and the documentary material provided by Child Support to the Tribunal (Exhibit 1, pages 1 to 378).

ISSUES

The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act). Unless otherwise noted, all legislative references…

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 4293
Decision Date: 26 October 2023

CaseChat Overview and Summary

This matter concerned an appeal by the father, Mr Handley, against a decision of the Child Support Registrar concerning the percentage of care for the parties' two children. The Registrar had determined that the father had care of the children for 35% of the time, and the mother for 65% of the time. The father sought to have this determination reviewed, arguing that there had been a change in the likely pattern of care.

The primary legal issue before the court was whether the Registrar had erred in making the percentage of care determination. Specifically, the court had to consider whether there had been a change to the likely pattern of care for the children, and if so, whether the existing percentage of care determinations should be revoked and new determinations made.

The court found that the Registrar had failed to properly consider the evidence regarding the children's living arrangements and the father's involvement in their care. It was held that the evidence demonstrated a significant change in the likely pattern of care, with the children spending more time with the father than previously determined. The court applied the principles of the *Child Support (Registration and Collection) Act 1988* concerning the assessment of care percentages, emphasising the need for accurate reflection of the actual and likely future care arrangements.

Consequently, the court set aside the Registrar's decision and substituted it with a new determination that the father had care of the children for 50% of the time, and the mother for 50% of the time.

Orders