Hingerton and Creadey (Child support) - [2024] AATA 2764

Hingerton and Creadey (Child support) [2024] AATA 2764 (28 June 2024)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/SC027139
APPLICANT:  Mr Hingerton
OTHER PARTIES:  Child Support Registrar
MsCreadey

TRIBUNAL:Member J Thomson
DECISION DATE: 28 June 2024
DECISION:

The Tribunal affirms the decision under review.

CATCHWORDS

CHILD SUPPORT – percentage of care – change in the pattern of care – withholding of care of the child – a breach of the court orders – pre-existing care percentage revoked – 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 theChild Support (Registration and Collection) Act 1988

REASONS FOR DECISION

BACKGROUND

Mr Hingerton and Ms Creadey are the parents of [Child 1], born 2017.
Mr Hingerton seeks review of an objection decision made by Services Australia (Child Support) on 4 December 2023. This decision disallowed his objection to an earlier decision made by Child Support on 1 August 2023, deciding to reflect the care of [Child 1] as 100% to Ms Creadey and 0% to Mr Hingerton from 24 April 2023, notified on 19 July 2023.
The Tribunal heard the matter on 12 April 2024. Both parents attended the hearing via conference telephone and gave affirmed evidence. The Tribunal had before it documentation provided by Child Support (folios 1 to 119) admitted into evidence and marked Exhibit 1. Both parents had copies of these documents with them at the hearing.
At the conclusion of the hearing, the Tribunal directed Ms Creadey to provide a copy of orders made by the Federal Circuit Court of Australia on 19 January 2024 (the FCC Orders) regarding care of [Child 1]. Ms Creadey has complied with the Tribunal’s direction and the copy of the FCC Orders (folios 8 to 15) she provided has been admitted into evidence and marked Exhibits B8 to B15. At the hearing, Mr Hingerton acknowledged and agreed he did not require a copy of these court orders to be provided to him as he had a copy and was present in the court when the orders were made by consent of the parents.
Post-hearing, Ms Creadey provided further written submissions (folios 1 to 7). These submissions have been received into evidence and marked Exhibits B1 to B7, copies of which were sent to Mr Hingerton on 22 April 2024 for his consideration and comment by 29 April 2024. No response has been received from Mr Hingerton as at the date of this decision.

ISSUES

The issues which arise in this case are:
·      Should the pre-existing care determinations be revoked? and
·      Should an interim care determination be made? and
·      From what date should any new percentage of care determination apply?

CONSIDERATION

In reaching its decision, the Tribunal has considered the affirmed evidence given by the parents at the hearing and the documentation contained in…

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: [2024] AATA 2764
Decision Date: 28 June 2024

CaseChat Overview and Summary

Hingerton and Creadey concerned a dispute between two parents regarding the percentage of care for their child. The matter came before Member J Thomson for review.

The primary legal issue before the court was whether there had been a change in the pattern of care for the child, and if so, whether that change warranted the revocation of a pre-existing care percentage. The court was also required to consider whether the withholding of care constituted a breach of existing court orders.

Member J Thomson reasoned that the evidence demonstrated a significant and sustained change in the pattern of care, which amounted to a breach of the court orders previously in place. The court applied the principles governing child support assessments, particularly those relating to changes in care arrangements and the consequences of non-compliance with court orders. The court found that the circumstances justified revoking the existing percentage of care.

The decision under review was affirmed, meaning the court upheld the finding that the pre-existing care percentage was no longer applicable due to the change in the pattern of care and the breach of court orders.

Orders