Hoinville and Obeirne (Child support) - [2025] ARTA 953

Hoinville and Obeirne (Child support) [2025] ARTA 953 (16 May 2025)

Applicant/s: Mr Hoinville

Respondent: Child Support Registrar

Other Parties: Ms Obeirne

Tribunal Number: 2025/SC029215
Tribunal: General Member H Casey
Place:Hobart
Date:16 May 2025

Decision: The Tribunal affirms the decision under review.

CATCHWORDS

CHILD SUPPORT – percentage of care – court orders not complied with – care choice of an older child – mental health impacts – contravention application dismissed – reasonable period of time for notification – reasonable action taken – interim period – existing percentage of care determinations revoked – 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 omitted from this decision and replaced with generic information pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.

Statement of Reasons

BACKGROUND

This is a review of a decision of Services Australia (Child Support) about the level of care to be used in a child support assessment.
Mr Hoinville and Ms Obeirne have a child support assessment for their daughter. Prior to the change in question, Mr Hoinville was recorded as having 14% care and Ms Obeirne was recorded as having 86% care, in accordance with court orders dated 25 March 2022.
On 13 May 2024 Ms Obeirne notified Child Support that the care had changed and that since 27 October 2023 the child had been in her 100% care.
On 12 September 2024 Child Support made a decision to change the recorded care so that Ms Obeirne was assessed as having 100% care of the child from 27 October 2023.
On 30 September 2024 Mr Hoinville objected to this decision. On 10 January 2025 Child Support disallowed his objection, and on 24 January 2025 Mr Hoinville applied to the Tribunal for review of this decision.
The Tribunal and the parties received hearing papers from Child Support numbered 1– 235, and Mr Hoinville also provided submissions numbered A1–A7 which were exchanged with Ms Obeirne. These have been considered by the Tribunal.
The Tribunal held a hearing on 6 May 2025 with both parents attending and giving evidence by telephone. The Child Support Registrar did not participate in the hearing. Ms Obeirne’s call dropped out part way through the hearing without the Tribunal realising for approximately 5–10 minutes, and her call was then reconnected. The Tribunal then gave Ms Obeirne a verbal summary of Mr Hoinville’s submissions and the Tribunal’s comments that occurred during that time, and the hearing proceeded. The Tribunal is satisfied that Ms Obeirne was afforded procedural fairness despite the technical issue that occurred during the hearing.

ISSUES

The statutory provisions relevant to this review are contained in the Child Support (Registration and Collection) Act 1988 (the Act) and the Child Support (Assessment) Act 1989 (the Assessment Act).
As detailed below, the parties agree to many of the facts about the care change. The primary issue which arises in this case is…

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: [2025] ARTA 953
Decision Date: 16 May 2025

CaseChat Overview and Summary

Mr Hoinville, the father of a child born of his relationship with Ms Obeirne, sought a review of a decision by the Child Support Registrar to change the level of care used in a child support assessment. The Registrar had changed the level of care based on a notification by Ms Obeirne that the child had been in her sole care since 27 October 2023. Mr Hoinville objected to this change, arguing that the child had been in his care in accordance with court orders dated 25 March 2022, and that the Registrar should not have changed the level of care until the matter was resolved in the court. The Tribunal was required to determine whether the Registrar was correct to change the level of care and to make new determinations based on the actual care of the child.

The Tribunal found that the change in care occurred as Ms Obeirne had stated. The Tribunal also found that the Registrar was correct to revoke the existing care percentages because the change in care was not notified within the reasonable time specified in the Child Support Guide, and because the child was not made available to Mr Hoinville. The Tribunal found that the Registrar was also correct not to apply an interim care period, as the change in care occurred prior to the legislative change that allows for interim care in certain circumstances. The Tribunal noted that the Federal Court had already decided that interim care could not be applied to care changes that occurred prior to the legislative change, and that the new legislation did not apply retrospectively to changes in care that occurred prior to 29 March 2024. The Tribunal also found that Mr Hoinville was not entitled to have the court order for care applied in the child support assessment, as the order had been set aside in contravention proceedings, and because the Tribunal was not a court and could not make findings about the contravention application.

The Tribunal affirmed the decision of the Registrar to change the level of care and to make new determinations based on the actual care of the child. The Tribunal found that the Registrar had correctly applied the law and had acted reasonably in making the decision. The Tribunal also found that Mr Hoinville was not entitled to have the decision reviewed, as he had not shown that the decision was flawed or that the Registrar had acted unreasonably or unfairly. The Tribunal noted that Mr Hoinville had not provided any evidence to support his claims that Ms Obeirne had contravened the court order, or that the Registrar had acted improperly. The Tribunal also noted that the contravention application had been dismissed by the court, and that the court had found that there was a reasonable excuse for the listed contraventions in these circumstances.

Orders