Huxtable and Huxtable (Child support) - [2023] AATA 4280

Huxtable and Huxtable (Child support) [2023] AATA 4280 (14 November 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/MC026223
APPLICANT:  Mr Huxtable
OTHER PARTIES:  Child Support Registrar
Ms Huxtable

TRIBUNAL:Senior Member S De Bono
DECISION DATE: 14 November 2023
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that Ms Huxtable has 72% care of [the child] and Mr Huxtable has 28% care of [the child] from 3 November 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

BACKGROUND

Mr Huxtable and Ms Huxtable are the parents of [the child]. A registered child support assessment has been in place for [the child] from 23 April 2021. The case has been registered for Services Australia (Child Support) collection from the start of the assessment. The care recorded for [the child] from the start of the assessment has been 100% to Ms Huxtable and 0% to Mr Huxtable.
On 4 November 2022 Mr Huxtable notified Child Support that there had been a change to the care arrangements for [the child] and that he now had 28% care of [the child] and Ms Huxtable now had 72% care of [the child] which applied from 3 November 2022.
On 2 February 2023 Child Support made the decision to leave the care determination at 100% to Ms Huxtable and 0% to Mr Huxtable. On 21 March 2023 Mr Huxtable objected to this decision and on 10 May 2023 an objections officer disallowed Mr Huxtable’s objection.
On 8 June 2023 Mr Huxtable applied to the Administrative Appeals Tribunal (the Tribunal) for an independent review of this decision.[1] On 14 November 2023 Ms Huxtable and Mr Huxtable both gave evidence to the Tribunal under affirmation/sworn during a telephone conference hearing. The Tribunal had before it a bundle of documents (194 pages – referred to as the hearing papers). Relevant aspects of the material and evidence will be referred to in the Tribunal’s consideration of the issues to be decided.
[1] Child Support confirmed that the date of postal notification of the objections officer’s decision was 10 May 2023. Child Support were unable to locate written notification of the original decision. The Tribunal is satisfied that Mr Huxtable has applied for a review of the objections officer’s decision within 28 days of his deemed receipt on 26 May 2023. This is in accordance with section 29 of the Acts Interpretation Act 1901 which states:
Meaning of service by post
(1) Where an Act authorises or requires any document to be…

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 4280
Decision Date: 14 November 2023

CaseChat Overview and Summary

The case of *Huxtable and Huxtable* concerned a dispute over the percentage of care arrangements for a child. The applicant sought to have the existing percentage of care determinations revoked and new determinations made, alleging a change in the likely pattern of care. The matter was heard by S De Bono SM.

The primary legal issue before the court was whether there had been a change to the likely pattern of care for the child, which would justify revoking existing percentage of care determinations and making new ones. The court was required to assess the evidence presented by both parties regarding the actual care arrangements and the anticipated future care arrangements for the child.

The court considered the provisions of the *Child Support (Registration and Collection) Act 1988* relating to changes in care arrangements. It analysed the evidence to determine if the established pattern of care had altered to a degree that warranted a reassessment of the percentage of care. The court applied the principles governing the determination of care percentages, focusing on the factual circumstances presented and the legislative requirements for making such changes.

Following its assessment, the court found that there had been a change to the likely pattern of care. Consequently, the existing percentage of care determinations were revoked, and new determinations were made. The decision under review was set aside and substituted with the court's new determinations.

Orders