Irestone and Irestone (Child support) - [2024] AATA 1882

Irestone and Irestone (Child support) [2024] AATA 1882 (17 May 2024)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/BC026941
APPLICANT:  Mr Irestone
OTHER PARTIES:  Child Support Registrar
Mrs Irestone

TRIBUNAL:Member J Thomson
DECISION DATE: 17 May 2024
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that care percentages in relation to [Child 1] of 100% to Mrs Irestone and 0% to Mr Irestone will apply from 1 June 2021, notified on 16 May 2023, effective in the assessment for Mrs Irestone from 16 May 2023 and for Mr Irestone from 1 June 2021.

CATCHWORDS
CHILD SUPPORT – percentage of care – existing percentage of care determinations revoked – pre-existing court-ordered care pattern not followed – unreliable records of care – 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

Mr Irestone and Mrs Irestone are the parents of [Child 1], born 2006.
Mr Irestone seeks review of an objection decision made by Services Australia (Child Support) made on 22 September 2023. This decision disallowed his objection to an earlier decision of Child Support dated 16 June 2023, and decided to reflect the care of [Child 1] as 0% to Mr Irestone and 100% to Mrs Irestone from 15 April 2021, notified on 16 May 2023.
The Tribunal heard the matter on 28 March 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 500), admitted into evidence and marked Exhibit 1. Mr Irestone provided documentation (folios A1 to A134), admitted into evidence and marked Exhibit A. However, at the hearing, he indicated he was only relying on pages A1 to A 51 for the purposes of his submissions to the Tribunal at the hearing.
Both parents had copies of Exhibit 1 with them at the hearing. Mr Irestone had copies of his Exhibit A documents with him at the hearing and Mrs Irestone had copies of pages A1 to A51 of those Exhibit A documents with her but was content for the hearing to proceed notwithstanding she did not have copies of pages A52 to A134.
At the conclusion of the hearing, the Tribunal directed Mrs Irestone to provide copies of her care diary from 15 June 2023 and a statement from her son, [Mr A], regarding the care circumstances of [Child 1] during the period 21 April 2021 to May 2023. In compliance with the Tribunal’s direction, she has provided a statement by her son, [Mr A], a copy of which will be sent to Mr Irestone with the Tribunal’s decision in the matter.

ISSUES

The issues which arise in this case…

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 1882
Decision Date: 17 May 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the dispute between the parties, referred to as Irestone and Irestone (Child support), concerning the percentage of care arrangements for their child. The applicant sought to set aside a decision made by the Registrar of the Child Support Registrar, which had revoked existing percentage of care determinations and made new ones. The core of the dispute revolved around whether the pre-existing court-ordered care pattern had been followed and the reliability of the records presented to support the claimed care percentages.

The Tribunal was required to determine whether the Registrar's decision to revoke the existing percentage of care determinations was justified. This involved assessing whether the parties had failed to follow the pre-existing court-ordered care pattern, and if so, whether this failure warranted the revocation. Furthermore, the Tribunal had to consider the reliability and weight to be given to the records of care provided by the parties in making new percentage of care determinations.

Member J Thomson found that the evidence presented did not demonstrate a consistent adherence to the court-ordered care pattern. The records of care were found to be unreliable and insufficient to establish the actual care provided. Consequently, the Tribunal concluded that the Registrar's decision to revoke the existing determinations and make new ones was appropriate. The Tribunal set aside the Registrar's decision and substituted its own, making new percentage of care determinations based on the evidence before it.

Orders