Isley and Simmers (Child support) - [2024] ARTA 420

Isley and Simmers (Child support) [2024] ARTA 420 (16 December 2024)

Applicant/s: Ms Isley

Respondent: Child Support Registrar

Other Parties: Mr Simmers
Tribunal Number: 2024/SC028532
Tribunal: Member A Suthers
Place:Sydney
Date:16 December 2024

Decision:The Tribunal sets aside the decision under review and, in substitution, decides that the care percentages for [Children 2-4] of 75% to Ms Isley and 25% to Mr Simmers will not be revoked based on the notification to the Registrar made by Mr Simmers on 5 December 2022. This decision will have effect on and from 6 September 2024.

CATCHWORDS
CHILD SUPPORT – percentage of care – change to pattern of care – parents separated under the one roof – assumption of equal care may not reflect the reality in each case – day-to-day involvement with children – conflicting notifications by each parent – no sufficiently probative evidence of change – 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 pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.

Statement of Reasons

REASONS FOR DECISION

SUMMARY

The Child Support (Assessment) Act 1989 (the Act) provides for an administrative assessment of child support using a formula containing variables such as the parents’ adjusted taxable incomes and their respective percentages of care for their children.
Ms Isley and Mr Simmers are the parents of [Child 1], who is 17 years old, [Child 2], who is 15, [Child 3], who is now 14 and [Child 4], who is 12. A child support case was registered with Services Australia – Child Support (Child Support) in 2021. Ms Isley was recorded as providing 50% care for the children since 2019, with Mr Simmers providing the balance (50%) of care. Since that time, the parties have been separated but residing in the same house.
From 8 June 2022, the level of care recorded was amended to reflect that Ms Isley provided 75% of care for the children, with Mr Simmers providing the balance (25%) of care. That change was based on a notification by Ms Isley on 20 June 2022 to the Family Assistance Office (with transfer of that information to Child Support) and the decision was dated 3 August 2022.
If Mr Simmers disagreed with that assessment of the care percentage, he could have lodged an objection to it. That is the proper way to challenge an assessment of a care percentage that has already been made. Otherwise, that care percentage will be used by Child Support until Child Support is advised, and accepts, that there has been a change to the pattern of care.
Instead, on 5 December 2022, Mr Simmers notified Child Support that a change to the care arrangements for the children had occurred from 9 June 2022. He alleged that he provided 50% of care, and Ms Isley provided 50% on the basis that he…

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.

Continue reading Isley and Simmers (Child support)

Details

AGLC: Isley and Simmers (Child support) [2024] ARTA 420
Case: [2024] ARTA 420
Decision Date: 16 December 2024

CaseChat Overview and Summary

Ms Isley and Mr Simmers were involved in a child support dispute that was reviewed by the administrative appeals Tribunal. The dispute centred on the percentage of care each parent should be responsible for in relation to their children. The parents had separated while still living under the same roof, and Mr Simmers argued that the original percentage allocation did not reflect the true division of care. The Tribunal was required to determine whether the assumption of equal care, typically applied in cases where parents separate under the one roof, was appropriate in this instance, given the parents' conflicting claims about their day-to-day involvement with the children.

The Tribunal examined the evidence provided by both parties and considered whether there was sufficient proof to support a change in the care percentages. Despite the conflicting notifications, the Tribunal found that there was no sufficiently probative evidence to establish a change in the care arrangement. The Tribunal concluded that special circumstances did not prevent Ms Isley from lodging her application for review within the stipulated 28-day period. Consequently, the original care percentages of 75% for Ms Isley and 25% for Mr Simmers would remain unchanged, effective from 6 September 2024.

The Tribunal set aside the decision under review and decided that the care percentages for the children would not be altered based on Mr Simmers' notification to the Registrar. This decision took effect from 6 September 2024, maintaining the original allocation of care responsibilities between the parties.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The letter to Ms Isley attaching the objection decision dated 14 March 2023 stated in the second paragraph:If you do not agree with this decisionif you think this decision is wrong, you can ask the administrative appeals Tribunal (AAT) to review it. You must do this within 28 days from the date you received this letter. You can contact the AAT by going to their website AAT.gov.au or calling them on 1800 228 333. (Emphasis in original) I am not satisfied that special circumstances prevented Ms Isley lodging the application for review within 28 days. The consequence is that the parties’ respective percentages of care for the children who are the subject of the assessment will return to 75% to Ms Isley and 25% to Mr Simmers, with effect on and from 6 September 2024. The Tribunal sets aside the decision under review and, in substitution, decides that the care percentages for [Children 2-4] of 75% to Ms Isley and 25% to Mr Simmers will not be revoked based on the notification to the Registrar made by Mr Simmers on 5 December 2022. This decision will have effect on and from 6 September 2024.

Ratio Decidendi

Legal Principle Established

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