Johnsey and Wortham (Child support) - [2024] AATA 4120

Johnsey and Wortham (Child support) [2024] AATA 4120 (27 June 2024)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2024/MC027328
APPLICANT:  Ms Johnsey
OTHER PARTIES:  Child Support Registrar
Mr Wortham

TRIBUNAL:Member J Thomson
DECISION DATE: 27 June 2024
DECISION:

The Tribunal affirms the decision under review.

CATCHWORDS

CHILD SUPPORT – particulars of the administrative assessment – change to percentage of care and date of effect – father’s non-compliance with consent court orders – mother’s brief care but no accurate record or consistent pattern – attempts at mediation – father not taking reasonable action – interim care determination not available – 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 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

Ms Johnsey and Mr Wortham are the parents of [Child 1], born 2006, [Child 2], born 2008 and [Child 3], born 2009. This matter relates to [Children 2 and 3] only (the children).
Ms Johnsey seeks review of an objection decision made by Services Australia (Child Support) on 16 December 2023. This decision partially allowed his objection to an earlier decision by Child Support made on 7 September 2023, deciding to reflect the care of the children [Children 2 and 3] as 100% to Mr Wortham and 0% to Ms Johnsey from 26 July 2023, effective in the assessment from the date of Mr Wortham’s objection lodged on 8 December 2023.
The original Child Support decision of 7 September 2023 had determined the care of [Children 2 and 3] as 80% to Mr Wortham and 20% to Ms Johnsey from 26 July 2023, effective in the assessment from the start date of the liability, 26 July 2023.
The objections officer also decided not to make a determination under subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 (the Registration Act), in consequence whereof the date of effect of the objection decision was 8 December 2023, the date Mr Wortham lodged his objection.
The Tribunal heard the matter on 19 April 2024. Ms Johnsey attended the hearing via conference telephone and gave affirmed evidence. Mr Wortham did not attend the hearing despite being notified of the time and date of the hearing and being contacted by the Tribunal registry on the morning of the hearing. Consequently, the hearing proceeded in his absence.
The Tribunal had before it documentation provided by Child Support (folios 1 to 137), admitted into evidence and marked Exhibit 1. Ms Johnsey had copies of these documents with her at the hearing.

ISSUES

The issues which arise in this case are:
·      What was the likely pattern of care for the children from the start of the administrative assessment? And
·      from what date should the new percentage of care determination apply?
·      Whether or not an interim…

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 4120
Decision Date: 27 June 2024

CaseChat Overview and Summary

The case of Johnsey and Wortham concerned a dispute over the particulars of an administrative assessment of child support, specifically a change to the percentage of care and the date of effect. The matter came before Member J Thomson. The dispute arose from the father's alleged non-compliance with consent court orders regarding the children's care arrangements. The mother contended that while she had brief periods of care, there was no accurate record or consistent pattern of care that would justify a change to the assessment. Attempts at mediation had been unsuccessful, and the father was not considered to have taken reasonable action to resolve the matter.

The court was required to determine whether the percentage of care had changed and, if so, from what date. This involved assessing the factual circumstances of the children's care arrangements in light of the existing consent court orders and the parties' conduct. A key issue was whether the father's actions, or lack thereof, constituted reasonable action to resolve the care arrangements, particularly in the context of his alleged non-compliance with prior court orders. The availability of an interim care determination was also a relevant consideration.

Member J Thomson affirmed the decision under review. The reasoning focused on the lack of evidence demonstrating a consistent or significant change in the percentage of care that would warrant an alteration to the administrative assessment. The father's non-compliance with existing court orders and his failure to take reasonable steps to establish a clear and consistent care arrangement were significant factors. The court found that the mother's brief periods of care did not meet the threshold for a change in the assessment, and the absence of an interim care determination further supported the affirmation of the existing assessment.

Orders