Jolley and Keenum (Child support) - [2023] AATA 4457

Jolley and Keenum (Child support) [2023] AATA 4457 (18 December 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/BC026646
APPLICANT:  Ms Jolley
OTHER PARTIES:  Child Support Registrar
Mr Keenum

TRIBUNAL:Member R Prasad
DECISION DATE: 18 December 2023
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the existing care determination is revoked on 8 August 2023 and a new care determination is made that Ms Jolley had 0% care and Mr Keenum had 0% care of the child from 9 August 2023.

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

In 2009, a binding child support agreement was entered into by Ms Jolley (the mother) and Mr Keenum (the father), that dictated, among other things, that each month their three children live with the mother for 20 days and the father for 10 days and spend additional time with the father over holidays, until the children turned 18 years old. The agreement also provided that medical, school and educational expenses be shared 70% to the father and 30% to the mother.
Since 2010, the father and mother have had a registered child support assessment for their youngest child, [Child 1] born [in] November 2005 (the child). From 14 May 2017, Services Australia – Child Support (Child Support) has collected child support on the basis the mother had 100% care and the father 0% care of the child. These percentages denote the existing percentages of care.
On 27 January 2023, the father notified Child Support that from 25 January 2023, the child had moved to Brisbane to attend [College 1] and was no longer in the mother’s care, and that both parents had 0% care of the child.
On 2 April 2023, Child Support decided to reject the request for a new care percentage determination, as the mother had provided evidence confirming she was supporting the child while the child lived and studied in Brisbane (the original decision).
On 3 April 2023, the father objected to the original decision on the basis the child was living with the child’s older sibling in Brisbane, and that both of their names were on the lease. The father noted the child was independent and was making their own daily decisions, that the mother had transferred only one child support payment to the child but it was not certain whether this was an ongoing arrangement, and that the mother was not making contributions to the child herself.
Following receipt of further evidence from both parents,…

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 4457
Decision Date: 18 December 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the dispute between Jolley and Keenum concerning the percentage of care for their child. The applicant, Jolley, sought to have the existing percentage of care determinations revoked and new determinations made, arguing there had been a change to the likely pattern of care.

The Tribunal was required to determine whether there had been a material change in the likely pattern of care for the child since the last assessment, and if so, whether to revoke the existing percentage of care determinations and make new ones.

The Tribunal found that the evidence presented demonstrated a significant and ongoing change in the child's living arrangements, indicating a new likely pattern of care. Applying the principles of the *Child Support (Registration and Collection) Act 1988*, the Tribunal concluded that the existing determinations were no longer reflective of the actual care arrangements. Consequently, the Tribunal set aside the previous decisions and substituted new percentage of care determinations.

Orders