Jolley and Nihill (Child support) - [2024] AATA 482

Jolley and Nihill (Child support) [2024] AATA 482 (12 February 2024)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/BC027156
APPLICANT:  Mr Jolley
OTHER PARTIES:  Child Support Registrar
Ms Nihill

TRIBUNAL:Member I Sheck
DECISION DATE: 12 February 2024
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that:

Ms Nihill’s care percentage of 86% in respect of [the child] is revoked and replaced with a new care percentage of 50% from 23 August 2022; and
Mr Jolley’s care percentage of 14% in respect of [the child] is revoked and replaced with a new care percentage of 50% from 7 January 2023.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – child living away from parents - existing percentage of care determinations revoked and new determinations made – where parents still providing care despite child living away from them - 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 Jolley and Ms Nihill are the parents of [the child], born 5 September 2006. A case was registered with Services Australia – Child Support (Child Support) for the assessment of child support on 15 September 2006 and collection of the liability until 19 January 2022. The most recent care assessment, having effect from 22 August 2022, was based on care percentages of 86% for Ms Nihill and 14% for Mr Jolley. On 7 January 2023 Mr Jolley notified Child Support that [the child] “is old enough and likes to be at both mother and fathers equally 50/50”. Child Support contacted Ms Nihill regarding this and she agreed that this was the case. On 25 January 2023 the parties were notified that the care percentages had been altered to 49% for Ms Nihill and 51% for Mr Jolley (cost percentages were 50% each) with effect from 7 January 2023.
On 28 July 2023 Ms Nihill contacted Child Support and requested that collection of the liability resume. She also advised that with effect from 8 January 2023 the care arrangements for [the child] had changed, such that he was living with her for 164 nights of the year and the remainder of the year with his maternal grandparents. On 1 August 2023 Child Support contacted Mr Jolley, who advised that [the child] lived with his grandparents 100% of the time. On 21 September 2023 Child Support advised Ms Nihill that her notification of change in care was being treated as an objection to the decision of 25 January 2023.
The matter was referred to an objections officer of Child Support who partly allowed Ms Nihill’s objection. The objections officer determined that Ms Nihill’s care percentage for…

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 Jolley and Nihill (Child support)

Details

AGLC: Jolley and Nihill (Child support) [2024] AATA 482
Case: [2024] AATA 482
Decision Date: 12 February 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the dispute between Jolley and Nihill concerning the percentage of care for their child. The core of the disagreement revolved around whether a change in the child's living arrangements constituted a change to the likely pattern of care, leading to the revocation of existing percentage of care determinations and the making of new ones. Despite the child living away from both parents, the parents continued to provide care.

The Tribunal was required to determine whether the circumstances warranted a revocation of the existing percentage of care determinations and the making of new ones. Specifically, the AAT had to assess if the child living away from the parents amounted to a change in the likely pattern of care, and if so, what the appropriate new percentages of care should be.

The Tribunal reasoned that the existing percentage of care determinations were no longer accurate due to the change in the child's living arrangements. Applying the principles of the *Child Support (Registration and Collection) Act 1988*, the AAT found that the parents were still actively involved in the child's care, even though the child was residing elsewhere. This continued provision of care meant that the previous determinations did not reflect the reality of the situation.

Consequently, the AAT set aside the decision under review and substituted it with new percentage of care determinations, reflecting the changed circumstances and the ongoing care provided by both parents.

Orders