Jordan and Jenkin (Child support) - [2019] AATA 1744

Jordan and Jenkin (Child support) [2019] AATA 1744 (15 May 2019)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2019/PC016071
APPLICANT:  Mr Jordan
OTHER PARTIES:  Child Support Registrar
Ms Jenkin

TRIBUNAL:Member M Martellotta
DECISION DATE: 15 May 2019
DECISION:

The decision to determine care as 59% to Ms Jenkin and 41% to Mr Jordan as from 18 September 2018 is affirmed.

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 affirmed

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 Jordan and Ms Jenkin are the parents of two children. On 26 October 2018 the Department of Human Services – Child Support (the Department) decided to change the care determination recorded to reflect that Mr Jordan had 44% care and Ms Jenkin had 56% care from 1 January 2018 effective from 18 September 2018.
Ms Jenkin objected to that decision.[1] On 22 February 2019 a Department objections officer changed the original decision and instead decided that Mr Jordan had 41% care and Ms Jenkin had 59% care as from 1 January 2018 effective from 18 September 2018.
[1] The objection was made within the statutory timeframe of 28 days.
Mr Jordan made application for independent review of this decision. On 15 May 2019 the tribunal conducted a hearing at which Mr Jordan and Ms Jenkin attended by conference telephone and gave evidence under affirmation. Documents relevant to the decision had been provided by the Department (151 pages).

ISSUES

The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act).
The issues which arise in this case are:

Should the existing determination of percentage of care be revoked and replaced?
Should a new determination of a percentage of care be made? If so, what is the percentage of care under the new determination? From when should it apply?

CONSIDERATION

Section 50 of the Act requires the Department to determine a person’s percentage of care where a person has had, or is likely to have, a pattern of care for a child for the care period. The percentage of care so determined must be a percentage that corresponds with the actual care of the child.
Section 54A of the Act sets out that actual care of a child that a person has or is likely to have may be worked out on the number of nights of care. A new percentage of care can be determined by the Department whenever the care of a child has changed pursuant to sections 54F, 54G and 54H of the Act.
In this matter the following evidence is not…

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: [2019] AATA 1744
Decision Date: 15 May 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the dispute between Jordan and Jenkin concerning the percentage of care for their child. The applicant, Jordan, sought to have 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. This involved assessing whether the proposed new care arrangements were likely to be maintained and whether they constituted a significant departure from the existing arrangements.

The Tribunal affirmed the decision under review, finding that the evidence did not establish a sufficient change in the likely pattern of care to warrant revoking the existing determinations and making new ones. The Tribunal applied the principles governing the assessment of percentage of care, focusing on the likelihood of future care arrangements rather than past or temporary changes.

Orders