Jordison and Keate (Child support) - [2024] AATA 2023

Jordison and Keate (Child support) [2024] AATA 2023 (3 April 2024)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2024/BC027333
APPLICANT:  Ms Jordison
OTHER PARTIES:  Child Support Registrar
Mr Keate

TRIBUNAL:Member K Hamilton
DECISION DATE: 3 April 2024
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that in relation to the child [Child 1]:

Mr Keate’s percentage of care determination of 100% is revoked from 20 April 2023; and
Mr Keate’s percentage of care of the child [Child 1] is 0% from 21 April 2023.

CATCHWORDS
CHILD SUPPORT – percentage of care – whether there was a change to the pattern of care – 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 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

Ms Jordison and Mr Keate are the parents of [Child 1] (born 2006). Prior to December 2022, Mr Keate was recorded for child support purposes as having 100% care and Ms Jordison 0% care of [Child 1]. Ms Jordison was assessed to pay child support on that basis.
On 29 May 2023, Ms Jordison advised Services Australia – Child Support (Child Support) that [Child 1] was no longer living with Mr Keate, and [Child 1] had been staying with his half‑brother [Mr A] since December 2022. Ms Jordison is recorded as stating that [Child 1] stayed with Mr Keate for no more than 2 nights per fortnight (care that would correspond with Mr Keate have 14% care).
On 18 August 2023, Child Support refused to make a decision to reflect the care of [Child 1] as 14% to Mr Keate and 0% to Ms Jordison from 9 December 2022.
Ms Jordison objected to that decision on 21 August 2023. On 10 January 2024, a Child Support objections officer disallowed her objection. Ms Jordison then applied to the Administrative Appeals Tribunal (the Tribunal) for further review.
I heard the matter on 7 March 2024. Ms Jordison and Mr Keate participated by telephone and gave evidence.
Following the hearing, I issued directions requiring the parties to provide by 20 March 2024:
·      Any contemporaneous care calendars or other records showing where the child [Child 1] was residing from 10 December 2022 to date;
·      Evidence of all transfers made by either party to the child [Child 1], or to another person on [Child 1]’s behalf, to meet his living expenses and other costs from 10 December 2022 to date;
·      Any financial statements showing the child [Child 1]’s income and expenditure for accommodation and other living expenses from 10 December 2022 to date; and
·      Any other evidence they intend to rely on.
Ms Jordison submitted further evidence to the Tribunal, which was provided by the Tribunal to Mr Keate on 22 March…

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 2023
Decision Date: 3 April 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application by Ms Jordison (the applicant) to review a decision made by the Child Support Registrar. The dispute concerned the percentage of care for the child, [child's name], which directly impacts the child support payable by Mr Keate (the respondent). The applicant sought to have the percentage of care attributed to her increased, thereby reducing the child support liability of the respondent.

The primary legal issue before the Tribunal was whether there had been a change in the pattern of care for the child since the last assessment of care percentages. Specifically, the Tribunal had to determine if the applicant had demonstrated a significant and ongoing shift in the child's living arrangements that warranted a reassessment of the care percentages under the *Child Support (Assessment) Act 1989* (Cth).

Member K Hamilton reasoned that the applicant bore the onus of proving a change in the pattern of care. The Tribunal considered evidence presented by both parties regarding the child's living arrangements, including school attendance, extracurricular activities, and overnight stays. The Member found that the evidence did not establish a substantial and sustained change in the pattern of care that would justify altering the existing assessment. Consequently, the Tribunal set aside the decision under review and substituted a new decision affirming the original assessment of care percentages.

Orders