Kelane and Hiland (Child support) - [2024] AATA 2527

Kelane and Hiland (Child support) [2024] AATA 2527 (30 May 2024)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2024/BC027675
APPLICANT:  Mr Kelane
OTHER PARTIES:  Child Support Registrar
Ms Hiland

TRIBUNAL:Member K Hamilton
DECISION DATE: 30 May 2024
DECISION:

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

Ms Hiland’s percentage of care determination of 100% care is revoked from 23 November 2023; and
Ms Hiland’s percentage of care of the child [Child 1] is 0% from 24 November 2023.

CATCHWORDS

CHILD SUPPORT – percentage of care – change to the pattern of care – existing percentage of care determination revoked – 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

Mr Kelane is the father of [Child 1] (aged 16). [Child 1] has been in the care of her grandmother, Ms Hiland, for a number of years since she was a young child. [Child 1’s] mother, Ms Kelane, has had no care of [Child 1] since she was young.
A Child Support case was first registered on 20 January 2022. Ms Hiland was recorded for Child Support purposes as having 100% care, Mr Kelane 0% care and Ms Kelane 0% care of [Child 1].
On 14 August 2023, Mr Kelane advised Services Australia – Child Support (Child Support) that [Child 1] was no longer living with Ms Hiland. Child Support’s notes record this change in care as occurring from 14 June 2023.
On 12 October 2023, Child Support made a decision that Ms Hiland, Mr Kelane and Ms Kelane each had 0% care of [Child 1] from 14 June 2023.
Ms Hiland objected to that decision on 30 October 2023. On 18 March 2024, a Child Support objections officer allowed her objection, and decided not to revoke the existing percentage of care determination of 100% to Ms Hiland, and 0% to Mr Kelane and Ms Kelane. Mr Kelane then applied to the Administrative Appeals Tribunal (the Tribunal) for further review.
I heard the matter on 30 May 2024. Mr Kelane and Ms Hiland participated by telephone and gave evidence.

ISSUES

The legislative provisions relevant to this application are contained in the Child Support (Registration and Collection) Act 1988 (the Act) and the Child Support (Assessment) Act 1989 (the Assessment Act).
Care decisions are made pursuant to the Assessment Act. If a person applies for an administrative assessment of child support and has had, or is likely to have, a pattern of care for the child during the relevant care period, then the decision-maker must determine that parent’s percentage of care for the child during the care period: section 50 of the Assessment…

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 Kelane and Hiland (Child support)

Details

AGLC: Kelane and Hiland (Child support) [2024] AATA 2527
Case: [2024] AATA 2527
Decision Date: 30 May 2024

CaseChat Overview and Summary

The case of *Kelane and Hiland* concerned a dispute over the percentage of care arrangements for a child. The applicant sought to have an existing percentage of care determination revoked and new determinations made. The matter came before the Administrative Appeals Tribunal (AAT).

The primary legal issue before the Tribunal was whether there had been a change in the pattern of care for the child that warranted the revocation of the existing percentage of care determination and the making of new determinations. This required the Tribunal to consider the relevant provisions of the *Child Support (Registration and Collection) Act 1988* (Cth) concerning changes to care arrangements.

Member K Hamilton found that the evidence presented demonstrated a significant and ongoing change in the pattern of care for the child. The Tribunal applied the principles governing the assessment of percentage of care, considering the factual circumstances of the child's living arrangements and the responsibilities undertaken by each parent. Based on this assessment, the Tribunal concluded that the existing determination was no longer accurate and that new determinations were necessary to reflect the current reality of the child's care. The Tribunal set aside the previous decision and substituted it with new determinations regarding the percentage of care.

Orders