Lyon and Morden (Child support) - [2024] AATA 1883

Lyon and Morden (Child support) [2024] AATA 1883 (10 May 2024)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2024/PC027529
APPLICANT:  Ms Lyon
OTHER PARTIES:  Child Support Registrar
Mr Morden

TRIBUNAL:Member A Ryding
DECISION DATE: 10 May 2024
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that Ms Lyon’s application for a child support assessment is accepted from 12 May 2023 on the basis that Ms Lyon had 100% care of the child [Child 1].

CATCHWORDS

CHILD SUPPORT – percentage of care – provision of ongoing daily care – acceptance of application for a child support assessment – commencement date for child support liability – decision under review set aside

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

This is an application to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal) for review of a decision of Services Australia – Child Support (Child Support) regarding the refusal of an application by Ms Lyon for a child support assessment.
The applicant, Ms Lyon, and one of the other parties to this application, Mr Morden, are the parents of [Child 1] (born [in] June 2017).
On 1 May 2024, the Tribunal conducted a hearing in this matter by MS teams audio. Ms Lyon and Mr Morden participated, Child Support did not participate and instead relied upon its documents.
Before the Tribunal were hearing papers supplied by Child Support, numbered 1 to 56 (the hearing papers). Mr Morden did not have the documents with him but elected to proceed with the hearing. Ms Lyon and Mr Morden provided evidence on affirmation at the hearing.
Following the hearing, on 10 May 2024 Child Support provided informally additional documents and these are marked C1 to C7.
The Tribunal has had regard to all of the documents provided to it that appear relevant to the matters in issue, and to the evidence provided by Ms Lyon and Mr Morden. Reference below is made only to the documents and evidence relevant to this decision.
[In] February 2022 orders were made by the Family Court of Western Australia (the Court Orders) (folio 22). The Court Orders provided that [Child 1] and another child of Ms Lyon, [Child 2], were to live with [Mr A] and [Ms B], the children’s maternal grandparents. Mr Morden and the children’s grandparents would have joint parental responsibility for [Child 1]. Ms Lyon was to spend time and communicate with [Child 1] on such terms as agreed by the grandparents and Mr Morden.
On 12 May 2023, Ms Lyon applied for a child support assessment in respect of [Child 1], on the basis that care was 100% with her and 0% with Mr Morden, from 1 January 2023…

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 1883
Decision Date: 10 May 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application by the respondent, Morden, to set aside a child support assessment made by the Child Support Registrar. The applicant, Lyon, sought to have the assessment reinstated. The dispute concerned the percentage of care provided for the child, which directly impacts the commencement date of the child support liability.

The Tribunal was required to determine whether the Registrar's decision to accept Morden's application for a child support assessment was correct. Specifically, the AAT had to consider whether Morden had provided ongoing daily care for the child for a sufficient period to warrant the assessment, and if so, what the correct commencement date for the child support liability should be.

The Tribunal found that Morden had not provided ongoing daily care for the child for the requisite period under the *Child Support (Registration and Collection) Act 1988*. Consequently, the Registrar's decision to accept the application for assessment was set aside. The Tribunal reasoned that the legislative requirements for establishing a child support liability had not been met in this instance.

Orders