Mair and Mair (Child support) - [2018] AATA 4894

Mair and Mair (Child support) [2018] AATA 4894 (26 October 2018)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2018/HC014843
APPLICANT:  Ms Mair
OTHER PARTIES:  Child Support Registrar
Mr Mair

TRIBUNAL:Member A Schiwy
DECISION DATE: 26 October 2018
DECISION:

The decision under review 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

Ms Mair and Mr Mair are the separated parents of [Child 1] (nine years old) and [Child 2] (five years old). This application for review is about the respective percentages of care that each parent has for the children.
The child support case was registered in February 2017 and the Department of Human Services (“Child Support”) made a care determination that each parent had 50% care of the children.
A court order issued on 29 November 2017 providing for 50/50 care of the children.
On 9 January 2018 Mr Mair contacted Child Support requesting a change in care and stated that since 1 October 2017 that there had been a gradual increase in the amount of time he had the children in his care, despite the subsequent court order, and he now had 57% care of the children.
On 14 February 2018 Child Support decided that there had been a change in care and determined that Ms Mair had 43% care and Mr Mair had 57% care from 1 October 2017 with the date of effect being 9 January 2018.
On 27 February 2018 Ms Mair objected to the care decision and on 8 June 2018 the objection was disallowed.
On 20 August 2018 Ms Mair applied to this tribunal for an independent review of the objections officer’s decision.
A hearing into the application for review was held by the tribunal on 26 October 2018 in Hobart. Ms Mair attended the hearing in person and Mr Mair participated in the hearing by conference telephone. They both gave evidence under affirmation during the hearing.
The tribunal had before it relevant documents provided to it by Child Support pursuant to subsections 37(1) of the Administrative Appeals Tribunal Act 1975, which were labelled folios 1 to 186. At the hearing Ms Mair also provided additional documentation (A1 to A4). Mr Mair did not have the opportunity to see the A documents prior to, or at, the hearing.

EVIDENCE

Both parents provided calendars setting out care.
Mr Mair provided Child Support with a calendar from 1 August 2017 to 31 December 2017 and from 1 January 2018 to 15 March 2018 (up to the time of the Child Support review).…

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: [2018] AATA 4894
Decision Date: 26 October 2018

CaseChat Overview and Summary

This matter concerned an appeal to the Administrative Appeals Tribunal (AAT) by the father, Mr Mair, against a decision of the Child Support Registrar. The dispute centred on the percentage of care arrangements for the parties' two children, with the Registrar having revoked existing percentage of care determinations and made new ones. The mother, Mrs Mair, was the respondent.

The Tribunal was required to determine whether there had been a change to the likely pattern of care of the children, and if so, whether the existing percentage of care determinations should be revoked and new determinations made. The core of the dispute was whether the father's asserted increase in care constituted a significant and ongoing change to the established pattern of care.

The Tribunal considered the evidence presented by both parties regarding the actual care arrangements for the children. It applied the principles of the *Child Support (Registration and Collection) Act 1988* (Cth), specifically focusing on the criteria for revoking and making new percentage of care determinations. The Tribunal found that the father had not demonstrated a sufficient and sustained change in the pattern of care to warrant the revocation of the existing determinations and the making of new ones. The Registrar's decision was affirmed.

Orders