McDanah and McDanah (Child support) - [2024] AATA 2543

McDanah and McDanah (Child support) [2024] AATA 2543 (4 June 2024)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2024/MC027602
APPLICANT:  Mr McDanah
OTHER PARTIES:  Child Support Registrar
Ms McDanah

TRIBUNAL:Member R Prasad
DECISION DATE: 4 June 2024
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the existing care determination is revoked on 29 March 2023 and a new care determination is made that Mr McDanah had 0% care and Ms McDanah had 100% care of the child from 30 March 2023.

The Tribunal decides not to make a determination under subsection 95N(2) of the Child Support (Registration and Collection) Act 1988 and so the Tribunal’s decision has effect from 5 March 2024.

CATCHWORDS

CHILD SUPPORT – percentage of care – child now in 100% care of mother – no overnight pattern of care for father – no reasonable action to ensure care arrangement complied with and delay in applying for review – interim period not applicable – 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

Since 16 April 2014, Mr McDanah (the father) and Ms McDanah (the mother) have had a registered child support assessment for their children, [Child 1] (the child) and [Child 2] born 19 January 2011. Services Australia – Child Support (Child Support) has collected child support on the basis that the mother had 38% care of the child and the father had 62% care from 14 February 2023. These percentages denote the existing percentages of care of the child.
On 4 April 2023, the mother notified Child Support that there were parenting orders in place from 30 March 2023 providing that the parents have equal shared parental responsibility, but the child had been full-time in her care since 15 February 2023.
On 20 April 2023, Child Support made an interim care decision to reflect the parenting orders for a period of 52 weeks, namely that the parents had equal shared care from 30 March 2023 to 27 March 2024, and to reflect the actual care of 100% to the mother and 0% to the father from 30 March 2023, effective from 28 March 2024.
On 17 May 2023, the mother lodged an objection to this decision. On 24 July 2023, Child Support disallowed the mother’s objection.
On 5 March 2024, the father sought review of the objection decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal).
The matter was heard on 22 May 2024. The father appeared by MS Teams video and the mother appeared by MS Teams audio and provided documentation (folios B1 to B65). The Child Support Registrar elected not to be represented at the hearing but…

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 2543
Decision Date: 4 June 2024

CaseChat Overview and Summary

The case of *McDanah and McDanah* concerned a dispute over child support payments, brought before Member R Prasad of the Child Support Special Powers Tribunal. The central issue was the percentage of care attributed to each parent for their child, with the mother asserting that she now had 100% care and the father having no overnight pattern of care. The mother sought a review of an existing child support assessment.

The Tribunal was required to determine whether the mother's current care arrangements constituted 100% care for the purposes of child support legislation. It also needed to consider whether an interim period of care should apply and whether the father had taken reasonable action to ensure compliance with the care arrangements or had unreasonably delayed in applying for a review of the assessment.

Member Prasad reasoned that the father's lack of an overnight pattern of care meant he did not meet the threshold for shared care or significant shared care. The Tribunal found that the mother had indeed established 100% care. Furthermore, the Tribunal determined that the father had not taken reasonable action to ensure the care arrangement complied with the assessment and had unreasonably delayed in seeking a review. Consequently, the interim period was deemed not applicable. The decision under review was set aside and substituted with a new assessment reflecting the mother's 100% care.

Orders