McPherson and Gunton (Child support) - [2025] ARTA 512

McPherson and Gunton (Child support) [2025] ARTA 512 (19 February 2025)

Applicant/s: Ms McPherson

Respondent: Child Support Registrar

Other Parties: Mr Gunton

Tribunal Number: 2024/SC028661
Tribunal: Senior Member A Suthers
Place:Sydney
Date:19 February 2025

Decision:The decision under review is set aside and, in substitution:
·Mr Gunton’s existing care percentage determination is revoked and replaced with a new care percentage of 35% on and from 7 March 2024, with effect in the assessment on 6 September 2024.

CATCHWORDS

CHILD SUPPORT – percentage of care – child largely in care of father’s mother and step-father, with father financially responsible – application for child support assessment by father’s step-father withdrawn but particulars considered – statements from father’s former partner and step-father – father’s contribution greater than strictly nights-in-care basis – 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 pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.

Statement of Reasons

Summary

The Child Support (Assessment) Act 1989 (the Act) provides for Services Australia – Child Support (Child Support) to make an administrative assessment of child support. Child Support does so by reference to the relevant legislation and to the Child Support Guide (the Guide), published by the Australian Government, where relevant. The Guide contains governmental guidelines and statements of policy as to how the relevant legislation is to be applied.
Under sections 25 and 25A of the Act, a parent or non-parent carer of a relevant child may apply for an administrative assessment. If the necessary conditions are met, Child Support must make the assessment using a formula containing variables such as the adjusted taxable incomes of the parties to the assessment (the parties) and the respective percentages of care the parties have provided, or are likely to provide, for each relevant child, in the ‘care period’ that Child Support decides it is appropriate to consider.
Child Support usually considers a care period of 12 months from when the actual care of a child began or changed: subparagraph 50(1)(b)(ii) of the Act and section 2.2.1 of the Guide. If the assessment is made before the end of the care period, Child Support must make a partially forward-looking judgment as to the care of each relevant child a party to the assessment is likely to provide over the period.
In doing so, Child Support considers whether the parties have had, or are likely to have, a ‘pattern of care’ for the child during the care period. The pattern of care informs the assessment of the ‘percentage of care’ used in the formula. The pattern and percentage of care will commonly be determined by reference to the number of nights each child spends in the care of each party to the assessment: section 54A of the Act and section 2.2.1 of the Guide.
Once an assessment of the percentage of care…

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: [2025] ARTA 512
Decision Date: 19 February 2025

CaseChat Overview and Summary

The case of McPherson and Gunton (Child Support) was heard by Senior Member A Suthers of the Administrative Review Tribunal, with the application for review brought by Ms McPherson against the Child Support Registrar. The issue before the Tribunal was whether the Registrar’s decision to set aside an objection to a child support assessment, which had resulted in the reinstatement of prior care percentages, was correct. The Tribunal found that the decision was not correct, and set it aside. The Tribunal substituted a new decision that revoked Mr Gunton’s existing care percentage determination and replaced it with a new care percentage of 35% on and from 7 March 2024, with effect in the assessment on 6 September 2024. The Tribunal found that the Registrar had erred in considering that the change in the child’s living arrangements did not change the pattern of care, and that Mr Gunton continued to provide care to the child. The Tribunal found that the Registrar had failed to properly consider the evidence of Mr Gunton’s financial and other contributions to the child’s care, and had placed too much weight on the number of nights the child spent in the care of others. The Tribunal found that Mr Gunton’s percentage of care should be assessed based on the totality of his care, including his financial and other contributions, and that this resulted in a care percentage of 35%.

Orders