Mendez and Morton (Child support) - [2019] AATA 3844

Mendez and Morton (Child support) [2019] AATA 3844 (29 July 2019)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2019/BC015980
APPLICANT:  Ms Mendez
OTHER PARTIES:  Mr Morton
Child Support Registrar

TRIBUNAL:Member P Jensen
DECISION DATE: 29 July 2019
DECISION:

The decision under review is set aside and, in substitution, Ms Mendez is recorded as providing 84% care and Mr Morton is recorded as providing 16% care with effect from 7 September 2018, and Ms Mendez is recorded as providing 100% care and Mr Morton is recorded as providing 0% care with effect from 8 March 2019.

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 – court orders not complied with – interpretation of section 53 of the Assessment Act – reasonable action taken – interim period applied – 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 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

All of the provisions that I refer to in these Reasons for Decision are contained in the Child Support (Assessment) Act 1989, unless stated otherwise.

Introduction

Ms Mendez and Mr Morton are the parents of [Child 1] who was born in 2006. A child support case was registered with the Department of Human Services – Child Support (“the CSA”), as it is now called, in 2006. Court orders were issued concerning the parents’ care of [Child 1]. From 2014, Ms Mendez was recorded as providing 84% care and Mr Morton was recorded as providing 16% care pursuant to those Court orders.
On 27 November 2018, Ms Mendez reported a change in care. On 6 December 2018 an original decision-maker decided to record Ms Mendez as providing 100% care with effect from 27 November 2018, and decided to record Mr Morton as providing 0% care with effect from 1 September 2018.
Mr Morton promptly objected to that decision. On 12 February 2019 an objections officer allowed his objection and made the following decision:
We [sic] have made the decision to accept that [Mr Morton] has 16% care and [Ms Mendez] has 84% care of [Child 1] as ordered from 1 September 2018. This applies for the interim period of 27 November 2018 to 2 March 2019.
Ms Mendez promptly applied to the Tribunal for further review. I heard the matter on 28 June 2019. Ms Mendez and Mr Morton participated in the hearing by conference phone. After the hearing, at my request, the Registrar provided written submissions in respect of the correct interpretation of paragraph 53(1)(c). In fairness to the parents, I also provided them with an opportunity to provide written submissions on that narrow issue. Mr Morton provided general submissions…

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: [2019] AATA 3844
Decision Date: 29 July 2019

CaseChat Overview and Summary

The Federal Circuit Court of Australia considered an appeal concerning child support assessments. The dispute involved the parties, Mendez and Morton, and the percentage of care arrangements for their child. The court was asked to determine whether there had been a change to the likely pattern of care, which would necessitate the revocation of existing percentage of care determinations and the making of new ones.

The central legal issue before the court was the interpretation and application of section 53 of the *Child Support (Assessment) Act 1988* (Cth). Specifically, the court had to determine whether the circumstances warranted a finding that there had been a change to the likely pattern of care, and if so, what the appropriate percentage of care should be. This involved considering whether the parties had taken reasonable action to maintain the existing pattern of care and the implications of any non-compliance with court orders.

The court reasoned that a change in the likely pattern of care had occurred, justifying the revocation of previous determinations. It applied the principles of section 53 of the Act, considering the evidence presented regarding the actual care arrangements and the parties' actions. The court found that the existing determinations were no longer reflective of the child's living arrangements and that an interim period should be applied to account for the transition. The decision under review was set aside and substituted with new percentage of care determinations.

Orders