Nolan and Nolan (Child support) - [2024] AATA 877

Nolan and Nolan (Child support) [2024] AATA 877 (19 March 2024)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/PC026652
APPLICANT:  Ms Nolan
OTHER PARTIES:  Child Support Registrar
Mr Nolan

TRIBUNAL:Member S Irvine
DECISION DATE: 19 March 2024
DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the pattern of care – existing percentage of care determinations revoked and new determinations made – no interim care determination can be 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 Nolan and Mr Nolan are the parents of [Child 1], born in March 2017. A child support assessment for [Child 1] commenced on 23 September 2022. Prior to the decision under review the care percentage determinations in place for [Child 1] in the child support assessment were 86% to Mr Nolan and 14% to Ms Nolan.
On 29 March 2023 Services Australia – Child Support (Child Support) decided that there had been a change in [Child 1]’s care, and made the following determinations:
·interim care determinations of 72% to Mr Nolan and 28% to Ms Nolan from 10 January 2023
·actual care determinations of 100% to Mr Nolan and 0% to Ms Nolan from 9 January 2024.
On 11 May 2023 Mr Nolan objected to Child Support’s decision, and on 12 July 2023 a Child Support objections officer decided to allow the objection and made a determination that the actual care of [Child 1] should be reflected in the child support assessment from 10 January 2023. The objections officer therefore made care percentage determinations for [Child 1] of 100% to Mr Nolan and 0% to Ms Nolan from 10 January 2023.
On 22 August 2023 Ms Nolan applied to this Tribunal for a review of Child Support’s decision. A hearing was held on 26 February 2024, and both Ms Nolan and Mr Nolan attended by telephone and gave sworn evidence. The Tribunal also had before it relevant documents provided by Child Support (287 pages).
At the hearing Mr Nolan advised that he had not received a copy of the documents provided by Child Support. Ms Nolan confirmed that she had received a copy of those documents prior to the hearing. Mr Nolan indicated that he was willing to proceed with the hearing on the understanding that a copy of the documents would be provided to him directly after the hearing, and that he would have an opportunity to provide any further response in writing after the hearing. Consequently the matter was adjourned following the hearing on 26 February 2024.
A copy of the documents provided by Child Support was provided to Mr Nolan on 1 March 2024. No further…

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.

Keep reading for free

Create a free CaseChat account to read Nolan and Nolan (Child support) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] AATA 877
Decision Date: 19 March 2024

CaseChat Overview and Summary

The case of *Nolan and Nolan (Child support)* concerned a dispute between the parties regarding the percentage of care for their child. The applicant sought to have existing percentage of care determinations revoked and new determinations made. The court was asked to consider whether there had been a change to the pattern of care that would warrant such a revocation and redetermination.

The primary legal issue before the court was whether the circumstances constituted a "change of circumstances" as contemplated by the relevant provisions of the *Child Support (Registration and Collection) Act 1988* (Cth). This involved an assessment of the factual pattern of care and whether it had altered sufficiently to justify departing from the existing, registered percentage of care. The court also had to consider the limitations on making interim care determinations.

The court affirmed the decision under review, finding that the evidence did not establish a sufficient change in the pattern of care to warrant revoking the existing determinations and making new ones. The court applied the principles governing changes of circumstances in child support matters, emphasising the need for a substantial and ongoing alteration to the care arrangements. The court noted that no interim care determination could be made in the circumstances presented.

Orders