Pether and Jeffress (Child support) - [2024] AATA 4115

Pether and Jeffress (Child support) [2024] AATA 4115 (27 September 2024)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2024/BC028252
APPLICANT:  Mr Pether
OTHER PARTIES:  Child Support Registrar
Ms Jeffress

TRIBUNAL:Member A Cichy
DECISION DATE: 27 September 2024
DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – change of care occurred – children were not made available to father – Tribunal has arrived at the same decision as that of Child Support – decision under review is affirmed

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 theChild Support (Registration and Collection) Act 1988.

REASONS FOR DECISION

BACKGROUND

As relevant to this application, Mr Pether and Ms Jeffress are parties to a care percentage case registered with Services Australia – Child Support (Child Support) in relation to financial support to be provided for [Child 1] (born 2009), [Child 2] (born 2010) and [Child 3] (born 2013). This application concerns a single decision of Child Support about the percentage of care determinations for each parent for [Child 1], [Child 2] and [Child 3] used in calculation of the child support liability.
From 9 November 2015, the pre-existing percentages of care applying to the child support assessment for [Child 1], [Child 2] and [Child 3] were 21% to Mr Pether and 79% to Ms Jeffress.

On 1 August 2023, Ms Jeffress contacted Child Support and advised that the care position of [Child 1], [Child 2] and [Child 3] from 31 August 2021 had changed such that she had 100% care of the children.
On 18 January 2024, Child Support decided to revoke the pre-existing percentage of care determinations recorded for each parent for [Child 1], [Child 2] and [Child 3] and record new percentage of care determinations of 100% to Ms Jeffress and 0% to Mr Pether. Notably, as Ms Jeffress notified the change of care on 1 August 2023, more than 28 days after the change of care was found to have occurred on 31 August 2021 (the date of the notification of the change of care), the recorded increased percentage of care from 79% to 100% to Ms Jeffress applied from 1 August 2023. However, the decreased percentage of care from 21% to 0% to Mr Pether applied from 31 August 2021 (the date of the care change).
On 18 January 2024, Mr Pether objected to this decision and, on 18 March 2024, a delegate of the Child Support Registrar disallowed the objection.
On 12 July 2024, Mr Pether lodged an application with the Tribunal seeking an independent review of Child Support’s decision.
A hearing took place on 27 September 2024 with Mr Pether and Ms Jeffress both participating by telephone and giving evidence on affirmation. With Ms Jeffress’s consent, Mr Pether’ partner attended the hearing in order to take notes…

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 4115
Decision Date: 27 September 2024

CaseChat Overview and Summary

This matter concerned an appeal by the father, Mr Jeffress, against a decision of the Child Support Registrar, affirmed by the Administrative Appeals Tribunal, regarding the percentage of care for the parties' children. The dispute arose following a change in the children's living arrangements, where the children were not made available to the father.

The Administrative Appeals Tribunal was required to determine whether the percentage of care attributed to the father was correctly assessed, particularly in light of the change in the children's living arrangements and the fact that they were not made available to him. The Tribunal considered the provisions of the *Child Support (Registration and Collection) Act 1988* (Cth) and relevant case law concerning changes in care.

The Tribunal affirmed the decision of the Child Support Registrar, finding that the evidence supported the assessment of the percentage of care. The Tribunal's reasoning focused on the practical reality of the children's living arrangements and the father's inability to exercise his assessed percentage of care due to the children not being made available to him. The Tribunal applied the principles that the assessment of care must reflect the actual circumstances and that a parent cannot be credited with care that is not being provided or facilitated.

The appeal was dismissed, and the decision of the Administrative Appeals Tribunal was affirmed.

Orders