Sandridge and Zelly (Child support) - [2024] AATA 1888

Sandridge and Zelly (Child support) [2024] AATA 1888 (2 May 2024)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2024/PC027539
APPLICANT:  Mr Sandridge
OTHER PARTIES:  Child Support Registrar
Ms Zelly

TRIBUNAL:Member S Letch
DECISION DATE: 2 May 2024
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the existing care percentages recording Mr Sandridge’s care of [the child] as 28% and Ms Zelly’s care as 72% ought not to have been revoked.

CATCHWORDS

CHILD SUPPORT – percentage of care – short and minor deviation from usual arrangements during child’s illness does not warrant revocation of existing pattern – common sense, ‘broad brush’ approach – decision under review set aside

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

Mr Sandridge and Ms Zelly are the parents of [the child]. This matter concerns a decision by Child Support about his recorded care.
It is convenient by way of background to set out some extracts from the objections officer decision dated 14 February 2024:
…
DECISION UNDER REVIEW
Our decision made on 16 June 2023, to reflect the care of [the child] as 100% to Ms Zelly and 0% to Mr Sandridge from 15 March 2023, notified on 15 March 2023.
…
WE CONSIDERED THE FOLLOWING EVIDENCE IN THE DECISION
Mr Sandridge and Ms Zelly have had a registered Child Support case for [the child] since 18 May 2021.
Prior to the decision under review, the care for [the child] was reflected as actual care of 72% to Ms Zelly and 28% to Mr Sandridge from 19 October 2021.
On 15 March 2023, Ms Zelly lodged a change in care for [the child]. Ms Zelly advised that she had
100% care of [the child] from 15 March 2023.
On 13 June 2023, Mr Sandridge advised from the 26 April 2023, they had new court orders issued in which the care is occurring in accordance with the written care arrangement. Mr Sandridge advised [the child] was in
their care five nights a fortnight, which they claimed needed to be adjusted.
On 15 June 2023, Ms Zelly advised that 26 April 2023 is incorrect as [the child] was ill and returned to
Mr Sandridge's care on 27 April 2023. Ms Zelly advised the court ordered care was for the makeup of 5 nights of care that Mr Sandridge missed in the period 15 March 2023 to 26 April 2023 (six weeks). As the makeup care was not equivalent to the care missed over this period, Ms Zelly requested that the period over which Mr Sandridge had below regular care for [the child] be appropriately accounted for in the assessment.
On 16 June 2023, Mr Sandridge confirmed that he has been awarded five makeup days for…

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 1888
Decision Date: 2 May 2024

CaseChat Overview and Summary

This matter concerned an appeal by Sandridge against a decision of the Child Support Registrar concerning the percentage of care for the parties' child. The dispute arose from Sandridge's contention that a temporary deviation from the usual care arrangements, necessitated by the child's illness, should not alter the established percentage of care.

The primary legal issue before the Tribunal was whether a short and minor deviation from the usual pattern of care, specifically due to a child's illness, warranted a revocation of an existing percentage of care determination. The Tribunal was required to consider the application of the 'common sense' and 'broad brush' approach in assessing care arrangements under the *Child Support (Registration and Collection) Act 1988*.

Member S Letch determined that the Registrar's decision was based on an incorrect application of the law. The Tribunal reasoned that temporary disruptions to care, such as those caused by a child's illness, should not be treated as a fundamental change to the established pattern of care. Applying a common-sense, broad-brush approach, the Tribunal found that the deviation was minor and temporary, and therefore did not justify revoking the existing percentage of care. The decision under review was set aside.

Orders