Schaapwol and Sialkirk (Child support) - [2024] AATA 4113

Schaapwol and Sialkirk (Child support) [2024] AATA 4113 (30 August 2024)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2024/BC027856
APPLICANT:  Ms Schaapwol
OTHER PARTIES:  Child Support Registrar
Mr Sialkirk

TRIBUNAL:Senior Member R Ellis
DECISION DATE: 30 August 2024
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that:

(a) Ms Schaapwol provides 86 per cent care of [the children] and Mr Sialkirk provides 14 per cent care from 1 January 2022, notified on 21 June 2023; and

(b) Ms Schaapwol provides 100 per cent care of [the children] and Mr Sialkirk provides 0 per cent care from 20 September 2022, notified on 14 November 2023.

CATCHWORDS

CHILD SUPPORT – percentage of care – change to the pattern of care – court orders not followed for several years, with no regular overnight care by father – distance and teenaged children’s own interests – father’s concession that pattern later changed, then ceased – relevant policy not inconsistent with provisions of legislation – 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 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

This review is about a change to the percentage of care determinations for Ms Schaapwol and Mr Sialkirk in respect of their children [Child 1] (born January 2007) and [Child 2] (born August 2008). There has been a child support assessment in place since 3 April 2009.
From 1 July 2012 the child support assessment reflected Ms Schaapwol as having 75 per cent care and Mr Sialkirk as having 25 per cent care of [the children].
On 21 June 2023 Ms Schaapwol notified Services Australia – Child Support (Child Support) of a change to the care arrangements stating that she was providing 87 per cent care and Mr Sialkirk was providing 13 per cent care of [the children] from 1 January 2022.
On 10 October 2023 Child Support made the decision to reflect that Ms Schaapwol provides 87 per cent care of [the children] and Mr Sialkirk provides 13 per cent care from 1 January 2022.
On 15 October 2023 Mr Sialkirk objected to this decision and on 19 April 2024 Child Support allowed the objection and made the decision to reflect that Ms Schaapwol provides 86 per cent care of [the children] and Mr Sialkirk provides 14 per cent care from 1 January 2022 (the objection decision).
On 24 April 2024 Ms Schaapwol applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.
The Tribunal conducted a hearing into the application on 30 August 2024. Ms Schaapwol and Mr Sialkirk gave evidence on affirmation by Microsoft Teams audio. Child Support provided the Tribunal and the parties with papers relevant to the matter (419 pages).

ISSUES

The statutory provisions…

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 4113
Decision Date: 30 August 2024

CaseChat Overview and Summary

This matter concerned an appeal by the father, Mr Schaapwol, against a decision of the Child Support Registrar concerning the assessment of child support payable for his two children. The dispute centred on the percentage of care attributed to each parent, specifically whether a change in the pattern of care had occurred and, if so, when that change should be recognised for the purposes of child support assessment. The appeal was heard by Senior Member R Ellis of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was to determine the correct percentage of care for the children, and consequently the appropriate child support assessment, given that the father's asserted pattern of care had not been followed for several years. This involved considering whether the Registrar had erred in failing to recognise a change in the pattern of care, particularly in light of the children’s own preferences and the practical difficulties arising from the distance between the parents. The Tribunal also had to consider the relevant provisions of the *Child Support (Registration and Collection) Act 1988* (Cth) and whether the Registrar’s decision was consistent with the legislative framework.

Senior Member Ellis reasoned that while the father had initially conceded that the pattern of care had changed and then ceased, the Registrar’s decision had not adequately accounted for this shift. The Tribunal considered the evidence regarding the lack of regular overnight care by the father for a significant period, the geographical distance between the parties, and the expressed wishes of the teenage children. The Senior Member found that the Registrar’s decision was inconsistent with the factual circumstances and the legislative intent regarding the recognition of actual care arrangements. The Tribunal set aside the Registrar's decision and substituted its own assessment, reflecting the established pattern of care.

Orders