Tatro and Duckworth (Child support) - [2023] AATA 3746

Tatro and Duckworth (Child support) [2023] AATA 3746 (26 September 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/SC025945
APPLICANT:  Ms Tatro
OTHER PARTIES:  Child Support Registrar
Mr Duckworth

TRIBUNAL:Member M Douglas
DECISION DATE: 26 September 2023
DECISION:

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

Pursuant to subsection 54F(1) of the Child Support (Assessment) Act 1989, Mr Duckworth’s percentage of care for [Child 1] is revoked;
In accordance with subparagraph 54F(3)(b)(i) the revocation of Mr Duckworth’s percentage of care for [Child 1] takes effect on 17 December 2021;
Pursuant to subsection 50(2), Mr Duckworth’s percentage of care for [Child 1] is determined to be 0% for the period 18 December 2021 to 26 January 2022 and 100% from 27 January 2022.

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 – 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

Ms Tatro and Mr Duckworth are the parents of [Child 1], for whom administrative assessments of child support were issued covering 24 January 2017 to 13 June 2022. The care percentages for [Child 1] that were used in the assessment as at 18 December 2021 were 100% for Mr Duckworth and 0% for Ms Tatro. On 21 November 2022 Ms Tatro advised Services Australia - Child Support (Child Support) that the care of [Child 1] had changed for the period 18 December 2021 to 27 January 2022 such that [Child 1] had resided with her for the whole of that period. She advised Child Support that from 27 January 2022 [Child 1] again went to reside with Mr Duckworth for 100% of the time.
Child Support wrote to Mr Duckworth on 22 November 2022 advising him of what Ms Tatro had informed it regarding the care of [Child 1]. On that same date Mr Duckworth contacted Child Support and advised it that what Ms Tatro said was “rubbish” and that [Child 1] spent a couple of nights in Ms Tatro’s care and not weeks. Mr Duckworth again contacted Child Support again on 1 December 2022 and advised it that he had just remembered that [Child 1] stayed with Ms Tatro after Christmas as he had COVID-19.
On 16 December 2022 Child Support decided not to revoke the existing percentages of care for [Child 1]. It notified Ms Tatro and Mr Duckworth of this by letters sent to each of them dated 16 December 2022.
On 21 December 2022 Ms Tatro objected to that decision. On 15 March 2023 Child Support disallowed her objection. Ms Tatro has now applied to…

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: [2023] AATA 3746
Decision Date: 26 September 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the dispute between Tatro and Duckworth concerning the percentage of care arrangements for their child. The applicant, Tatro, sought to have the existing percentage of care determinations revoked and new determinations made, arguing there had been a change to the likely pattern of care.

The Tribunal was required to determine whether there had been a material change in the likely pattern of care for the child since the last assessment, and if so, whether to revoke the existing percentage of care determinations and make new ones. The central legal issue was the interpretation and application of the relevant provisions of the *Child Support (Registration and Collection) Act 1988* (Cth) concerning changes to care arrangements.

The Tribunal's reasoning focused on assessing the evidence presented regarding the actual and intended future care arrangements for the child. It applied the principles established in child support legislation and case law concerning what constitutes a "change" in the likely pattern of care, considering factors such as the stability and duration of any proposed alterations. The Tribunal carefully weighed the evidence to ascertain if the proposed changes met the threshold for varying the existing care percentages.

The Tribunal set aside the previous decisions and made new percentage of care determinations, reflecting its findings on the altered care arrangements.

Orders