Tollemache and Wodefold (Child support) - [2024] AATA 874

Tollemache and Wodefold (Child support) [2024] AATA 874 (1 March 2024)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/BC026540
APPLICANT:  Ms Tollemache
OTHER PARTIES:  Child Support Registrar
Mr Wodefold

TRIBUNAL:Member D Tucker
DECISION DATE: 1 March 2024
DECISION:

The decision under review is affirmed.

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 – 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

Assessment

Ms Tollemache (the mother) and Mr Wodefold (the father) are the separated parents of two children. This application relates to the care of [Child 1], born [date] 2006, aged 17 years (the child).
A child support case commenced from 29 March 2022. From 1 June 2011 Services Australia – Child Support (Child Support) recorded the care of the child as 51% and 49% to the mother and father respectively.

Change in care decision – 20 March 2023

On 27 January 2023, the father notified Child Support that the child was now living with him full-time and had only spent two nights at his mother’s home since 24 November 2022. Although he believed he had 100% care, he requested that Child Support reflect care percentages of 80% and 20% to him and the mother respectively.
The same day, the mother disputed this, telling Child Support that because the father was overseas in October 2022, he had missed some of his care, and the child was now spending extra time with the father to make this up. She expected that the usual 50-50 pattern of care would resume after the Christmas school holidays.
On 1 February 2023 the mother spoke to Child Support again. According to the corresponding file note,[1] the mother stated that the court orders had not been complied with since 12 June 2022. However, the Tribunal notes that this is inconsistent with subsequent statements by the mother that the court orders were complied with up until 26 December 2022.
[1] Page 14 of the hearing papers
On 23 February 2023 the father told Child Support that:
· the child was adamant that he wanted to reside with him and stay with the mother each Monday and Tuesday night. The child would not have decided to stay with his mother at all without the father’s encouragement.
· From 23 November 2022 until 23 February 2023, the child had stayed with the mother a total of 11 nights: January 30-31, February 6-7,13-14, 20-21.
On 25 February 2023 the father asked Child Support to reflect care percentages of 12 nights per year to the mother, and the balance of care to him.
On 27 February 2023 the mother stated that…

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 874
Decision Date: 1 March 2024

CaseChat Overview and Summary

The Federal Court, in the matter of *Oldfather and Fountaine (Child Support)*, considered a dispute concerning the application of interim periods for child support care percentage determinations. The case involved a mother and father who had previously been subject to interim periods regarding the care of their older child. The mother sought to have an interim period determined in the present instance, arguing that the conditions stipulated in section 51 of the relevant Act were met.

The central legal issue before the court was the interpretation of paragraph 53(1)(c) of the Act, specifically in circumstances where existing care percentage determinations are revoked under sections 54F or 54H. The court was required to determine whether, following such revocations, section 51, which governs interim periods, remained applicable.

The Federal Court favoured the interpretation that where existing care percentage determinations are revoked under sections 54F or 54H, section 51 is rendered inapplicable. This means an interim period can only apply if it is the initial care percentage determination for a responsible person's care of a particular child, or where existing determinations are revoked under section 54G. Although the Tribunal found that the conditions for an interim period were met in this specific case, it was bound by the Federal Court's interpretation of paragraph 53(1)(c). Consequently, the Tribunal had to consider the actual care that necessitated the revocation of existing percentages under section 54F. The Tribunal concluded that from 26 December 2022, the care percentages were 28% for the mother and 72% for the father. As this conclusion aligned with the Child Support Registrar's review decision, the Tribunal affirmed that decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Federal Court decided the test case Oldfather and Fountaine (Child Support) [2023] AATA 3301 on 1 February 2024. The Court’s judgment,[5] giving reasons for its decision, became available more recently. [5] Child Support Registrar v CMU23 [2024] FCA 109 (fedcourt.gov.au) Link: >The Court favoured the CSR’s interpretation of paragraph 53(1)(c) – that where existing care percentage determinations are revoked under section 54F or 54H, this renders section 51 inapplicable. This means that an interim period can only apply where it is the first care percentage determined in relation to a responsible person’s care of a particular child (start of case). Another circumstance may be where existing care percentage determinations are revoked under section 54G.The mother and father have previously been subject to interim periods in relation to a change in care of their older child. The mother asked the Tribunal to determine an interim period in this instance, on the basis that the conditions for doing so, set out in section 51 of the Act, were met. For the sake of completeness, the Tribunal finds that these conditions were met, as the court orders of 25 May 2018 were adhered to prior to 26 December 2022, and the mother and the father both took reasonable action to follow the court orders from the date of the change in care.However, the Tribunal is obliged to accept the interpretation of paragraph 53(1)(c) provided by the Federal Court. Therefore, the Tribunal must consider the actual care which required the existing care percentages to be revoked under section 54F. As set out above, the Tribunal’s finding is that from 26 December 2022 the care percentages are 28% and 72% to the mother and the father respectively. As the Tribunal has reached the same conclusion as Child Support in its review decision of 20 July 2023, it will affirm the decision under review.DECISIONThe decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

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