Tuttle and Riddle (Child support) - [2024] AATA 1890

Tuttle and Riddle (Child support) [2024] AATA 1890 (2 May 2024)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/SC026821
APPLICANT:  Ms Tuttle
OTHER PARTIES:  Child Support Registrar
Mr Riddle

TRIBUNAL:Member M King
DECISION DATE: 02 May 2024
DECISION:

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

From 17 February 2023, Ms Tuttle be recorded as having 90% care of [Child 1] and Mr Riddle be recorded as having 10% care of [Child 1].
From 9 June 2023, Ms Tuttle be recorded as having 84% care of [Child 1] and Mr Riddle be recorded as having 16% care for [Child 1].
The change to the pattern of care was advised to the Child Support Registrar on 10 May 2023.

CATCHWORDS

CHILD SUPPORT – percentage of care – determination of care – care arrangement as supported by the evidence – 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 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

As relevant to this application, Ms Tuttle and Mr Riddle are parties to a child support case registered with Services Australia – Child Support (Child Support) in relation to financial support to be provided for [Child 1] (born 2014).
Ms Tuttle had been recorded as having 79% care of [Child 1], and Mr Riddle 21% care of [Child 1], from 28 May 2020.
On 10 May 2023, Ms Tuttle advised Child Support that she had 93% care of [Child 1], and Mr Riddle had 7% care of [Child 1], from 17 February 2023.
On 8 June 2023, Child Support decided to record Ms Tuttle as having 93% care of [Child 1], and Mr Riddle 7% care of [Child 1], from 17 February 2023.
On 22 June 2023, Mr Riddle objected to that decision.
On 20 September 2023, a Child Support objections officer partly allowed the objection and decided to record Ms Tuttle as having 84% care of [Child 1], and Mr Riddle as 16% care of [Child 1], from 17 February 2023.

On 25 September 2023, Ms Tuttle lodged an application with the Tribunal seeking an independent review of Child Support’s decision.

The hearing of the application before the Tribunal was held on 5 April 2024. Ms Tuttle and Mr Riddle attended the hearing by telephone conference and gave sworn evidence. The Tribunal deferred making a decision to allow Ms Tuttle and Mr Riddle to provide any further evidence they wished the Tribunal to consider.
In considering the application, the Tribunal took into account the oral evidence and submissions of Ms Tuttle and Mr Riddle, the documentary material provided by Child Support to the Tribunal (Exhibit 1, pages 1 to 242), additional evidence provided by Ms Tuttle (Exhibit A, pages 1 to 12) and additional evidence…

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 1890
Decision Date: 2 May 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the dispute between Tuttle and Riddle concerning the determination of the percentage of care for a child. The applicant, Tuttle, sought to review a decision made by the Registrar of the Child Support Agency regarding the child support assessment.

The primary legal issue before the Tribunal was to determine the correct percentage of care attributable to each parent, as this directly impacts the child support payable. The Tribunal was required to assess the evidence presented to ascertain the actual care arrangements for the child and whether the Registrar's decision accurately reflected these arrangements.

Member M King, sitting as the Tribunal, reviewed the evidence concerning the day-to-day care, welfare, and development of the child. The Tribunal applied the principles of the *Child Support (Registration and Collection) Act 1988* (Cth) and relevant case law concerning the assessment of care percentages. The Tribunal found that the evidence did not support the Registrar's determination of the percentage of care. Consequently, the Tribunal set aside the Registrar's decision and substituted its own finding regarding the percentage of care.

Orders