Waering and Shalders (Child support) - [2024] AATA 1180

Waering and Shalders (Child support) [2024] AATA 1180 (13 March 2024)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/SC026948
APPLICANT:  Mr Waering
OTHER PARTIES:  Child Support Registrar
Ms Shalders

TRIBUNAL:Member R Prasad
DECISION DATE: 13 March 2024
DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – change to the likely pattern of care – existing percentage of care determinations revoked – dates of application of new determinations – decision under review affirmed

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

Since 21 April 2021, Mr Waering (the father) and Ms Shalders (the mother) have had a registered child support assessment for their child, born [in] February 2021. Services Australia – Child Support (Child Support) has collected child support on the basis the mother had 100% care and the father had no care of the child from that date. These percentages denote the existing percentages of care.
On 30 December 2022, the father contacted Child Support and advised that he had care of the child five nights each week from 23 November 2021 to 28 September 2022, and then from 29 September 2022 he has had two nights care per week.
On 3 March 2023, the mother disagreed with the care change notification and stated that she did not believe the dates to be correct.
On 8, 15 and 19 March 2023, the father provided third-party statements from his friends, former work colleagues and his father (the paternal grandfather). On 27 March and 4 April 2023, the mother provided two self-written statements and supporting evidence, including third-party statements from a friend and her mother (the maternal grandmother), day care centre statements from 21 November 2022 to 2 April 2023, and letters from her lawyers, day care, and the child’s paediatrician.
On 6 April 2023, Child Support decided to reflect the care as 72% to the father and 28% to the mother from 23 November 2021, notified on 30 December 2022 (the care decision).
On 11 April 2023, the mother made an objection on the basis that the father ‘was motivated to make the care changes as [she had] asked Child Support Agency to collect on [her] behalf as he has kept quiet and not paid any child support for the past 2 years’.
The father disputed the mother’s objection and on 20 and 25 April 2023, he provided further information to support his claim including third-party statements which appear to be what he provided previously but redated and a further statement from his work supervisor, employment leave he took between the period 14 November 2022 to 31 December 2022, and text messages between the paternal grandfather and the mother during the period 28 November 2021 and 24 June…

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 1180
Decision Date: 13 March 2024

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, Waering, against a decision of the Child Support Registrar concerning the percentage of care for the parties' child. The dispute centred on whether there had been a change to the likely pattern of care for the child, which would necessitate a revocation of existing percentage of care determinations and the making of new ones. The case was heard by Member R Prasad of the Child Support Special Powers Tribunal.

The primary legal issue before the Tribunal was to determine whether the Registrar had erred in revoking the existing percentage of care determinations and in setting the dates for the application of any new determinations. This required the Tribunal to assess the evidence presented regarding the actual and likely future care arrangements for the child and to consider the relevant provisions of the *Child Support (Registration and Collection) Act 1988* (Cth) concerning changes to care arrangements.

Member R Prasad affirmed the decision of the Child Support Registrar. The Tribunal found that the evidence supported the Registrar's conclusion that there had been a change to the likely pattern of care for the child. The Tribunal applied the principles of the *Child Support (Registration and Collection) Act 1988* which allow for the revocation of existing percentage of care determinations and the making of new ones when there is a significant and ongoing change in the pattern of care. The Tribunal was satisfied that the Registrar had correctly identified the date from which the new pattern of care was likely to commence.

Orders