Wagner and Wagner (Child support) - [2020] AATA 3672

Wagner and Wagner (Child support) [2020] AATA 3672 (14 July 2020)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2020/SC019132
APPLICANT:  Mr Wagner
OTHER PARTIES:  Child Support Registrar
Ms Wagner

TRIBUNAL:Member M Douglas
DECISION DATE: 14 July 2020
DECISION:

The decision under review is affirmed.

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 - court orders not complied with - reasonable action not taken - interim period does not apply - 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

Mr Wagner has applied for a review of an objection decision a delegate of the Child Support Registrar made on 30 April 2020 relating to the care percentages used in the child support assessment for his and Ms Wagner’s children, [Child 1] and [Child 2].
The Child Support Registrar acts through staff employed by a government department known as Services Australia. It is convenient to refer to the Registrar in these reasons as Services Australia.
[In] November 2016 orders were made by Judge Dunkley in the Federal Circuit Court of Australia in proceedings between Mr and Ms Wagner relating to the children that included orders about where the children would live. Basically, those orders provided for the children to live with Ms Wagner but to spend time with Mr Wagner on each alternate weekend during school terms, for half of each school holiday period and on specified other special occasions. Mr Wagner and Ms Wagner’s care of the children reflected that stipulated in those orders until 21 June 2019. Services Australia made care percentage determinations based on the care that Mr Wagner and Ms Wagner had of their children pursuant to those orders, such that Ms Wagner’s care percentage was 79% and Mr Wagner’s 21%.
It is common ground that Mr Wagner has not had care of the children at all since 22 June 2019. Ms Wagner informed Services Australia of that on 18 October 2019.
On 6 December 2019 Services Australia:
·revoked its determination that Mr Wagner’s care percentage for the children was 21%, with that revocation taking effect on 21 June 2019, and determined a new care percentage for him for the children of 0% that took effect from 22 June 2019;
·revoked its determination that Ms Wagner’s care percentage for the children was 79%, with that revocation taking effect on 17 October 2019, and determined a new care percentage for Ms Wagner for the children of 100% that took effect from 18 October 2019.
On 9 December 2019 Mr Wagner objected to that decision. On 30 April 2020 Services Australia disallowed his objection.
Thereupon Mr Wagner applied…

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: [2020] AATA 3672
Decision Date: 14 July 2020

CaseChat Overview and Summary

The case of *Wagner and Wagner* concerned a dispute over the percentage of care arrangements for a child. The applicant sought to have existing percentage of care determinations revoked and new determinations made, alleging that court orders regarding care had not been complied with and that reasonable action had not been taken to ensure compliance. The matter came before the court for review of a decision made by the Child Support Registrar.

The primary legal issue before the court was whether there had been a change to the likely pattern of care for the child, necessitating a revocation of existing percentage of care determinations and the making of new ones. This involved considering whether the non-compliance with court orders and the failure to take reasonable action constituted a material change in circumstances that warranted a reassessment of the care arrangements under the *Child Support (Registration and Collection) Act 1988*. The court also had to determine whether the interim period provisions were applicable in this instance.

The court affirmed the decision under review, finding that the applicant had not demonstrated a sufficient change to the likely pattern of care. It was held that the existing percentage of care determinations should not be revoked. The court's reasoning focused on the specific factual circumstances presented and the requirements of the relevant legislation regarding changes to care arrangements and the application of interim periods. The court concluded that the Registrar's decision was correct and that no new percentage of care determinations were warranted.

Orders