Anello and Anello (Child support)

[2020] AATA 2041

Anello and Anello (Child support) [2020] AATA 2041 (19 March 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/MC018240

APPLICANT:  Mr Anello

OTHER PARTIES:  Child Support Registrar

Ms Anello

TRIBUNAL:Member J Longo

DECISION DATE:  19 March 2020

DECISION:

The tribunal sets aside the decisions under review and, in substitution, decides that Mr Anello has a percentage of care of 33% for [Child 1] and Ms Anello has a percentage of care of 67% for [Child 1] with effect from 12 November 2019.

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

1. Mr Anello and Ms Anello are the parents of [Child 1]. Mr Anello is the parent liable to pay child support.

2. On 19 November 2019, the Department of Human Services – Child Support (the Department) determined that Mr Anello had a percentage of care of 38% for [Child 1] and Ms Anello had a percentage of care of 62% from 19 November 2019.

3. On 20 November 2019, Ms Anello lodged an objection to the above care decision of the Department, stating that the calculation of the care for [Child 1] was incorrect. On 16 January 2020, the Department allowed the objection and determined that Mr Anello had a percentage of care of 31% for [Child 1] and Ms Anello had a percentage of care of 69% from 19 November 2019.

4. On 17 January 2020, Mr Anello lodged an application to the Administrative Appeals Tribunal (the tribunal) for a review of the decision. The hearing took place on 19 March 2020. Mr Anello and Ms Anello spoke to the tribunal via conference telephone and gave sworn evidence. In making its decision the tribunal took into consideration the documents provided by the Department (132 pages), which were also sent to Ms Anello and Mr Anello. The tribunal also considered the information provided by Mr Anello (A1 to A6) and Ms Anello (B1 to B8), which were exchanged with both parties and provided to the Department.

CONSIDERATION

1. The law that applies in this case is the Child Support (Assessment) Act 1989 (the Act).

What is the care of [Child 1]?

1. It is not in dispute that the Department had recorded that the care of [Child 1] was Ms Anello having 86% and Mr Anello having 14% of the care from 4 January 2019. It is also not in dispute that Ms Anello contacted the Department on 19 November 2019 to advise that the care of [Child 1] had changed. The tribunal finds accordingly.

2. Mr Anello and Ms Anello both confirmed that there were final court orders made in relation to the care of [Child 1] on 12 November 2019. A copy of the orders was provided to the Department and are found in the documents provided by the Department. It is not in dispute that these court orders state that Mr Anello has the care of [Child 1] four nights per fortnight during school term. This is divided during the school term as follows: Thursday night in week one; and Friday, Saturday and Sunday night in week two during this period. The orders also state, and it is not in dispute, that Mr Anello has the care of the child for one half of the school holidays.

3. Mr Anello’s submission to the tribunal was that the calculation by the Department was incorrect as it does not accurately reflect his level of care. In addition, Mr Anello submitted that the orders, as he understood them, equate him with 125 days of care of [Child 1], not 116 days as determined by the Department. Mr Anello stated that the orders should read that while the school term care is suspended during the school holiday periods, the alternating care continues so that it then resumes once school term commences. For example, if his last week of care prior to the term one school holiday ending is the week he has [Child 1] on Thursday night, then this pattern will continue for the school holidays even though suspended. This means, according to Mr Anello’s submissions, that he will resume his care for [Child 1] in the second school term having [Child 1] in his care for three nights in accordance with week two of his allocated care for the school term period.

4. Ms Anello’s submission was that the care is suspended during the school holiday period and recommences when the school term resumes. Ms Anello also disagreed that this created additional days of care for Mr Anello. Ms Anello stated that [Child 1] has 11 weeks of school holidays, which was not disputed by Mr Anello.

5. Section 50 of the Act requires a new determination of a percentage of care to be made where the tribunal is satisfied either that the person has had, or is likely to have, a pattern of care during a care period as considered to be appropriate having regard to all the circumstances. In both Mr Anello’s and Ms Anello’s submissions, they have stated that their respective percentages of care for [Child 1] have changed to the percentages determined by the Department from 4 January 2019.

Should the existing care determinations in relation to [Child 1] be revoked?

11.Subsection 54F(1) of the Act sets out certain circumstances in which a determination of a percentage of care must be revoked. Specifically, it states that an existing determination must be revoked if the Registrar is notified that the care taking place does not correspond with the responsible person’s existing care of the child or children. Ms Anello notified the Department that the care taking place did not correspond with the existing care of [Child 1] on 19 November 2019. Ms Anello stated to the Department that the care changed from 12 November 2019.

12.In this case, the tribunal has determined that a care determination was made under section 50 of the Act from 4 January 2019 and that Ms Anello had a percentage of care for [Child 1] of 86% and that Mr Anello had a percentage of care of 14% for [Child 1]. Therefore, paragraph 54F(1)(a) of the Act is satisfied. Section 50 of the Act provides that if the tribunal revokes a determination and is satisfied that a party has had, or is likely to have, a pattern of care of [Child 1], the tribunal must determine the percentage of care during the care period. ‘Actual care’ may be worked out based on the number of nights the child was or will be in the care of the person (subsection 54A(1)).

13.The tribunal is required to consider what the actual care of [Child 1] was or is likely to be during the care period. The care period is such a period as the Child Support Registrar considers appropriate having regard to all the circumstances (section 50 of the Act). The Department’s policy, as set out in Chapter 2.2.1 of the Child Support Guide, is that a care period is generally a 12-month period from the day on which the actual care for a child changed. This policy is not binding on the tribunal. The tribunal considers that, in the circumstances of this case, an appropriate care period is the period from 12 November 2019, being the date from which Ms Anello notified the Department that the change to care arrangements occurred and that the care period should be a two-year period. The tribunal notes that while the care changes, according to the final court orders, in odd and even numbered years the pattern of care throughout remains the same. The tribunal has determined that it is the pattern of care that Mr Anello and Ms Anello will have based on the court orders and not the particular days of care as provided in Mr Anello and Ms Anello’s calendars. This pattern of care is not in dispute: Mr Anello’s pattern is to have four nights per fortnight during school term and half of the school holidays. This equates to Mr Anello having 122 nights of care for [Child 1], taking into account the alternating dates over the two-year period.

14.The tribunal has determined that the care should be changed from 12 November 2019 to reflect that [Child 1] was in Mr Anello’s care for 33% of the time and in Ms Anello’s care 67% of the time, based on the court orders. Accordingly, the previous determination of care is revoked from 11 November 2019 and a new determination made from 12 November 2019.

DECISION

The tribunal sets aside the decisions under review and, in substitution, decides that Mr Anello has a percentage of care of 33% for [Child 1] and Ms Anello has a percentage of care of 67% for [Child 1] with effect from 12 November 2019.