Ballas and Kaitz (Child support)

[2018] AATA 4413

Ballas and Kaitz (Child support) [2018] AATA 4413 (8 August 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2018/BC013934 & 2018/BC013965

APPLICANT:  Mr Ballas

OTHER PARTIES:  Child Support Registrar

Ms Kaitz

TRIBUNAL:Member S Letch

DECISION DATE:  08 August 2018

DECISION:

The decision under review is varied so that care for [Child 1] and [Child 2] from 6 December 2017 is to be recorded as 39% to Mr Ballas and 61% to Ms Kaitz.

CATCHWORDS
CHILD SUPPORT – Percentage of care – Care in accordance with a court order – Pattern of care – Determination revoked and new determination made – Decision under review varied

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

1. Mr Ballas and Ms Kaitz are the parents of [Child 1] and [Child 2].  Prior to 6 December 2017, care for the children had been recorded as 35% to Mr Ballas and 65% to Ms Kaitz. On 6 December 2017, Mr Ballas informed the Child Support Agency (“CSA”) that the children, with effect from 20 September 2017, were in his care for 42% of the time (151 nights per annum).

2. On 29 January 2018, the CSA decided that there had been a change to the pattern of care; it was determined that, from 6 December 2017, care was to be recorded as 38% to Mr Ballas and 62% to Ms Kaitz.

3. On 30 January 2018, Mr Ballas objected to the decision.

4. Somewhat curiously, two objection decisions were sent to the parties on the same day (3 April 2018) recording different outcomes. One recorded that the objection had been “partly allowed” and advised that “We have made the decision to refuse a change to [Child 1] and [Child 2]’s level of care to reflect 58% care to Ms Kaitz and 42% care to Mr Ballas from 20 September 2017”. (The effect of that “decision”, the Tribunal assumes, would have been not to revoke the existing “65/35” care determination).

5. The second objection decision recorded the objection had been disallowed;  the recorded decision was to affirm a change in the pattern of care with effect from 6 December 2017 granting Mr Ballas 38% and Ms Kaitz 62%.

6. Given the CSA computer records reflecting the latter, the Tribunal considered the intended decision is the second decision. The Tribunal can only speculate that the parties were inadvertently sent a draft as well as the “final” decision. Regardless, the Tribunal proceeded on the basis that the objection decision under review is the decision which disallowed the objection to the original decision made on 29 January 2018. 

7. On 1 May 2018, Mr Ballas applied to this Tribunal for review of the objections officer’s decision.  The Tribunal conducted a hearing on 8 August 2018, with both parties participating by telephone. Both parties gave sworn evidence.

CONSIDERATION

1. The law relevant to this decision is contained in the Act. Sections 49 and 50 of the Child Support (Assessment) Act 1989 (“the Act”) require a new determination of percentage of care for a child to be made in certain circumstances. First, the question arises as to whether the existing care determination ought to be revoked. The date of effect is when the previously determined pattern of care ceased: subsection 54G(2).

2. If section 54G does not apply, section 54F provides that if the CSA was notified, or otherwise became aware, of the change within 28 days after that day, then revocation takes effect the day before the change of care day (subparagraph 54F(2)(ii)). However, if the CSA is notified or becomes aware more than 28 days after the change of care day that the care of the child no longer corresponds with the existing care determination, the revocation takes effect on the day that the CSA was so notified.

3. The Family Court Order dated 6 December 2017 gives Mr Ballas five nights per fortnight during school term, and half the school holidays (in even-numbered years, Mr Ballas has the first half of the holidays; in odd-numbered years, Ms Kaitz has the first half). Mr Ballas drew attention to the extra nights each year which he says have not been taken into account. He pointed to paragraph 5(a) of the Family Court Order which grants him an extra night where a relevant Monday is a public holiday; similarly, paragraph 6 gives him an additional night where Thursday is a public holiday.  There are also two pupil-free days a year during term; if it falls on a weekend he has the children, he has an extra night. He calculates that, no matter the year, he gets a minimum of an extra 2 or 3 nights a year. He also suggested he has extra nights in years he has the children for the second half of school holidays (not this year as he has the children for the first half of school holidays).  Mr Ballas said when he used the online CSA/Centrelink calendar, he arrives at a total of 152 nights.  

4. Ms Kaitz told the Tribunal she agreed with the decision of the CSA. She does not agree care had changed from 20 September 2017; there were no Orders until 6 December 2017. She said she does not understand how CSA make the calculations; however, she trusts they are assessing care properly, and in the same way they apply it to all child support parties. She pointed out that each year, the arrangements change (for example, the school holiday arrangements, and when public holidays and pupil-free days fall). Ms Kaitz said Mr Ballas “obsesses over the numbers”, and she finds it confusing.  She did not directly dispute Mr Ballas’s contention of extra nights; rather, she indicated she had not “checked all the dates”.

5. As a baseline, five nights per fortnight and half the school holidays give Mr Ballas 142 nights per year (38.9%, rounded down to 38%). The Tribunal is satisfied that Mr Ballas, with public holidays and pupil-free days, will ordinarily and in all likelihood have two or three additional nights per annum in accordance with Court Orders; Ms Kaitz did not strongly dispute that to be so. In the Tribunal’s assessment, those additional nights should be reflected in the annual pattern of care. Whether the calculation is based on 144 nights (39.4%), or 145 nights (39.7%), the percentage is rounded down to 39%.

6. The Tribunal is therefore satisfied that the existing care determination should be revoked and that, with effect from 6 December 2017, care for the children should be recorded as 39% to Mr Ballas and 61% to Ms Kaitz.

7. As this is a different conclusion to the objections officer, the decision under review will be varied.

DECISION

The decision under review is varied so that care for [Child 1] and [Child 2] from 6 December 2017 is to be recorded as 39% to Mr Ballas and 61% to Ms Kaitz.