Beaton and Beaton (Child support)

[2018] AATA 1710

Beaton and Beaton (Child support) [2018] AATA 1710 (6 April 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/MC013505

APPLICANT:  Mr Beaton

OTHER PARTIES:  Child Support Registrar

MsBeaton

TRIBUNAL:Member J Longo

DECISION DATE:  06 April 2018

DECISION:

The Tribunal sets aside the decision under review and, in substitution, has refused to revoke the determination of care. This means that Mr Beaton’s percentage of care of 44% for [Child 2] and [Child 3] and Ms Beaton’s percentage of care of 56% for [Child 2] and [Child 3] and Mr Beaton’s care percentage of 43% for [Child 1] and Ms Beaton’s care percentage of 57% for [Child 1] remain in place.

CATCHWORDS
Child Support – Percentages of care – Determination of the likely pattern of care – No change in pattern of care – Refusal to revoke existing percentages of care - 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

1.Mr Beaton and Ms Beaton are the parents of [Child 1], [Child 2] and [Child 3]. Mr Beaton is the parent liable to pay child support.

2.On 10 August 2017 the Department of Human Services – Child Support (the Department) determined that Ms Beaton had a percentage of care for [Child 1], [Child 2] and [Child 3] of 56% and that Mr Beaton had a percentage of care of 44% for [Child 2] and [Child 3] and that [Child 1] was in Ms Beaton’s care 57% and in Mr Beaton’s care 43% from 21 June 2017. 

3.Ms Beaton contacted on 29 August 2017 and stated that there had been a change in the care but that the care had changed to 32% (119 nights) for Mr Beaton and 68% (246 nights) for Ms Beaton for all three children.

4.On 5 October 2017 the Department refused to amend the percentage of care for [Child 1], [Child 3] and [Child 2].

5.On 10 October 2017 Ms Beaton lodged an objection to the decision of the Department. On 6 February 2018, an objections officer decided to partly allow Ms Beaton’s objection and determined that Ms Beaton had 67% care of [Child 1] and [Child 2] and that Mr Beaton had 33% care of [Child 1] and [Child 2] from 29 August 2017 and that Ms Beaton had 65% care of [Child 3] and Mr Beaton had 35% care of [Child 3] from 29 August 2017.

6.On 13 February 2018 Mr Beaton lodged an application to this tribunal for a review of the decision. The hearing took place on 5 April 2018. Mr Beaton attended the tribunal and gave sworn evidence. Ms Beaton participated in the hearing via conference telephone and gave sworn evidence to the tribunal. In making its decision the tribunal took into consideration the documents (numbered 1 to 200) provided by the Department which were also sent to Ms Beaton and Mr Beaton.

CONSIDERATION

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

Has there been a change in the care of [Child 1], [Child 2] and [Child 3]?

8.It is uncontroversial that the care arrangements for [Child 1], [Child 2] and [Child 3] had changed on 25 December 2016 when the Department recorded Ms Beaton as having a care percentage for [Child 1], [Child 2] and [Child 3] of 56% and Mr Beaton was assessed as having a care percentage of 44%. These care percentages were first notified to the Department on 21 June 2017 and used from this date in the assessment of child support. Prior to this date, Mr and Ms Beaton confirmed that the children’s care was divided equally between the parents 50% each. Mr Beaton told the tribunal that this was the level of care until they decided to change this to two weeks with Ms Beaton and one week with him due to his work commitments. Mr Beaton stated that they also agreed to additional time as agreed. He stated that there were no court orders or parenting plans.

9.Mr Beaton stated that although the care was changed to two weeks for Ms Beaton and one week for him, he had additional care of the children. He kept a diary of the care, including the additional dates of care, from approximately 1 January 2017. Mr Beaton stated that he has 44% (160 nights) care of [Child 1] since January 2017 but the care for [Child 2] and [Child 3] has been greater than 44%. He stated that he has had an extra 10 nights for [Child 2] and 35 nights for [Child 3] but he thinks 44% is fair reflection for all three children. The care was reported on 29 August 2017 and he is happy with this date as the date of the care change. 

10.Ms Beaton stated that the change to two weeks of care with her for [Child 1], [Child 2] and [Child 3] and one week with Mr Beaton started around 26 January 2016, at the start of the school year for 2016. When Ms Beaton advised child support of the change to this care arrangement, she was told that ad hoc dates should not be taken into account.

11.Ms Beaton stated that the extra nights of care were not agreed to but rather imposed due to the arrangements. Ms Beaton stated that she did not disagree that the children spent extra nights with Mr Beaton, because the children were going to [another city] or travelling elsewhere with Mr Beaton, but rather she was not happy with this arrangement and but did not stop it from occurring. In her view, this extra time was not part of the agreement and should not be included in the calculation of the care percentage used by the Department.

12.Section 50 of the Act requires a new determination of a percentage of care to be made where an existing determination, has been revoked and the tribunal is satisfied either that the person has had, or is likely to have, a pattern of care during a care period.

Should the existing care determinations in relation to [Child 1], [Child 2] and [Child 3] be revoked?

13.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.

14.In this case, the tribunal has determined that a care determination was made under section 50 of the Act from 21 June 2017 and that Ms Beaton had a percentage of care for [Child 1], [Child 2] and [Child 3] of 56% and that Mr Beaton had a percentage of care of 44% for [Child 2] and [Child 3] and that [Child 1] was in Ms Beaton’s care 57% and in Mr Beaton’s care 43%. 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], [Child 2] and [Child 3], the tribunal must determine the 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)).

15.The tribunal is required to consider what the actual care of [Child 1], [Child 2] and [Child 3] was or is likely to be during the care period. The care period is such a period as the Child Support Registrar considers to be appropriate having regard to all the circumstances (section 50 of the Act). The Department’s policy in this regard, 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 but the tribunal has determined that it is appropriate to consider the policy in the circumstances of this matter. 

16.Ms Beaton’s submission to the tribunal was that [Child 1], [Child 2] and [Child 3] were in her care 68% from 29 August 2017. Mr Beaton stated that he had 44% care of [Child 1], [Child 2] and [Child 3] and Ms Beaton had 56% care of [Child 1], [Child 2] and [Child 3] during this period. Mr Beaton provided evidence of extra days of care for the children. Ms Beaton stated that Mr Beaton did have extra care of the children but that this was not agreed to and ad hoc care which should not be taken into account in the determination.

17.The tribunal has determined that the care for Mr Beaton and Ms Beaton accords with the determination of care already used by the Department and that Mr Beaton percentage of care was 44% for [Child 2] and [Child 3] and Ms Beaton’s was 56% for [Child 2] and [Child 3] while Mr Beaton’s care percentage was 43% for [Child 1] and Ms Beaton’s care percentage was 57%.

18.As the tribunal has concluded that the care percentages were the same as Mr Beaton and Ms Beaton’s determined care percentages from 21 June 2017, paragraph 54F(1)(d) of the Act is not satisfied. In the circumstances the tribunal cannot revoke the existing determinations of percentages of care as there has been no change in the care percentages as determined by the Department.

DECISION

The Tribunal sets aside the decision under review and, in substitution, has refused to revoke the determination of care. This means that Mr Beaton’s percentage of care of 44% for [Child 2] and [Child 3] and Ms Beaton’s percentage of care of 56% for [Child 2] and [Child 3] and Mr Beaton’s care percentage of 43% for [Child 1] and Ms Beaton’s care percentage of 57% for [Child 1] remain in place.