Bopara and Essa (Child support)

[2020] AATA 2038

Bopara and Essa (Child support) [2020] AATA 2038 (6 May 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/MC018663

APPLICANT:  Mr Bopara

OTHER PARTIES:  Child Support Registrar

Ms Essa

TRIBUNAL:Member P Noonan

DECISION DATE:  06 May 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 were correctly revoked and new determinations made – 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

1. Mr Bopara and Ms Essa are the parents of the children [Child 1] and [Child 2]. Ms Essa is the parent liable to pay child support.

2. On 19 March 2019 the Department of Human Services – Child Support (the Department) received advice from the Family Assistance Office of a change in care with respect to both children to 100% to Mr Bopara from 25 January 2019. The Department made a decision on that date to record the care of the children as 100% to Mr Bopara.

3. On 2 October 2019 Ms Essa objected to the Department’s decision. On 9 March 2020 the Department partly allowed the objection and determined that the care of [Child 1] is 21% to Ms Essa and that the care of [Child 2] is 13% to Ms Essa with effect from 2 October 2019.

4. On 29 November 2019 Court Orders were delivered with respect to the care of the children.

5. On 18 March 2020 Mr Bopara lodged an application to the Administrative Appeals Tribunal (the Tribunal) for a review of the decision. The hearing took place on 6 May 2020. Mr Bopara and Ms Essa participated via conference telephone in the hearing and gave evidence on affirmation.

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] and [Child 2]?

1. Mr Bopara informed the Tribunal that he had appealed the decision of the Department because he held the view that some of the care attributed to Ms Essa has wrongly been characterised. He submitted that she undertook frequent trips during 2019 from her new home in [Town 1] primarily to attend court matters. Care of the children was secondary to this primary intent.

2. The Tribunal noted that Mr Bopara had previously agreed with the care records maintained by Ms Essa with respect to the care she undertook of the children in 2019. Mr Bopara disputed a night claimed by Ms Essa in March 2019 however confirmed that he had not maintained his own care records. The Tribunal notes that Ms Essa submitted detailed care records, together with flight bookings, evidencing either her travel to Melbourne, where the children reside, or the children’s travel to [Town 1] to stay with her. It is these records that the Department based their care findings upon and after examining these records the Tribunal is satisfied that the care of the children by Ms Essa has been correctly identified by the Department.

3. Care is usually determined on the basis of the overnight arrangements in place and while other factors can be taken into account the argument with respect to Ms Essa’s travel intentions has no weight in such considerations.

4. Section 50 of the Act requires a 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.

5. The Tribunal has decided that the care for Mr Bopara and Ms Essa should not be changed from the care percentages as determined by the Department. The Tribunal notes that the date of effect decision by the Department is not contested. As court orders came into effect from 29 November 2019 with respect to the care of the children this decision is only in effect for a very short period of time. Further, under the terms of a departure determination Ms Essa is assessed to pay an annual rate of child support to Mr Bopara during the period in question. Accordingly, there is little material effect for either parent from this decision.

6. Accordingly, the Tribunal decides that the care determination should reflect that Ms Essa has 21% care of [Child 1] and 13% care of [Child 2] with effect from 2 October 2019.

DECISION

The decision under review is affirmed.