Brechin and Brechin (Child support)

[2018] AATA 1224

Brechin and Brechin (Child support) [2018] AATA 1224 (28 March 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/BC013359

APPLICANT:  Mrs Brechin

OTHER PARTIES:  Child Support Registrar

Mr Brechin

TRIBUNAL:Member S Letch

DECISION DATE:  28 March 2018

DECISION:

The decision under review is affirmed.

CATCHWORDS
Child support - Percentages of care - No change to the likely pattern of care - 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

1. Mrs Brechin and Mr Brechin are the parents of[Child 1] and [Child 1].

2. Prior to 7 September 2017, care for both children had been recorded as 84% to Mrs Brechin and 16% to Mr Brechin. On 7 September 2017, Mrs Brechin contacted the Department of Human Services (the Department) to advise that Mr Brechin’s care and reduced and that they would not be in his care in the September/October holidays. On 21 September 2017, the department decided to record care as 89% to Mrs Brechin an 11% to Mr Brechin.

3. On 17 October 2017, Mr Brechin objected to the decision. On 17 January 2018, an objections officer allowed Mr Brechin’s objection. It was determined that there was no change to the pattern of care because only one care event had been missed; the existing recording of 86% to Mrs Brechin and 14% to Mr Brechin was restored.

4. On 24 January 2018, Mrs Brechin applied for review by the Tribunal. The Tribunal conducted a hearing on 26 March 2018. Mrs Brechin attended the hearing in person; Mr Brechin participated by conference telephone.

CONSIDERATION

1. Mrs Brechin told the Tribunal that, after Mr Brechin had care of the children in the June/July holidays, she had both children continuously until 12 December 2017, or a period of around 23 weeks. Mrs Brechin raised issues concerning Mr Brechin’s new partner having care when Mr Brechin was away, without her consent. She said that Mr Brechin would often make a holiday booking without consulting her, which she said was in breach of their parenting agreement. Mrs Brechin said the original agreement was that they would have equal care over the school holidays, or six weeks each (42 days); Mrs Brechin said Mr Brechin had extra nights which she had not previously agreed to.

2. Mr Brechin observed that, in June 2017, he had the girls for nine nights. He said that in the September school holidays, because of [Child 1’s] study commitments, it had been mutually agreed as a “one-off” that the girls would not stay with him. He said that he had not missed any other care events. Mr Brechin also observed that, in March 2017, he had an extra four nights in excess of the usual school holiday period, and he had extra nights over Easter. In August 2017, during a business trip to Brisbane, he had the girls for an additional four nights. He said over the recent Christmas period, he had 24 days of care. In summary, he calculated that he had more than 14% care (or more than 52 nights), even without the September school holiday period. 

3. 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).

4. If section 54G does not apply, section 54F provides that if the Department 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 Department 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 Department was so notified.

5. The Tribunal observes that the cases in this area urge a sensible and pragmatic approach and allow for tolerable deviations. In Re Nowicz and Secretary, Department of Family and Community Services [2001] 65 ALD 314, the Administrative Appeals Tribunal relevantly observed:

   Once established, it is appropriate that variation [to the percentage of care] only occur where there is to be a significant departure in an established pattern of care. This may occur, for example, when contact weekends are changed from fortnightly to monthly. It would not occur when the odd weekend contact visit was missed, or a child stayed for one particular weekend in addition to the contact weekend in a given fortnight during a particular assessment period.

6. Similarly, in Warne and Secretary, Department of Family, Community Services and Indigenous Affairs [2006] AATA 159 (24 February 2006), Deputy President Hack observed, at paragraph 26, that:

   In approaching the task of determining the pattern of care I have considered the matter with a broad brush. The Guide, rightly in my view, accepts that no adjustment to FTB is warranted for minor variations in care arrangements.

7. The Child Support Guide reflects, at 2.2.2, the “broad brush” approach adopted by the case law:

   What constitutes a change to the pattern of care will depend upon the individual circumstances of the case. For example, when considering a change that would result in a parent's care falling below 14%, after a pattern of at least 14% had been previously established, the Registrar will consider that the pattern of care has changed when:

   •the parent misses 3 care events in a row,

   •the parent misses 5 events of care out of 8, or

   •the parent misses 20% of the care over 12 months (when calculating 20% the Registrar will not include an isolated event that is clearly not a change in the pattern).

8. Here, Mr Brechin had not missed three care events in a row, nor had he missed five care events. In the Tribunal’s assessment, the missed care event (the September 2017 school holiday period) should be regarded as a “one-off” and be regarded as within acceptable tolerances.

9. The Tribunal is therefore satisfied that the pattern of care recorded as of 7 September 2017 (84% to Mrs Brechin and 16% to Mr Brechin) was an accurate reflection of the pattern of care. The Tribunal agrees with objections officer; the existing pattern of care should not have been revoked.

10. The decision under review will be affirmed.

DECISION

The decision under review is affirmed.