Burns and Child Support Registrar (Child support)

[2019] AATA 2538

Burns and Child Support Registrar (Child support) [2019] AATA 2538 (17 June 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/BC013958

APPLICANT:  Mr Burns

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member S Letch

DECISION DATE:  17 June 2019

DECISION:

The decision under review is varied so that care for [Child 1] and [Child 2] is to be recorded as 58% to [Ms A] and 42% to Mr Burns from 21 July 2017.

CATCHWORDS

CHILD SUPPORT – percentage of care – what was the likely pattern of care from the start of the administrative assessment – 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 Burns and [Ms A] are the parents of [Child 1] and [Child 2]. On 21 July 2017, [Ms A] made an application for a child support case in which she advised she had 65% care of the children, and Mr Burns 35% care.

2. On 24 October 2017, the Child Support Agency (CSA) decided to reflect care as advised by [Ms A] from 20 April 2017, effective from 21 July 2017. The tribunal observes that the CSA was required to consider the pattern, or likely pattern of care, as at 21 July 2017 (the date of the application for a child support assessment), and not any earlier date.

3. On 28 November 2017, Mr Burns objected to the decision. On 6 April 2018, an objections officer disallowed his objection. Mr Burns applied to the Tribunal for review on 30 April 2018.

4. [Ms A] was invited to be a party to the application; the Tribunal received no contact from her. The hearing proceeded by conference telephone in her absence. Following the hearing, Mr Burns was given the opportunity to supply further evidence in support of his submission he had the children for six nights a fortnight (not five); the Tribunal received no further contact from Mr Burns.

CONSIDERATION

1. Mr Burns told the Tribunal the original assessment was based on him having Saturday, Sunday and Monday in week one, and Sunday and Monday night in week two. However, he said in week one, he also had Friday nights. There was a change to the arrangements, but that occurred much later (around the end of 2018). The Tribunal observes this review is confined to considering a “point in time” (namely, 21 July 2017); later changes in care are the subject of separate notifications, and separate decisions.

2. As observed above, the Tribunal invited Mr Burns to supply further evidence – he indicated he may have text or email trails which would support his case. The Tribunal received no further evidence from Mr Burns. As a general observation, the Tribunal observes gathering probative and compelling evidence supporting care arrangements can be problematic.

3. The Tribunal did not have the benefit of hearing from [Ms A]; she did not apply to be a party to these proceedings. However, the Tribunal assessed Mr Burns as a credible witness. He has consistently objected to the original decision about recorded care.

4. On the evidence available to it, the Tribunal accepts Mr Burns’ evidence that the pattern of care involved him having the children six nights per fortnight (or 42%, rounded down) from 21 July 2017.

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

DECISION

The decision under review is varied so that care for [Child 1] and [Child 2] is to be recorded as 58% to [Ms A] and 42% to Mr Burns from 21 July 2017.