Cable and White (Child support)

[2020] AATA 5967

Cable and White (Child support) [2020] AATA 5967 (25 November 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2020/SC020070 and 2020/SC020144 

APPLICANT:  Mr Cable

OTHER PARTIES:  Child Support Registrar

Ms White

TRIBUNAL:Member K Dordevic

DECISIONS DATE:  25 November 2020

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determinations revoked and new determinations made - 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.

1. The decisions of the Administrative Appeals Tribunal (the tribunal) and the reasons for the decision were delivered orally on 25 November 2020.

2. The following paragraphs are the reasons for the tribunal’s decisions.

Reasons for decisions

1. Mr Cable and Ms White are the parents of two children. This application concerns the children’s care arrangements from July 2019. 

2. There has been a child support assessment in place with Services Australia (formerly Department of Human Services) – Child Support since 28 February 2013. The care record reflected that the mother had 100% care of the children from 23 June 2019.

3. On 16 September 2019 the father advised that he had commenced having care of the children in line with a parenting plan, that is that he had 28% care and the mother 72% care, from 21 July 2019.

4. On 11 November 2019 the father’s care change application was accepted, with the care record to reflect that the father had 28% care and the mother 72% care from 2 July 2019.

5. On 15 April 2020 the father objected to the decision. The objection was partly allowed on 28 September 2020, where the care record was amended to reflect that there was a change to the children’s care arrangements on 2 August 2019, whereby the father had 28% care and the mother 72% care, with the date of effect being 16 September 2019.

6. The father sought review of two decisions by the Social Services and Child Support Division of the tribunal on 29 October 2020. The first was the care percentage decision and the second was the date of effect of the care percentage decision.

7. The matters were heard on 25 November 2020. The mother and father appeared by conference telephone. The Child Support Registrar elected not to attend the hearing. In reaching its decision the tribunal considered the sworn evidence of the father and mother as well as the documentation provided by Child Support (folios 1 to 286 and 1 to 292).

ISSUES

10.  The statutory provisions relevant to this review are outlined in the Child Support (Assessment) Act 1989 (the Act).

11.  The tribunal must determine the parents’ respective care percentages from July 2019 and, if there was a change to the care percentages, the date of effect of the change.

CONSIDERATION

12.  Relevant to this matter, section 50 of the Act requires the primary decision-maker to consider the actual or likely pattern of care, by reference to a care period considered appropriate, having regard to all the circumstances. The primary decision-maker’s task is to determine the pattern of care based on actual care at the time of notification and the likely care thereafter.

13.  The tribunal’s task on review is the same. There is a clear temporal element in reviewing care percentage decisions. At first instance, and on review, the questions are the same: What was the pattern of care up until the date of notification? And, what was likely to occur thereafter? If there is a divergence from what was considered likely to happen, a parent can notify the Department and a new care determination can be made.

14.  The Child Support records indicate that the only matter in contention was the date of the care change. The father asserted that the change took place on 21 July 2019; the mother, that the change took place on 2 August 2019.

15.  The father did not provide any evidence in support of his initial assertion as to the date of the care change to Child Support or this tribunal. The mother provided an email sent by the father at 7:58 am on 31 July 2019, with the subject line “Happy to have [Child 1] this Weekend” and the text stating “If you would like [Child 1] to spend time with me as scheduled this weekend I might be able to accommodate that”. The tribunal finds that the first Friday after 31 July 2019 is 2 August 2019.

16.  The father’s position regarding the date care changed was somewhat different at hearing than his submissions to Child Support. He does not dispute that sometime in June 2019 he advised the mother that he could no longer afford to care for the children and would no longer abide by the parenting plan in place. After some conflicting evidence about when care resumed, he confirmed that the first weekend that [Child 1] returned to his care was the weekend beginning 2 August 2019. However, his position is that even if he had advised the mother that he wished to abide by the parenting plan from 2 July 2019, he would have had no care under the terms of that plan until late July 2019. Therefore, he submits that in actual fact the terms of the parenting plan were adhered to since 2 July 2019.

17.  After having the benefit of the documentary evidence before it and the parties’ testimony at hearing, and placing significant weight on the email dated 31 July 2019, the tribunal is satisfied that the father resumed his care of the children consistent with the parenting plan in place from 2 August 2019 and not before. The tribunal is also satisfied that the appropriate care period is from 2 August 2019 and not 2 July 2019, as the father contends.

18.  Paragraph 54F(3)(b) of the Act states, in situations where the change was notified outside 28 days of the care change (as is the case in this matter, as the father notified on 16 September 2019), the date of revocation is different, dependent on whether the responsible person’s care has increased or decreased. Thus, the tribunal revokes the existing care percentages and replaces it with new care percentages of 28% to the father from 16 September 2019 and 72% to the mother from 2 August 2019.

DECISIONS

The tribunal sets aside the decisions under review and, in substitution, decides that:

·Mr Cable’s care percentage of 0% is revoked and replaced with a new care percentage of 28% from 16 September 2019; and

Ms White’s care percentage of 100% is revoked and replaced with a new care percentage of 72% from 2 August 2019.