Capron and Child Support Registrar (Child support)

[2022] AATA 739

Capron and Child Support Registrar (Child support) [2022] AATA 739 (15 February 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC022596

APPLICANT:  Mr Capron

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member M Manetta

DECISION DATE:  15 February 2022

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that Mr Capron is to be recorded as having 100% care of [Child 1] from 29 January 2020 to 28 August 2020.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no change to the likely pattern – 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. Prior to late January 2020, Mr Capron shared the care of his son, [Child 1], with [Child 1]’s mother on a 50/50 basis pursuant to a care arrangement. Just before his birthday [in] January 2020, [Child 1] decided that he would prefer to stay with his father full time for what would be his forthcoming HSC year. Mr Capron notified a change of care which was accepted by the Child Support Agency.

2. That arrangement remained in place save for three occasions in the ensuing months, namely 5–13 April 2020, 8–28 June 2020, and 16–23 August 2020, during which occasions [Child 1] stayed with his mother on a full-time basis.

3. [Child 1]’s mother notified a change of care claiming full-time care of [Child 1] from 10 June 2020. The notification was accepted and on 8 July 2020 a fresh care determination was made recording 100% care to [Child 1]’s mother. On 30 August 2020, Mr Capron objected, and, on 1 October 2020, his objection was disallowed. Mr Capron appealed to this Tribunal and a review hearing was held on 15 February 2021 at which Mr Capron gave evidence. [Child 1]’s mother declined the opportunity to attend the hearing.

4. The issue which arises in this case is whether there was a change in the pattern of care after 6 June 2020.

CONSIDERATION

1. In deciding whether a fresh care percentage determination is appropriate, the Agency (and this Tribunal) must be satisfied not simply that there has been a departure from the existing care arrangement but that there has been a change in the pattern of care. In other words, there must be a new pattern, that is to say a change of routine, discernible over a given period into the future.

2. The three occasions when [Child 1] stayed with his mother were occasioned by an ad hoc and temporary need of Mr Capron to attend to his dying father in Sydney and participate in the management of his father’s family farm. In the opinion of the Tribunal, they are properly to be characterised as temporary disruptions in the existing care arrangement brought about by extraordinary circumstances. They do not constitute a new pattern of care. They do not constitute a pattern at all.

3. It follows that, in the Tribunal’s opinion, there was no change in the pattern of care in April, June or August 2020 and that the decision under review must be set aside.    

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that Mr Capron is to be recorded as having 100% care of [Child 1] from 29 January 2020 to 28 August 2020.