Chan and Gerges (Child support)

[2019] AATA 5948

Chan and Gerges (Child support) [2019] AATA 5948 (9 December 2019)

DIVISION:  Social Services & Child Support Division

REVIEW NUMBER:  2019/MC017031, 2019/MC017032

and 2019/MC017033

APPLICANT:  Ms Chan

OTHER PARTIES:  Child Support Registrar

Mr Gerges

TRIBUNAL:  Member A Ducrou

DECISION DATE:  09 December 2019

DECISION:

The decision under review made on 18 November 2015 is affirmed.

The decision under review made on 5 April 2019 is affirmed.

The tribunal sets aside the decision under review made by the objections officer on 24 July 2019 and, in substitution, decides that with effect from 3 April 2019 care percentages of 62% for Ms Chan and 38% for Mr Gerges are to be applied in the administrative assessment of child support for the children.

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.

REASONS FOR DECISION

BACKGROUND

1. Ms Chan and Mr Gerges are the separated parents of a son aged 6 and a daughter aged 9 (together referred to as the children). This review is about the percentages of care for Ms Chan and Mr Gerges that apply in relation to the administrative assessment of child support for the children.

2. From 17 June 2014 the Department of Human Services – Child Support (the Department) recorded that Ms Chan had a care percentage of 100% and that Mr Gerges had a care percentage of 0% for their son. From 1 November 2014 the Department recorded that Ms Chan had a care percentage of 79% and that Mr Gerges had a care percentage of 21% for their daughter.

3. Mr Gerges contacted the Department on 7 October 2015 about a change in care for the children. He advised that court orders made by consent between him and Ms Chan [in] August 2015 were implemented on 1 October 2015. In accordance with the court orders he had the children in his care for four nights per fortnight. The Department made contact with Ms Chan concerning the care of the children.

4. On 18 November 2015 a delegate of the Child Support Registrar (the Registrar) decided to make new percentage of care determinations for the children. From 2 October 2015 care percentages of 66% for Ms Chan and of 34% for Mr Gerges were recorded. The care percentages were applied in the administrative assessment of child support for the children with effect from 2 October 2015.

5. Mr Gerges contacted the Department on 15 March 2019 about a change in care for the children. Mr Gerges advised that Ms Chan went overseas due to a family emergency on 28 February 2019. She was expected to return on 5 April 2019. During that period he would provide 100% of the care for the children. Mr Gerges and Ms Chan provided documents to the Department.

6. On 5 April 2019 Ms Chan contacted the Department. She advised that the care for the children had changed and since her return from overseas the care arrangements between her and Mr Gerges that were in place prior to her travel had resumed.

7. On 5 April 2019 a delegate of the Registrar decided to make new percentage of care determinations for the children. From 28 February 2019 care percentages of 0% for Ms Chan and of 100% for Mr Gerges were recorded. The care percentages were applied in the administrative assessment of child support for the children with effect from 28 February 2019.

8. On 13 May 2019 a delegate of the Registrar decided to make new percentage of care determinations for the children. From 4 April 2019 care percentages of 65% for Ms Chan and of 35% for Mr Gerges were recorded. The care percentages were applied to the administrative assessment of child support for the children with effect from 4 April 2019.

9. On 15 May 2019 Ms Chan lodged objections to the decisions made on 18 November 2015, 5 April 2019 and on 13 May 2019. Mr Gerges responded to the objections. Ms Chan and Mr Gerges provided further information and documents to the Department.

10. On 24 July 2019 an objections officer of the Department decided to disallow Ms Chan’s objection to the decision made on 18 November 2015. The percentages of care of 66% for Ms Chan and 34% for Mr Gerges continued to apply to the administrative assessment of child support for the children with effect from 2 October 2015.

11. On 24 July 2019 an objections officer of the Department decided to disallow Ms Chan’s objection to the decision made on 5 April 2019. The percentages of care of 0% for Ms Chan and 100% for Mr Gerges continue to apply to the administrative assessment of child support for the children with effect from 28 February 2019.

12. On 24 July 2019 an objections officer of the Department decided to allow in part Ms Chan’s objection to the decision made on 13 May 2019. The objections officer determined that from 4 April 2019 Ms Chan and Mr Gerges had provided care for the children as stipulated in court orders made by consent between them on 30 January 2017 in the Family Court of Australia. The objections officer determined that percentages of care of 62% for Ms Chan and 38% for Mr Gerges applied in the administrative assessment of child support for the children with effect from 4 April 2019.

13. On 29 July 2019 Ms Chan applied by telephone to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the AAT) for review.

14. The tribunal conducted a hearing on 9 December 2019. Ms Chan and Mr Gerges attended the hearing in person. They gave oral evidence on affirmation and made oral submissions. The tribunal had before it documents (numbered 1 to 428) provided by the Registrar under subsection 37(1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) and documents (numbered 430 to 514) provided by the Registrar under section 38AA of the AAT Act. Copies of the documents were provided to Ms Chan and Mr Gerges. They confirmed receipt of the documents at the hearing. The tribunal made its decision on 9 December 2019.

ISSUES

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

2. The issues which arise in this case are:

   ·      Did the pattern of care for the children change; and

   ·      Do new care percentage determinations apply?

CONSIDERATION

Issue 1 – Did the pattern of care for the children change?

1. The legislation establishes a system for the assessment of the rate of child support payable in a child support case. In the majority of cases a statutory formula is applied. The percentage of care for a parent of the child affects the annual rate of child support assessed and payable. A parent’s percentage of care is determined under sections 49 or 50 of the Assessment Act. This requires consideration of the actual, or likely, pattern of care that the parent will have in relation to the child. Sections 49 and 50 require a new determination of a parent’s percentage of care for a child to be made in certain circumstances. Prior to making a new percentage of care determination under these provisions it is necessary to determine whether the existing care percentage determination can be revoked.

2. In specified situations, where a care arrangement applies in relation to a child but is not complied with the legislation provides for a percentage of care determination to be made for an interim period based on the extent of care that a person has, or is to have, under the care arrangement. “Care arrangement” is defined in subsection 5(1) of the Assessment Act and includes a parenting order within the meaning of section 64B of the Family Law Act 1975. It was common ground that, at all relevant times to these reviews, court orders made in the Family Court of Australia were in place in relation to the care of the children.

3. The term “pattern of care” is not defined in the legislation. In determining the pattern of care the decision-maker must consider the actual care of the child in the care period. The “care period” is the period which the decision-maker considers is appropriate having regard to all the circumstances of the case. The Department’s online policy guide, the Child Support Guide (the Guide), states that a care period is generally a 12-month period from the day on which the actual care of a child began or changed. The tribunal is not bound by policy. However, in Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 the Full Court of the Federal Court held that a tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. In this case the tribunal accepts that the policy in the Guide is consistent with the objects of the Assessment Act and that it assists the tribunal in making determinations under the legislation in relation to the care provided by the parties for the children.

4. The tribunal finds that Ms Chan and Mr Gerges are the separated parents of the children. Based on the Department’s records, the tribunal finds that from 17 June 2014 the Department recorded a care percentage of 100% for Ms Chan and a care percentage of 0% for Mr Gerges for their son. The tribunal finds that from 1 November 2014 the Department recorded a care percentage of 79% for Ms Chan and a care percentage of 21% for Mr Gerges for their daughter. The percentages of care were applied to the administrative assessment of child support for Ms Chan and Mr Gerges’ son and daughter, respectively from 17 June 2014 and from 1 November 2014.

The notification made on 7 October 2015 of a change in care

1. Based on the Department’s records and the evidence presented by Mr Gerges the tribunal finds that Mr Gerges contacted the Department on 7 October 2015. He advised that the care arrangements for the children had changed. Court orders for their care were made [in] August 2015 and were put into practice on 1 October 2015. From then he had care of the children for four nights per fortnight.

2. The Registrar’s documents included a copy of consent orders made between Ms Chan and Mr Gerges [in] August 2015. The orders were made in the Family Court of Australia. They were not sealed but were signed by the Senior Registrar. Ms Chan and Mr Gerges confirmed that the terms of the court orders were followed.

3. Ms Chan maintained that the extent of overnight care that Mr Gerges provided for the children in 2015 and 2016 did not equate to 34% of the time. This was the percentage of care that was recorded for Mr Gerges by the original decision maker. It applied to the administrative assessment of child support from 2 October 2015.

4. Ms Chan told the tribunal that she could not say what percentage of care should have been recorded for Mr Gerges. She did not have a yearly calendar to show when the children were in his care. Ms Chan noted that some of the clauses of the court orders provided for Mr Gerges to have care of the children for specified periods but that those periods did not extend to overnight care. Ms Chan told the tribunal that under the court orders the children spent [Religion 1] holidays with her and that she and Mr Gerges could agree to alter the times the children spent with them. Mr Gerges agreed that the children spent [Religion 1] holidays with Ms Chan. He told the tribunal that on the occasions when a [Religion 1] holiday fell during a period when he would otherwise have the children in his care, that time was made up for, as provided for under the court orders.

5. Based on the clear and consistent oral evidence of Ms Chan and Mr Gerges the tribunal was satisfied that when Mr Gerges notified the Department of the change in care on 7 October 2015 it was the expectation of Ms Chan and Mr Gerges that the care of the children would be in accordance with the terms of the court orders made [in] August 2015. The tribunal examined the terms of the court orders carefully. The tribunal was satisfied that commencing from 2 October 2015 the court orders provided for the children to spend four nights per fortnight with Mr Gerges. Commencing from 5 February 2016 the court orders provided for the children to spend five nights per fortnight with him. The court orders also made provision for the children to spend time with each parent on that parent’s religious holidays and at other times as agreed in writing between their parents. The tribunal accepted that there were occasions due to religious holidays when the children spent time with the other parent. However, the tribunal was satisfied based on the evidence before it that the parent who did not observe the religious holiday provided care for the children at another time in substitution for the care they would otherwise have provided.

6. Based on the available evidence the tribunal concluded that the appropriate care period was the 12-month period that commenced on 2 October 2015. The tribunal was satisfied that the evidence established that, consistently with the terms of the court orders made [in] August 2015, the pattern of care for the children that was likely in that care period was for Ms Chan to have them in her care for 66% of the time and for Mr Gerges to have them in his care for 34% of the time.

The notification made on 15 March 2019 of a change in care

1. Based on the Department’s records the tribunal finds that Mr Gerges contacted the Department on 15 March 2019. Mr Gerges advised that the care arrangements for the children had changed as Ms Chan travelled overseas due to a family emergency. Mr Gerges reported that the children were in his care for 100% of the time from 28 February 2019 to 4 April 2019.

2. The care percentages that were recorded when Mr Gerges made the care change notification were 66% for Ms Chan and 34% for Mr Gerges. However, the implementation of a care percentage determination made by Member Anderson of the AAT in a separate review (AAT review number 2019/MC106024) resulted in care percentages of 62% for Ms Chan and 38% for Mr Gerges being recorded and applied in the administrative assessment of child support for the children with effect from 30 October 2018.

3. Ms Chan and Mr Gerges confirmed that court orders were made by consent between them on 30 January 2017 in the Family Court of Australia. A signed and sealed copy of the court orders was included in the Department’s documents.

4. The tribunal examined the terms of the court orders carefully. The tribunal was satisfied that the court orders provided for the children to be in Mr Gerges’ care for five nights during school terms and for half of the school holidays. They provided for the children to be in Ms Chan’s care for the rest of the time. They stipulated that the children are to spend time with Ms Chan on [Religion 1] holidays and on other special occasions and for Mr Gerges, to make-up for the time that they would otherwise spend with him on those occasions at other times. Similarly, the court orders provide for the children to spend time with Mr Gerges on [Religion 2] holidays and on other special occasions and for Ms Chan to have make-up time with them if those occasions fell at times that they would otherwise spend with her. The orders permitted Ms Chan and Mr Gerges to travel overseas with the children during the periods when the children were living with them, subject to specified conditions being satisfied. In addition clauses 17 and 18 of the court orders permitted Ms Chan to travel to [Country 1] each calendar year for specified periods subject to specified conditions. The court orders also allowed for the children to spend time with either parent at other times, as may be agreed between Ms Chan and Mr Gerges.

5. The terms of the court orders are detailed and the tribunal observed that interpretation of their terms involves a deal of complexity due to the flexibility allowed for religious holidays, birthdays and overseas travel and make-up time. Ms Chan submitted that due to their complexity the court orders did not set out any discernible pattern of care for the children. Mr Gerges submitted that the court orders did set out a pattern of care for the children on the basis that under the court orders he provided care for the children for five nights per fortnight during school terms and for half of the school holidays.

6. From the descriptions that Ms Chan and Mr Gerges gave, the tribunal accepted that the care they provided for the children had not accorded with the terms of the court orders without exception. However, the tribunal was satisfied that their evidence was consistent with the terms of the court orders being generally followed.

7. Ms Chan and Mr Gerges agreed that Ms Chan travelled to [Country 1] without the children in 2019. It was common ground that Ms Chan departed Australia on 28 February 2019 and returned on 3 April 2019. During that time the children were not with her and they were with Mr Gerges. Ms Chan submitted that because the court orders permitted her to travel to [Country 1] and because they provided for care of the children to be varied as agreed between her and Mr Gerges, no variation in the court ordered care arrangements had taken place. Mr Gerges submitted that there was a change in care from 28 February 2019 due to Ms Chan’s unexpected absence from Australia without the children whereby he provided 100% of the care for the children during Ms Chan’s absence.

8. The Department’s policy regarding one-off blocks of 100% care is set out in section 2.2.2 of the Guide. The policy sets out the circumstances in which recognition will be given when a person unexpectedly and temporarily provides 100% of care for a child. Under the policy the decision-maker will determine care over a short period related to unexpected circumstances. The policy notes that the period of unexpected care will generally need to be at least four weeks in length in order for such a determination to be made. It provides for either carer to request a new care percentage determination when care returns to the normal pattern.

9. The tribunal was of the view that the clauses in the court orders that provided for Ms Chan to travel to [Country 1] contemplated and were based on the children accompanying her during the periods of travel. Based on the available evidence the tribunal finds that when Mr Gerges notified of the change in care on 15 March 2019 it was the expectation of Ms Chan and Mr Gerges that the children would be in Mr Gerges’ care for 100% of the time from 28 February 2019 while Ms Chan was overseas.

10. Having regard to the available evidence and taking into account the applicable government policy, set out at 2.2.2 of the Guide, the tribunal was satisfied that due to Ms Chan’s unexpected absence from Australia a change in the pattern of care for the children took place from 28 February 2019. The tribunal concluded that the appropriate care period was the period of 35 days that commenced on 28 February 2019.The tribunal was satisfied that the pattern of care for the children that was likely in that care period was for Mr Gerges to have the children in his care for 100% of the time and for Ms Chan to have no care.

The notification made on 5 April 2019 of a change in care      

1. Based on the Department’s records the tribunal finds that Ms Chan contacted the Department on 5 April 2019 and advised that she returned from overseas on 3 April 2019. According to the Department’s records, Ms Chan advised that from 3 April 2019 the previous arrangements for the care of the children had resumed. The Department recorded that Ms Chan reported that she provided care for the children for 66% of the time and that Mr Gerges provided care for them for 34% of the time.

2. Ms Chan submitted that the children returned to her care from when she arrived at her home on 3 April 2019. She arrived home before midnight. Ms Chan acknowledged that Mr Gerges had taken the children to her home, fed them, bathed them and stayed with them until she arrived. He left the moment she opened the door. Ms Chan submitted that she should be attributed with care of the children from that night as the children were in her home; they ate her food and used her electricity. The children were sleeping downstairs when she arrived. They were not in bed. Mr Gerges submitted that he should be attributed with the care of the children as he was the one who did everything for them until Ms Chan arrived home around midnight. Mr Gerges disputed Ms Chan’s assertion that she had provided food for the children on the basis that he bought their food.

1. The Department’s documents included a yearly planner provided by Ms Chan and calendars provided by Mr Gerges. Having regard to the descriptions of how and when the documents were compiled, the tribunal was not persuaded that they were of assistance in determining the expectations of Ms Chan and Mr Gerges concerning the likely pattern of care for the children at the point in time when Ms Chan made the notification of the change in care on 5 April 2019. It was agreed that the court orders dated 30 January 2017 were in place at the date of the notification.

2. The submissions that Ms Chan and Mr Gerges made concerning the interpretation of the court orders have already been set out above. In summary, Ms Chan submitted that she spent more time on [Religion 1] holidays and during periods of overseas travel with the children than was made-up for by Mr Gerges. Mr Gerges contested that the make-up time he had for the children did not correspond with the extent of time that they spent with Ms Chan on [Religion 1] holidays and travelling. Mr Gerges noted that [Religion 1] holidays did not always conflict with the periods when the children were with him. He submitted that to account for variations in [Religion 1], [Religion 2] and other special occasion dates and overseas travel, it was appropriate to apply a care period of 24 months commencing from 1 January. Mr Gerges did not identify the year when he contended the care period should commence.

3. The tribunal accepted that the dates when religious holidays, special occasions and overseas travel conflict with dates when Ms Chan and Mr Gerges would otherwise have the children in their care vary. However, as already discussed the tribunal was satisfied that the court orders dated 30 January 2017 provided for Mr Gerges and Ms Chan to make up for the time when they would otherwise have had the children in their care. The tribunal was satisfied that the evidence established that this was what occurred and that in accordance with the court orders, Ms Chan and Mr Gerges made arrangements to make-up for any care of the children in substitution for care that they would otherwise have missed. Based on the oral evidence of Ms Chan and Mr Gerges the tribunal was satisfied that when Ms Chan notified the Department of the change in care on 5 April 2019 it was the expectation of Ms Chan and Mr Gerges that the care of the children would be in accordance with the terms of the court orders made on 30 January 2017.

4. The tribunal was satisfied that the court orders provided for Mr Gerges to have the children in his care for 38% of the time and for Ms Chan to have them in her care for 62% of the time on the basis that the pattern of care provided for under the orders was for Mr Gerges to have the children for five nights per fortnight during school terms and for half of the school holidays. The pattern of care for Ms Chan was that the children were in her care for the rest of the time. On the basis that the court orders provided for make-up care in substitution for care that would otherwise have been missed as part of the pattern of care provided for under the court orders the tribunal did not accept that the appropriate care period was a care period of 24 months. The tribunal was satisfied that the appropriate care period was the 12-month care period that commenced on 3 April 2019. The tribunal accepted that the approach that the Department took in determining that the care period commenced on 4 April 2019 may have been reasonable in other circumstances. However, in this case given the complexity of the terms of the court orders and the extent of make-up care that the court orders allowed for, the tribunal was of the view that Ms Chan should be attributed with the care of the children from 3 April 2019 instead of from 4 April 2019.

5. The tribunal was satisfied based on the available evidence that the pattern of care for the children that was likely in the care period that commenced on 3 April 2019 was for Ms Chan to have a percentage of care for the children of 62% and for Mr Gerges to have a percentage of care for them of 38%.

Issue 2 – Do new care percentage determinations apply for the child?

1. The provisions relating to the revocation of a determination of a person’s percentage of care are set out in Subdivision C of Division 4 – Percentage of Care in Part 5 of the Assessment Act. Sections 54F and 54G of the Assessment Act are relevant and provide for the mandatory revocation of an existing care percentage determination in specified situations.

The notification made on 7 October 2015

1. The requirements for revoking the existing percentages of care for Ms Chan and Mr Gerges for the children that applied when the notification was made on 7 October 2015 were set out in paragraphs 54F(1)(a) to (e) of the Assessment Act as then in force. Each criterion must be satisfied in order for an existing care percentage determination to be revoked. (The provisions of section 54F have since been amended as a consequence of the Family Assistance and Child Support Legislation Amendment (Protecting Children) Act 2018).

2. The tribunal has found that there were existing determinations of Ms Chan’s and Mr Gerges’ percentages of care for the children as set out in paragraph 20 of these reasons. The existing determinations in respect of Ms Chan’s and Mr Gerges’ daughter were made under section 50 of the Assessment Act. The existing determinations in respect of their son were made under section 50 of the Assessment Act for Ms Chan and under section 49 for Mr Gerges. Based on the available evidence the tribunal was satisfied that sections 51 and 52 (as then in force) of the Assessment Act did not apply in relation to the existing determinations. The tribunal has found that the Registrar was notified on 7 October 2015 that the actual care of the children did not correspond with the percentages of care in the existing care determinations from 2 October 2015. The tribunal has found that for the care period that commenced on 2 October 2015 Ms Chan had the children in her care for 66% of the time and that Mr Gerges had them in his care for 34% of the time. This did not correspond with the existing percentages of care. The tribunal was satisfied that if new percentage of care determinations were made there would be a change in the cost percentages for Ms Chan and Mr Gerges for the children (the table at section 55C of the Assessment Act explains how to work out a person’s cost percentage). Based on the available evidence the tribunal was satisfied that section 54G of the Assessment Act did not apply. The tribunal, therefore, concluded that the requirements in paragraphs (a) to (e) of section 54F of the Assessment Act were satisfied.

3. Subsection 54F(2) sets out when the revocation of existing care percentage determinations takes effect. This is dependent on when the Department was notified of the care change. In accordance with subsection 54F(2) of the Assessment Act revocation of the existing determinations of percentages of care for Ms Chan and Mr Gerges takes effect at the end of 1 October 2015, being the end of the day before the Department was notified of the care change. Under section 50 of the Assessment Act the tribunal is required to make new determinations of the percentages of care for the children that correspond with the pattern of care that Ms Chan and Mr Gerges have had or are likely to have for the children. The tribunal is satisfied that in accordance with section 50 new determinations of percentages of care should be made and that Ms Chan’s percentage of care is 66% and Mr Gerges’ percentage of care is 34%. The date of effect of the new care percentage determinations is worked out in accordance with section 54B of the Assessment Act. In accordance with section 54B the new determinations applied from 2 October 2015, being the day that began immediately after the date when the previous determinations were revoked.

The notification made on 15 March 2019

1. The relevant provisions for revoking the existing percentages of care for Ms Chan and Mr Gerges for the children that applied when the notification was made on 15 March 2019 are set out in paragraphs 54G(1)(a) to (d) of the Assessment Act as currently in force. Each criterion must be satisfied in order for an existing care percentage determination to be revoked under section 54F.

2. The tribunal has found that there were existing determinations of Ms Chan’s and Mr Gerges’ percentages of care for the children when the notification of the change in care was made on 15 March 2019. The existing care percentage determinations resulted from the implementation of the determination in AAT review number 2019/MC106024 and were 62% for Ms Chan and 38% for Mr Gerges. They applied in the administrative assessment of child support for the children with effect from 30 October 2018. The existing determinations were made under section 50 of the Assessment Act. The tribunal has found that the Registrar was notified on 15 March 2019 that the care of the children did not correspond with the percentages of care in the existing care determinations from 28 February 2019. The tribunal has found that for the care period that commenced on 28 February 2019 Mr Gerges had the children in his care for 100% of the time and that Ms Chan did not have them in her care. The tribunal was satisfied that Mr Gerges notified the Department that Ms Chan did not have care of the children from 28 February 2019 within a period that was reasonable in the circumstances. The tribunal, therefore, concluded that the requirements in paragraphs (a) to (d) of section 54G of the Assessment Act were satisfied.

3. As the tribunal has found that all of the criteria set out in paragraphs 54G(1)(a) to (d) were satisfied the tribunal must revoke the existing determinations of the percentages of care in accordance with section 54G. Subsection 54F(2) of the Assessment Act sets out when the revocation of the existing determinations of care percentages takes effect. In accordance with paragraph 54G(2)(b) of the Assessment Act revocation of the existing determinations of percentages of care takes effect at the end of 27 February 2019, being the end of the day before the day when Ms Chan ceased her previously established pattern of care.

4. Under section 49 of the Assessment Act, if the tribunal revokes an existing care percentage determination and is satisfied that a parent has, or is likely to have, no pattern of care for a child during a care period the tribunal must attribute a percentage of care for the care period of 0% unless section 51 applies. Based on the evidence before it the tribunal was satisfied that section 51 did not apply. Therefore, in accordance with section 49 of the Assessment Act the tribunal is required to make a new determination of the percentage of care for the children of 0% for Ms Chan for the care period that commenced on 28 February 2019. Under section 50 of the Assessment Act the tribunal is required to make a new determination of the percentage of care for the children of 100% for Mr Gerges for that care period. The date of effect of the new care percentage determinations is worked out in accordance with subsection 54B of the Assessment Act. Under subparagraph 54B(2)(c)(ii) the new determinations applied from 28 February 2019, being the day that began immediately after the date when the previous determination was revoked.

The notification made on 5 April 2019

1. The existing determinations of Ms Chan’s and Mr Gerges’ percentages of care for the children when the notification of the change in care was made on 5 April 2019 were 0% for Ms Chan and 100% for Mr Gerges. The tribunal was satisfied that the evidence established that the requirements for the revocation of the existing percentages of care under section 54F of the Assessment Act were met. The tribunal determined to revoke the existing determinations of the percentages of care for the children in accordance with section 54F with effect from the end of 2 April 2019 which was the end of the day before the change of care day. For the reasons already discussed the tribunal was satisfied that the change of care day was on 3 April 2019.

2. The tribunal decided to make new percentage of care determinations under section 50 of the Assessment Act to correspond with the pattern of care that Ms Chan and Mr Gerges have had, or are likely to have, for the children for the care period commencing on 3 April 2019. Ms Chan’s percentage of care is 62% and Mr Gerges’ percentage of care is 38%. In accordance with section 54B the new determinations applied from 3 April 2019, being the day that began immediately after the date when the previous determinations were revoked.

DECISION

The decision under review made on 18 November 2015 is affirmed.

The decision under review made on 5 April 2019 is affirmed.

The tribunal sets aside the decision under review made by the objections officer on 24 July 2019 and, in substitution, decides that with effect from 3 April 2019 care percentages of 62% for Ms Chan and 38% for Mr Gerges are to be applied in the administrative assessment of child support for the children.