Cheesman and Bomer (Child support)

[2021] AATA 4789

Cheesman and Bomer (Child support) [2021] AATA 4789 (27 October 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC022179

APPLICANT:  Mr Cheesman

OTHER PARTIES:  Child Support Registrar

Ms Bomer

TRIBUNAL:Member S De Bono

DECISION DATE:  27 October 2021

DECISION:

The decision under review is affirmed. (This means the application for review is unsuccessful.)

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – disputed care percentages – decision under review affirmed

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted 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 Cheesman and Ms Bomer are the separated parents of [Child 1] (11 years old), [Child 2] (9) and [Child 3] (7). On 30 March 2021 Ms Bomer applied for an administrative assessment of child support.

2. On 4 May 2021 an officer from Services Australia – Child Support (Child Support) made the decision to accept Ms Bomer’s application and registered a child support assessment as 328 nights to Ms Bomer (90% care) and 37 nights to Mr Cheesman (10% care) from 30 March 2021. Mr Cheesman is the paying parent.

3. On 21 May 2021 Mr Cheesman lodged an objection with Child Support as he disagreed with the assessment that his care percentage is 10%. On 4 August 2021 an objections officer made the decision to disallow Mr Cheesman’s objection and the care percentage determination remained the same.

4. On 31 August 2021 Mr Cheesman applied to the Administrative Appeals Tribunal (the tribunal) for an independent review of this decision. On 27 October 2021 Mr Cheesman and Ms Bomer gave evidence under affirmation via conference telephone to the tribunal. The tribunal had before it a bundle of documents (100 pages – referred to as the hearing papers). Ms Bomer also provided a copy of the parenting orders dated 27 September 2021.

LAW AND CONSIDERATION

1. The law relevant to this review is found in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act). Also relevant is the Family Assistance Guide (the Guide) which provides Child Support policy and guidelines.

2. At the time of the application for the registration of child support there was no written care agreement between Mr Cheesman and Ms Bomer. Child Support made the determination on the percentage of actual care that each parent provides in accordance with section 50 of the Act:

   50  Determination of percentage of care—responsible person has had etc. a pattern of care for a child

   (1)  This section applies if:

   (a)  …

   (i)  an application is made under section 25 or 25A for a parent to be assessed in respect of the costs of the child;

   …

   and the Registrar is satisfied that a responsible person for the child has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances; …

   (2)  The Registrar must determine the responsible person’s percentage of care for the child during the care period.

   (3)  The percentage determined under subsection (2) must be a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person has had, or is likely to have, during the care period.

3. Mr Cheesman said he did not agree that the percentage of care determined by Child Support for him was correct. Ms Bomer moved out of the family home on 9 March 2021 and she said she had 100% care of the children at that time. Mr Cheesman said when he and Ms Bomer separated there was no fixed agreement about who would have care of the girls, whether this care would be shared and how often the girls would stay with each parent.

4. Mr Cheesman said he had all three girls from 1 April 2021 to 7 April 2021 and then he was meant to be taking all three girls away for a holiday [but] it transpired that he only took [Child 1] and [Child 2], he said [Child 3] stayed with Ms Bomer during this time; [Child 1] and [Child 2] remained with Mr Cheesman until 20 April 2021.

5. Mr Cheesman said after this the girls stayed with him at various times, on Friday 30 April 2021 [Child 2] and [Child 3] stayed with Mr Cheesman but [Child 1] did not stay. [Child 2] left the next day and [Child 3] stayed until Monday 3 May 2021. On 3 June 2021 Mr Cheesman had [Child 3] and [Child 2] from Thursday 3 June 2021 to 6 June 2021. Mr Cheesman provided further dates that either one or two of the girls were in his care, Ms Bomer agreed with the dates provided by him.

6. The tribunal explained to Mr Cheesman that the care period is period determined by the Registrar and Child Support made the decision about Mr Cheesman’s care from the period of the initial application taking into consideration the actual care from the date of the application for the assessment on 30 March 2021 to 4 May 2021 (the date of the original decision) on the basis of the actual care that Mr Cheesman and Ms Bomer had during this period. The tribunal explained that the current care determination applies until there is a request for a new care determination.

7. The tribunal explained that parenting orders have been made and that Mr Cheesman should apply for a new care determination on the basis of these orders, Mr Cheesman said both himself and Ms Bomer have been complying with these orders and he now has regular care of the girls.  

DECISION

The decision under review is affirmed. (This means the application for review is unsuccessful.)