Chen and Lin (Child support)

[2019] AATA 5127

Chen and Lin (Child support) [2019] AATA 5127 (26 September 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/MC016983

APPLICANT:  Mr Chen

OTHER PARTIES:  Child Support Registrar

Ms Lin

TRIBUNAL:Member J Longo

DECISION DATE:  26 September 2019

DECISION:

The decision under review is affirmed.

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 – date on which the care actually changed - decision under review affirmed

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 Chen and Ms Lin are the parents of [Child 1] and [Child 2].

2. On 18 April 2018, the Department of Human Services – Child Support (the Department) determined that Ms Lin had a percentage of care of 56% for [Child 1] and [Child 2] and Mr Chen had a percentage of care of 44% from 26 February 2018.

3. On 19 April 2018, Ms Lin lodged an objection to the above care decision of the Department, stating that the care change only occurred from 21 March 2018. On 22 June 2018, the Department allowed the objection and determined that Ms Lin had a percentage of care of 56% for [Child 1] and [Child 2] and Mr Chen had a percentage of care of 44% from 21 March 2018

4. On 22 July 2019, Mr Chen lodged an application to the Administrative Appeals Tribunal (the tribunal) for a review of the decision. The hearing took place on 26 September 2019. Mr Chen and Ms Lin spoke to the tribunal via conference telephone and gave sworn evidence. In making its decision the tribunal took into consideration the documents provided by the Department (365 pages), which were sent to both parties prior to the hearing. Mr Chen provided additional information after the hearing.

CONSIDERATION

1. The law that applies in this case is the Child Support (Assessment) Act 1989 (the Act).

What is the care of [Child 1] and [Child 2]?

1. It is not in dispute that from 3 August 2017 the Department determined that the care of [Child 1] and [Child 2] was Ms Lin having 60% of the care and Mr Chen having 40% of the care of [Child 1] and [Child 2]. It is also not in dispute that Mr Chen contacted the Department on 15 March 2018 to advise that the care of [Child 1] and [Child 2] had changed.

2. Mr Chen confirmed that there were court orders which confirmed new care arrangements for the children. As part of these orders, Mr Chen stated that they allowed for extra care. Mr Chen stated that from 21 March 2018 he had additional care of the children as indicated in the calendar information provided to the Department. According to his calculations, he had 47% (170 nights) care of [Child 1] and [Child 2] during the period from 21 March 2018. This level of care excludes the additional days he had due to Ms Lin being overseas.

3. Mr Chen stated that due to circumstances at the time, losing his job and the stress of court proceedings, which required considerable time and effort, he didn’t check that the care percentage was correct. It was not until November 2018 that he realised that the care had been incorrectly recorded. This is why he made the late request for review to the tribunal.

4. Ms Lin stated that she disagreed with the dates Mr Chen said he had the care of [Child 1] and [Child 2] in the calendar provided and has indicated 17 nights where the children were in her care and not Mr Chen’s care as stated in the calendar. Some of the dates specified in the calendar were dates when she was overseas and not the usual pattern of care. Ms Lin stated that she knows the children were not with Mr Chen on these dates because she kept her own calendar and they were in her care on these dates.

10.Section 50 of the Act requires a determination of a percentage of care to be made where the tribunal is satisfied either that the person has had, or is likely to have, a pattern of care during a care period as considered to be appropriate having regard to all the circumstances. In Mr Chen’s application, he stated that Ms Lin’s care of [Child 1] and [Child 2] was 53% and that he had a percentage of care of 47% from 21 March 2018. The Department made a decision to determine the care percentage on 22 June 2018, with effect from 21 March 2018, as 56% for Ms Lin and 44% for Mr Chen.

11.The tribunal is required to consider what care Mr Chen and Ms Lin intended for [Child 1] and [Child 2] at the time of the application. Mr Chen’s application specified that the care of [Child 1] and [Child 2] was 56% for Ms Lin and 44% for Mr Chen, initially from 26 February 2018. Mr Chen subsequently lodged a request for review with the tribunal on 22 July 2019 to state that the care percentage was incorrect. He states that he realised it was incorrect in November 2018. Ms Lin states his calculation includes dates the children were not in his care. The tribunal cannot be satisfied, on the balance of probabilities, that the care of [Child 1] and [Child 2] from 21 March 2018 was greater than 56% for Ms Lin and 44% for Mr Chen, given that Mr Chen and Ms Lin both agreed at the time that this was the pattern of care they were likely to have during the care period commencing from 21 March 2018. Accordingly, the tribunal is not satisfied that the care as determined at the time was incorrect.

12.The tribunal notes that even if a favourable decision was made that the care percentage was higher than determined on 22 June 2018, the date of effect of any such decision would require the consideration of circumstances which prevented Mr Chen from requesting a review of the decision within 28 days of the Department’s decision and the tribunal being satisfied that there were special circumstances which prevented Mr Chen from applying for review earlier. The tribunal’s view is that there were no special circumstances which prevented Mr Chen from applying for a review of the decision within 28 days of the Department’s decision and therefore, even if a favourable decision were to be made, such a decision could not be back dated to 21 March 2018.

DECISION

The decision under review is affirmed.