Clements and Vaughan (Child support)

[2019] AATA 4890

Clements and Vaughan (Child support) [2019] AATA 4890 (13 August 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2019/MC016354 & 2019/MC016370

APPLICANT:  Ms Clements

OTHER PARTIES:  Child Support Registrar

Mr Vaughan

TRIBUNAL:Member J Thomson, Member K Buxton

DECISION DATE:  13 August 2019

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – no change to the likely pattern of care – 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. Ms Clements and Mr Vaughan are the parents of [a child] (born 2000), [another child] (born 2001), [a child] and [another child] (both born 2004), (the children).

2. Ms Clements seeks review of an objection decision made by the Department of Human Services – Child Support (the Department) on 21 November 2018. This decision allowed an objection by Mr Vaughan to an earlier Department decision dated 28 April 2018, setting aside that decision and deciding that Ms Clements’ notification on 9 April 2018 of a change in care for the children on 30 January 2017 to reflect Ms Clements’ as having 79% care and Mr Vaughan as having 21% care of the children from 30 January 2017 with effect in the assessment from 9 April 2018 should be refused.

3. The Tribunal heard the matter on 13 August 2019. Both parents attended the hearing via conference telephone and gave affirmed evidence. The Tribunal had before it documentation provided by the Department, admitted into evidence and marked Exhibit 1, and documentation provided by Ms Clements on 24 May 2019, admitted into evidence and marked Exhibit A.

CONSIDERATION

1. In reaching its decision, the Tribunal has considered the affirmed evidence of both parents and the documentation provided by the Department contained in Exhibit 1.

2. The law relevant to care percentage determinations is found in the Child Support (Assessment) Act 1989, (the Act). Sections 49 and 50 of the Act provide for new care decisions to be made. Section 49 applies, relevantly if the parent “has had, or is likely to have, no 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”. Section 50 applies, relevantly, if the parent “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”.

3. Both sections reflect the idea that the Department makes point-in-time care decisions on the basis of what has happened up until the change in care is considered and what is likely to happen thereafter. Of course, what is likely to happen may not eventuate and when such a divergence occurs, a parent can notify the Department and a new care determination can be made. However, the legislative test at first instance and on review remains the same: what had happened until the date of the notification and what was likely to happen thereafter?

4. Prior to her notification of a change in care on 9 April 2018, the care percentages being assessed by the Department were 65% to Ms Clements and 35% to Mr Vaughan

5. Both parties acknowledged during the hearing that the Family Court of Australia had made parenting orders in 2011, pursuant to which, Mr Vaughan was accorded four nights of care per fortnight and half of the gazetted school holidays. It was common ground at the hearing that the parents had been following the court ordered pattern of care, but had modified the pattern of care over time. The general pattern of care at least up until 8 of June 2016 was that Mr Vaughan had fortnightly care on Friday, Saturday and Sunday nights and an extra night’s care on Thursday in the other week, effectively, four nights’ care per fortnight plus half of the school holidays. An email from Mr Vaughan dated 8 June 2016 proposed that, due to the impact of the travel burden on the parents and other commitments outside school on the Thursday night Mr Vaughan was having care, that Thursday night care be dispensed with. That email also proposed “some time in return” with the children. Mr Vaughan stated that the email was not responded to by Ms Clements. Mr Vaughan asserted in evidence that this proposal was not adopted in practice by the parents, and instead of having care each alternate Thursday, that night’s care was transferred to the following Friday night, when he would collect the children from their respective extra-curricular activities on that Friday night and return them to Ms Clements’ care the following Saturday morning.

6. Ms Clements did not accept that this was the case, but did not dispute that Mr Vaughan continued to have three nights care per fortnight on Friday, Saturday and Sunday nights, and half of the school holidays. She said Mr Vaughan’s pattern of care was not consistently in accordance with the court ordered pattern of care and that, over all, he was having a pattern of care that reflected a total of three nights of care of each child spread over Thursday to Sunday nights, i.e. that Mr Vaughan was not having care of all the children at the same time. However, Ms Clements acknowledged that Mr Vaughan did have additional nights of care during the course of the year, both in accordance with the court orders, and on an ad hoc basis. Mr Vaughan accepted that he did not have care of all of the children at the same time, but consistently stated that the care he was having accorded with the terms of the court orders.

7. The Tribunal finds that the evidence, on balance, is that Mr Vaughan continued to have care of the children that approximated with the level of care set out in the court orders. The levels of care recorded by the Department prior to Ms Clements’ notification on 9 April 2018 reflected the court ordered care of 65% to Ms Clements and 35% to Mr Vaughan. The Tribunal finds that the evidence of the parties at hearing, as set out above is generally reflective of that care pattern. Consequently, the Tribunal has reached the same conclusion as the objections officer in the decision under review, that from 30 January 2017 no change in care occurred for the children. Therefore, the decision under review is affirmed.

8. As the Tribunal has affirmed the decision under review, it is not necessary to consider the “special circumstances” issues raised during the hearing.

DECISION

The decision under review is affirmed.