Clemons and Clemons (Child support)

[2019] AATA 4875

Clemons and Clemons (Child support) [2019] AATA 4875 (30 August 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/BC016580

APPLICANT:  Ms Clemons

OTHER PARTIES:  Mr Clemons

Child Support Registrar

TRIBUNAL:Member P Jensen

DECISION DATE:  30 August 2019

DECISION:

The decision under review is set aside and, in substitution, Ms Clemons is recorded as providing 90% care and Mr Clemons is recorded as providing 10% care to [Child 1] with effect from 22 January 2019.

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

1. Ms Clemons and Mr Clemons are the parents of [Child 1]. A child support case was registered with the Department of Human Services – Child Support (“the CSA”) in 2015. From June 2017, Mr Clemons was recorded as providing 14% care to [Child 1]. Ms Clemons has always been recorded as providing the balance of care and, for convenience, I will predominantly refer to Mr Clemons’ care.

2. On 14 January 2019, Ms Clemons informed the CSA that there had been a change in care and Mr Clemons would be providing 62 nights of care per year. The CSA explained that if it decided to record the change in care that Ms Clemons had reported, the decision would not affect the rate of child support payable. That explanation was based on the fact that if a person was providing at least 52 nights of care per year, i.e. at least 14% care, but less than 128 nights of care per year, i.e. less than 35% care, and there was a change in care but they continued to provide at least 14% care but less than 35% care, then the change in care would not affect the rate of child support payable: section 55C of the Child Support (Assessment) Act 1989 (“the Act”).

3. On 22 January 2019, Mr Clemons informed the CSA that there had been a change in care and Mr Clemons would be providing 25 nights of care per year. The CSA noted:

   [Ms Clemons] advised [Mr Clemons] will have [Child 1] for the following periods:

   06.04.2019 - 14.04.2019 - 8 nights

   29.06.2019 - 09.07.2019 - 10 nights

   21.09.2019 - 28.09.2019 - 7 nights

   24.12.2019 - 06.01.2020 - 13 nights (outside 12 month period)

4. On 8 March 2019 the CSA decided to not record a change in care. Ms Clemons promptly objected to that decision. An objections officer disallowed her objection. She promptly applied to the Tribunal for further review. I heard the matter on 30 August 2019. Ms Clemons and Mr Clemons participated in the hearing by conference phone. Ms Clemons was assisted by her support worker, [name deleted].

5. In December 2017, Court Orders were made whereby, broadly speaking, Mr Clemons was to provide two nights of care every fortnight during school terms, one week of care during each of the three school term holidays, and two weeks of care during the Christmas school holidays.

6. At all relevant times, Ms Clemons has lived in [Town 1]. In November 2018, Mr Clemons moved from [Suburb 1] to [Town 2]. [Suburb 1] is about 90 kilometres from [Town 1]. [Town 2] is about 2,100 kilometres from [Town 1].

7. When Mr Clemons moved to [Town 2], he obviously could not provide fortnightly care. The parents sought to reach some other care arrangement, with limited success. In particular, Mr Clemons proposed that the handovers occur at [an] airport, and Ms Clemons was not agreeable to that proposal. As her solicitor noted, “I am aware that [Ms Clemons has a medical condition known as [details deleted] which is quite debilitating and means she is unable to operate a motor vehicle.”

8. When Ms Clemons contacted the CSA on 14 January 2019, she indicated, in effect, that she expected Mr Clemons to provide care during all of the term holidays and for three or so weeks during the Christmas holidays. When she contacted the CSA on 22 January 2019, she indicated, in effect, that she expected Mr Clemons’ future care to be confined to his holiday care pursuant to the Court orders. At the hearing, Mr Clemons conceded that in the absence of an agreement that he would provide additional care during school holidays, it had been likely that he would only provide that care. Over the following year, which would include four school holiday periods, it had been likely that Mr Clemons would provide 38 nights of care. 38 / 365 = 10.4%.

9. The Act relevantly provides that a change in care occurs if there is a change to the pattern of care that a parent “has had, or is likely to have” during the relevant care period: sections 50 and 54F of the Act. The evidence suggests that it was not until 22 January 2019 that Ms Clemons decided that Mr Clemons would only provide the care referred to above. That was the day on which it became likely that Mr Clemons would only provide 10.4% care, which is rounded down to 10% for child support purposes pursuant to section 54D of the Act.

DECISION

The decision under review is set aside and, in substitution, Ms Clemons is recorded as providing 90% care and Mr Clemons is recorded as providing 10% care to [Child 1] with effect from 22 January 2019.