Colquhoun and Colquhoun (Child support)

[2020] AATA 6166

Colquhoun and Colquhoun (Child support) [2020] AATA 6166 (5 October 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/MC018898 & 2020/MC/019515 & MC018825

APPLICANT:  Mrs Colquhoun

OTHER PARTIES:  Child Support Registrar

Mr Colquhoun

TRIBUNAL:Member P Sperling

DECISION DATE:  5 October 2020

DECISION:

The tribunal affirms all of the decisions under review.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there were changes to the likely pattern of care – multiple changes to pattern - 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 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. Mrs Colquhoun and Mr Colquhoun are the parents of [Child 1] (the child) who is the child for whom care is under dispute in this matter. Mrs Colquhoun is the parent liable to pay child support.

2. From 24 October 2018, the Department of Human Services (now Services Australia) – Child Support (the Department) had determined that Mr Colquhoun had 100% care of the child and Mrs Colquhoun had 0% care of the child.

3. This review relates to three separate care changes proposed by one or other of the parents. The proposed care changes were notified to have taken place on 8 December 2018, 24 March 2019 and 26 June 2019 respectively.[1]

   [1] The tribunal notes that objections to the original decisions made in respect of all three proposed care changes were lodged with the Department by Mrs Colquhoun on 10 October 2019.

4. On 21 January 2019 Mr Colquhoun notified the Department that the care of the child had changed such that, from 8 December 2018 Mrs Colquhoun had care of the child on one night per fortnight (proposed care change 1). On 21 February 2019 the Department accepted proposed care change 1 and made a decision to change the record of care to 93% for Mr Colquhoun and 7% for Mrs Colquhoun from 8 December 2019. Mrs Colquhoun disagreed with the decision and lodged an objection on 10 October 2019. On 11 March 2020, an objections officer disallowed Mrs Colquhoun’s objection and so the existing care determination of 93% for Mr Colquhoun and 7% for Mrs Colquhoun was retained. On 14 April 2020 Mrs Colquhoun lodged an application to the Administrative Appeals Tribunal (the tribunal) for a review of this decision.

5. Meanwhile, on 3 April 2019 Mrs Colquhoun notified the Department that the care of the child had changed such that, from 24 March 2019 she had 100% care of the child (proposed care change 2). On 25 June 2019 the Department rejected proposed care change 2 and so the existing care determination of 93% for Mr Colquhoun and 7% for Mrs Colquhoun from 8 December 2019 was retained. Mrs Colquhoun disagreed with the decision and lodged an objection on 10 October 2019. On 16 March 2020, an objections officer disallowed Mrs Colquhoun’s objection and so the existing care determination was again retained. On 23 July 2020 Mrs Colquhoun lodged an application to the tribunal for a review of this decision.

6. In addition, on 27 June 2019 Mrs Colquhoun notified the Department that the care of the child had changed such that, from 26 June 2019 she had care of the child on two nights per fortnight (proposed care change 3). On 8 July 2019 the Department rejected proposed care change 3 and so the existing care determination of 93% for Mr Colquhoun and 7% for Mrs Colquhoun from 8 December 2019 was retained. Mrs Colquhoun disagreed with the decision and lodged an objection on 10 October 2019. On 11 March 2020, an objections officer disallowed Mrs Colquhoun’s objection and so the existing care determination of 93% for Mr Colquhoun and 7% for Mrs Colquhoun was retained. On 14 April 2020 Mrs Colquhoun lodged an application to the tribunal for a review of this decision.

7. A hearing in respect of all three matters took place on 5 October 2020. Mrs Colquhoun and Mr Colquhoun participated in the hearing via conference telephone and both gave sworn evidence. In making its decision the tribunal took into consideration the documents (2020/MC018898: 79 pages; 2020/MC019515: 101 pages; 2020/MC018825: 89 pages) provided by the Department, which were also sent to Mrs Colquhoun and Mr Colquhoun.

CONSIDERATION

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

2. The legal issues for the tribunal in this case relate to an existing determination of care in place, which was that Mr Colquhoun had 100% care of the child and Mrs Colquhoun had 0% care of the child from 24 October 2018. The tribunal must determine whether the existing determination of care is to be revoked and, if so, from what date any new determination/s of care are to be made.

Has there been a change in the care of the child?

10.The Act requires the decision maker to make 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?

11.Therefore in this case the tribunal is required to determine what percentage of care Mrs Colquhoun and Mr Colquhoun were likely to have for the child from the dates of the three proposed care changes, that is from 8 December 2018, 24 March 2019 and 26 June 2019.

12.From the available evidence, including evidence provided during the hearing, the tribunal is satisfied that there were no court orders or parenting plans in place for the care of the child that were being followed during any of the relevant period. During the hearing both Mr Colquhoun and Mrs Colquhoun also confirmed that, for a few weeks from mid-December 2018[2] Mrs Colquhoun had 100% care of the child because she and the child travelled overseas together over this period. Neither party provided independent evidence of the exact dates of this travel.

[2] In her evidence Mrs Colquhoun said that she travelled overseas with the child from 16 December 2018 to 17 January 2019. Mr Colquhoun confirmed that the child had travelled overseas with Mrs Colquhoun around this time but said that he didn’t think that the child was overseas for that long.

13.Mrs Colquhoun’s oral evidence to the tribunal during the hearing in relation to all of the proposed care changes can be summarised as follows:

·     In relation to proposed care change 1, the child was with Mrs Colquhoun for four weeks from mid-December 2018 on a trip to [Country 1] and when the child returned to Australia she lived with Mr Colquhoun full time for the rest of January 2019 and then stayed overnight with Mrs Colquhoun on 1, 2, 12, 13, 19 and 25 February 2019;

·     From earlier in 2018 both parents had agreed that the child would travel overseas with Mrs Colquhoun in December 2018 and Mrs Colquhoun expected that then the child would stay with Mrs Colquhoun on weekends (Friday and Saturday nights) when they returned from overseas;

·     However, contrary to original expectations, the child actually stayed with Mrs Colquhoun on one weekend, two Tuesday nights (after dance class) and one Monday night in February 2019, because the child changed her mind about where she wanted to stay from around mid-February 2019;

·     During this period the child sometimes stayed overnight with her friends and she would have sought permission from Mr Colquhoun about this because he had most of the care at the time;

·     When they were overseas Mrs Colquhoun paid for the child’s expenses;

·     During the rest of January and February 2019 Mr Colquhoun paid most of the child’s expenses, although Mrs Colquhoun paid for the child’s phone and dance classes;

·     During this period both parents shared school costs, both were involved with the child’s school and both were emergency contacts for the school;

·     In relation to proposed care change 2, the child had a fight with Mr Colquhoun on 24 March 2019 and wanted to go and stay with Mrs Colquhoun;

·     The child was in Mrs Colquhoun’s care every night until the end of April 2019 except for the nights of 12, 13, 26 and 27 April 2019, when the child stayed with Mr Colquhoun;

·     During this period Mrs Colquhoun expected that the child would reconcile with Mr Colquhoun because Mrs Colquhoun had a trip planned in May and June 2019 and Mrs Colquhoun planned for the child to be in Mr Colquhoun’s full-time care while she was away;

·     During the period 24 March 2019 to 12 April 2019 the child did not stay overnight with Mr Colquhoun at all;

·     Mrs Colquhoun was responsible for paying all of the child’s costs and making all decisions in relation to the child from 24 March 2019 until the beginning of May when Mrs Colquhoun  left for her trip;

·     The child was in Mr Colquhoun’s full-time care during the months of May and June 2019;

·     In relation to proposed care change 3, the child was in Mrs Colquhoun’s overnight care on 11, 16 and 30 July 2019 but not before 11 July 2019, as Mrs Colquhoun only returned from her trip at the end of June 2019;

·     The child was in Mr Colquhoun’s care on all of the other nights in July 2019;

·     When Mrs Colquhoun returned from her trip, she expected to have care of the child on Tuesday night every week but the child sometimes decided to stay with friends so Mrs Colquhoun didn’t end up having care of the child every Tuesday night;

·     Mrs Colquhoun also had overnight care of the child on 13 and 20 August 2019 and on 11 and 18 September 2019;

·     Mrs Colquhoun moved to [Suburb 1] in October 2019 and only had occasional overnight care of the child on some weekends after that.

14.Mrs Colquhoun provided the following additional evidence, as contained in the Department’s documents:

·     On 2 August 2019 Mrs Colquhoun advised the Department in a conversation that she has 14% care of the child ongoing. She also advised she had care of the child for four weeks in December 2018, as they went to [Country 1] and that she had no care of the child in January 2019. She further advised that from February 2019 she had care every weekend, on Saturday and Sunday and every Tuesday and Wednesday as the child went to dance class. She also stated that she had care of the child for the whole of March and April 2019 and that in May 2019 she had no care of the child. She further advised that from June 2019 she has had care one night per week, on Tuesday night, when the child has dance classes.

·     Mrs Colquhoun submitted a letter written by her dated 2 February 2019 which stated that the child had been overseas with her from 17 December 2018 to 18 January 2019 and that since 20 January 2019 the child has been in her care every second weekend and every Tuesday.

·     Mrs Colquhoun submitted a letter written by her dated 9 July 2019 which stated that the child was in Mr Colquhoun’s care in February 2020 and in her care every second weekend and every Tuesday. This letter also states that the child came back into Mrs Colquhoun’s care from 24 March 2019 until 28 April 2019 and that after that Mrs Colquhoun was away for eight weeks and therefore not caring for the child over this period. The letter also advises that since her return on 1 July 2019, the child is still in Mr Colquhoun’s care and that Mrs Colquhoun would like to see her every second weekend.

·     Mrs Colquhoun submitted a letter written by her dated 9 August 2019 which stated that she had care of the child on the following dates:

o24 and 27 October 2018

o10, 11, 14, 23, 24 November 2018

o16 December 2018 to 17 January 2019

o1, 2, 12, 13, 19, 25 February 2019

oAll of March 2019

oAll of April 2019 except 12, 13, 26 and 27 April 2019

oNo days in May 2019

oNo days in June 2019

o11, 16, 17, 30, 31 July 2019

·     At the time Mrs Colquhoun also submitted hand annotated calendars for the months of November 2018 to July 2019 which included annotations indicating that the child was taken to school and/or dancing or just refer to the child’s name but do not clearly indicate the nights in which the child was in Mrs Colquhoun’s care and do not fully align with the dates outlined in the letter of 9 August 2019 which was submitted at the same time.

·     Mrs Colquhoun submitted a letter dated 26 November 2019 from her adult son which states that the child was living with Mrs Colquhoun from December 2017 to 22 October 2018 at which time she moved in to live with Mr Colquhoun until she went overseas with Mrs Colquhoun from 17 December 2018 to 17 January 2019.

·     Mrs Colquhoun submitted a letter written by her dated 2 December 2019 which states that the child was living with her in February 2019 for two nights each week every week and that in March 2019 she had 100% care of the child as the child had a disagreement with Mr Colquhoun. The letter further states that the child started visiting Mr Colquhoun again on 12, 13, 16 and 17 April 2019 but that she spent the rest of April 2019 with Mrs Colquhoun. The letter further states that in May and June 2019 the child was in Mr Colquhoun’s care as Mrs Colquhoun was away. The letter also advises that in July 2019 the child stayed with Mrs Colquhoun two nights per week every week, that in August 2019 Mrs Colquhoun took the child to dance class each Tuesday and that the child stayed with Mrs Colquhoun on 11 and 18 September 2019. She confirmed the information in this letter during a phone conversation with the Department on 12 December 2019 and further advised that, since October 2019, the child has been living full time with Mr Colquhoun;

·     On 17 January 2020 Mrs Colquhoun submitted an undated letter written by her advising that the child was in her care from 24 March 2019 after the child had a disagreement with Mr Colquhoun and that the child only resumed visiting Mr Colquhoun on 12, 13, 26 and 27 April 2019.

15.Mr Colquhoun’s evidence to the tribunal during the hearing can be summarised as follows:

·     Mr Colquhoun stated that he did not keep detailed records of the care of the child during the relevant period because he didn’t think that he would end up in a dispute with Mrs Colquhoun over this;

·     He pointed to the detailed evidence he submitted  about the care of the child throughout the Department’s review process and advised the tribunal that this evidence represents his best record of the care that was in place at the time;

·     In relation to proposed care change 1, Mr Colquhoun said he thought at the time that Mrs Colquhoun would have one night care per fortnight at the time, but the child made her own decisions about where she wanted to stay at the time;

·     Mr Colquhoun agrees that he had care of the child for the week commencing 8 December 2018, prior to the child’s travel overseas with Mrs Colquhoun;

·     Mr Colquhoun does not have a record of the exact dates the child was overseas but questioned Mrs Colquhoun’s evidence that the child was overseas for a whole month;

·     Mr Colquhoun agrees that the child returned to his care from 17 January 2019 and remained in his care every night for the remainder of February 2019;

·     Mr Colquhoun also agrees with Mrs Colquhoun that she had overnight care of the child on 1, 2, 12, 13, 19 and 25 February 2019 but notes that there was no agreed pattern of care at the time and that the care was decided by the child on an ad hoc basis;

·     Both Mr Colquhoun and Mrs Colquhoun were sharing the costs of the child during this period, depending on where the child was living at the time, and both parents were contacts for the school;

·     In relation to proposed care change 2, Mr Colquhoun pointed to the evidence he provided to the Department at the time in which he advised that the child was in Mrs Colquhoun’s care from 16 April 2019 to 30 April 2019, after the child disagreed with Mr Colquhoun about the rules and boundaries he had set;

·     Mr Colquhoun said that at the time Mrs Colquhoun had just commenced a new relationship and so he thought that the child would return to his care after a couple of weeks, consistent with the child’s normal pattern of behaviour after they had a disagreement;

·     He also expected the child would definitely be in his care from 1 May 2019 for two months because he knew that Mrs Colquhoun had a trip planned during this period and he had previously agreed to have care of the child while Mrs Colquhoun was away;

·     In terms of the costs of the child, Mr Colquhoun said that he paid for most of the costs of the child in March 2019 and the beginning of April 2019, that Mrs Colquhoun paid for the child’s costs during the two weeks the child was with her at the end of April 2019 and that he has paid for most of the costs of the child since the beginning of May 2019;

·     In relation to proposed care change 3, Mr Colquhoun said that, when she returned from her trip at the end of June 2019, Mrs Colquhoun and the child had a fight and after that the child did not choose to stay overnight with Mrs Colquhoun except on 11, 12, 30 and 31 July 2019;

·     At the time he thought that the child might want to stay with Mrs Colquhoun for perhaps two nights per week but within a few days of Mrs Colquhoun’s return it was clear that the child did not agree to a regular ongoing pattern of care with her;

·     Mr Colquhoun described the child as “strong-minded” and said that the child didn’t like “rules” and tended to play the parents off against the other when one or the other parent attempted to set rules or boundaries;

·     Since August 2019 Mrs Colquhoun has dropped the child off at dance class on Tuesday nights but Mr Colquhoun has collected the child from dance class and the child has been in Mr Colquhoun’ full-time overnight care.

16.During the Department’s review of this matter, Mr Colquhoun provided the following evidence, as contained in the Department’s documents:

·     On 21 January 2019 Mr Colquhoun notified the Department that care of the child had changed and that the actual care occurring was that Mrs Colquhoun has had care of the child one night per fortnight from 8 December 2018;

·     On 22 January 2019 Mr Colquhoun submitted an updated letter from Mia Riggio which advised that, as of 22 October 2018 the child has been living with Mr Colquhoun for 12 out of 14 days;

·     Mr Colquhoun also submitted a letter dated 21 January 2019 from his son, [Child 2] Colquhoun, which also advised that as of 22 October 2018 the child has been living with Mr Colquhoun for 12 out of 14 days;

·     On 6 May 2019 Mr Colquhoun advised the Department that the child spent a couple of weeks with Mrs Colquhoun although she was also staying overnight with him during this time. He further advised that Mrs Colquhoun had been away since the beginning of May and will be away for at least one month and that the child has had minimal contact with Mrs Colquhoun since mid-April 2019.

·     Mr Colquhoun submitted a letter written by him dated 28 December 2019 which states that he had care of the child as follows:

o3,10,17, 24 and 31 March 2019;

o1 April 2019 to 15 April 2019

oAll of May 2019

oAll of June 2019

oAll of July 2019 except 11, 12, 30 and 31 July 2019

o100% care since 1 August 2019

• On 5 June 2019 Mr Colquhoun advised the Department that he was unable to provide a specific date for when the child left his care for the two weeks she was in Mrs Colquhoun’s care but he accepts that Mrs Colquhoun had care of the child from 24 March 2019 to 7 April 2019, after which time she returned to Mr Colquhoun’s care;

• Mr Colquhoun submitted a letter written by him dated 28 December 2019 which states that the child was in Mrs Colquhoun’s care on 3, 10, 17, 24 and 31 March 2019 as she had dancing. It also states that Mrs Colquhoun had care of the child from 16 to 30 April 2019. It further states that Mr Colquhoun had care of the child for the months of May 2019 and June 2019. It also advises that Mr Colquhoun had care of the child in July 2019 except for 11 to 12 July and 30 to 31 July, when Mrs Colquhoun had care of the child. The letter further states that, since 1 August 2019 the child has lived with Mr Colquhoun 100% of the time and has only seen Mrs Colquhoun for two hours every Tuesday, when she is dropped off at dance class, but that Mr Colquhoun picks her up from dance class and she remains in his overnight care.

• Mr Colquhoun submitted a letter written by him dated 29 December 2019 which states that the child lived with Mrs Colquhoun from December 2017 to October 2018 and the child lived 100% of the time with him since 1 August 2019. Mr Colquhoun’ letter also claims that the letter provided to the Department from [Child 2] Colquhoun was written under a false pretext.

17.During the hearing Mrs Colquhoun disagreed with Mr Colquhoun’s description of the care arrangements, particularly for March and April 2019, and reiterated her view that the child was in her care from 24 March 2019 until the end of April 2019, only staying with Mr Colquhoun on two weekends during this period.

18.During the hearing Mr Colquhoun told the tribunal that he agreed that the child was in Mrs Colquhoun’s care during a short holiday to [Country 1] in December 2018, although he was not convinced that it was a four week holiday, and he wasn’t sure whether this constitutes a formal change in care arrangements given that it was an agreed one-off temporary care arrangement which was not expected to persist after the child returned to Australia.

19.Section 50 of the Act requires a new determination of a percentage of care to be made where an existing determination has been revoked and the tribunal is satisfied either that the person has had, or is likely to have, a pattern of care during a care period.

20.In this case, the tribunal has determined that a care determination was made under section 50 of the Act from 24 October 2018 such that Mr Colquhoun had a percentage of care for the child of 100% from that date. Therefore, paragraph 54F(1)(a) of the Act is satisfied. Mr Colquhoun contacted the Department on 21 January 2019 and advised that the care that was taking place for the child from 8 December 2018 did not correspond with the existing percentage of care as determined. Therefore, paragraph 54F(1)(c) of the Act is satisfied.

21.The Act also requires that there would be a change in the cost percentage if another percentage of care were determined for Mr Colquhoun under section 50 of the Act. Section 50 of the Act provides that if the tribunal revokes a determination and is satisfied that a party has had, or is likely to have, a pattern of care of a child, the tribunal must determine the care during the care period. ‘Actual care’ may be worked out based on the number of nights the child was or will be in the care of the person (subsection 54A(1) of the Act).

22.The tribunal is required to consider what actual care Mrs Colquhoun and Mr Colquhoun were likely to have of the child from 8 December 2018. There were also two subsequent notifications of changes in care made by Mrs Colquhoun. In relation to those notifications, the tribunal is also required to consider what care Mrs Colquhoun and Mr Colquhoun were likely to have of the child from 24 March 2019 and from 26 June 2019.

23.The issue here rests on whether agreement had been reached between the parents that there would be an ongoing change in the pattern of care of the child from 8 December 2018 and/or 24 March 2019 and/or 26 June 2019.

1. Mrs Colquhoun’s case appears to be that from 8 December 2018 she had extended periods of care of the child which is not reflected in the care as recorded by the Department (93% care for Mr Colquhoun and 7% care for Mrs Colquhoun). She maintains that she has had periods of greater than 7% care, including some blocks of time in which she had 100% care of the child.

2. Mr Colquhoun’s case is that he expected Mrs Colquhoun to have care of the child one night per fortnight from 8 December 2018 apart from a short period in the middle of December 2018 when the child went overseas with Mrs Colquhoun and a two month period, in May and June 2019, when they agreed that he would have 100% care of the child while Mrs Colquhoun was on a trip. He maintained that the child made her own decisions about care, which varied depending on the child’s relationship with either parent at the time. He said that, while there was no written agreement between the parents, in hindsight he considers that his notification of 93% for Mr Colquhoun and 7% for Mrs Colquhoun at the end of January is a reasonable reflection of the care that occurred.

3. The tribunal assessed all of the available evidence and noted some variation in Mrs Colquhoun’s evidence regarding the dates of care she provided to the Department during the review process for these matters. The tribunal also notes the annotations on the calendar of care that Mrs Colquhoun submitted to the Department which, in the tribunal’s view, do not clearly show which nights Mrs Colquhoun had overnight care of the child.

4. The tribunal carefully considered the various points of agreement and variance between each of the parents’ evidence regarding the care of the child from December 2018, as summarised in paragraphs 13 to 18 of these Reasons and was unable to reconcile some of these differences based on the available evidence.

5. However, taking into account the available evidence, the tribunal is persuaded that, from 8 December 2018 and continuing after Mrs Colquhoun and the child returned from overseas, there was a general expectation that Mrs Colquhoun would have one day of care per fortnight, as notified by Mr Colquhoun on 21 January 2019. Further, the tribunal is satisfied that any additional care that Mrs Colquhoun had over and above this was ad hoc and depended on choices made by the child at various points in time and therefore was not part of an ongoing change in the pattern of care. In short the tribunal is satisfied that the only expected pattern of care was that Mrs Colquhoun would have care one night of care per fortnight, either on one weekend night or after the child’s dance class on a Tuesday night.

6. In reaching this conclusion the tribunal also notes that, during the relevant periods, there were some blocks of time where one or the other parent had 100% care of the child, but the tribunal is satisfied that this only happened when the child was on a short overseas holiday with Mrs Colquhoun, when Mrs Colquhoun was travelling in May and June 2019 and from time to time when the child had a ‘falling out’ with one of the parents. The tribunal accepts that these short blocks of care, caused by holidays or disagreement with a parent, were intermittent and not part of an agreed change in the ongoing pattern of care. Further, the tribunal is satisfied that there was no expectation that one or the other parent would have 100% care of the child during the relevant periods.

7. Therefore the tribunal finds that, from 8 December 2018, there was a change in the care of the child such that Mr Colquhoun had 93% care and Mrs Colquhoun had 7% care of the child. The tribunal also finds that there was no subsequent ongoing change to this pattern of care on 24 March 2019 or 26 June 2019.

8. The tribunal’s decision is consistent with the Department’s assessment that there was a change in care which constitutes a change to the pattern of care from 8 December 2018, in accordance with section 50 of the Act, such that Mr Colquhoun had 93% care and Ms Colquhoun had 7% care.

9. The tribunal’s decision is also consistent with the Department’s assessment that there was no subsequent change in care which constitutes a change to the pattern of care from 24 March 2019 or from 26 June 2019, as required under section 50 of the Act. Accordingly, the tribunal finds that the care arrangements from 8 December 2018 continued.

Should the existing care determination in relation to the child be revoked?

33.Subsection 54F(1) of the Act sets out certain circumstances in which a determination of a percentage of care must be revoked. Specifically, it states that an existing determination must be revoked if the Department is notified that the care taking place does not correspond with the responsible person’s existing care of the child or children.

34.The tribunal has determined that a care determination was made under section 50 of the Act from 24 October 2018 such that Mr Colquhoun had a percentage of care of the child of 100% and that Mrs Colquhoun had a percentage of care of 0% from the same date. As the tribunal has now concludes that from 8 December 2018 Mrs Colquhoun and Mr Colquhoun’s care percentages were not the same as their previously determined care percentages, section 54F(1)(a) of the Act applies. The tribunal also finds that cost percentages would change if new determinations were to be made and therefore the tribunal must revoke the existing determinations of percentages of care.

35.The tribunal is required to consider the actual care of the child during the care period. The care period is such a period as the Department considers to be appropriate having regard to all the circumstances (section 50 of the Act). The Department’s policy in this regard, as set out in chapter 2.2.1 of the Child Support Guide (the Guide),[3] is that a care period is generally a 12-month period from the day on which the actual care for a child changed. This policy is not binding on the tribunal. The tribunal considers that, in the circumstances of this case, an appropriate care period is the 12-month period from 8 December 2018, being the date on which Mr Colquhoun stated that a change to the care arrangements had occurred.

[3] The Child Support Guide (the Guide) is the government policy adopted by the Department that applies to the interpretation and application of the child support legislation. Generally, the tribunal will follow the Guide unless there is a cogent reason not to do so. There are no circumstances in this matter that would require the Guide to be disregarded.

1. In the circumstances the tribunal must revoke the existing determination of percentages of care and make a new determination that Ms Colquhoun had 7% care of the child from 8 December 2018 and Mr Colquhoun had 93% care from 8 December 2018.

2. The tribunal notes that this care decision has effect from 21 January 2019 for Mr Colquhoun and 8 December 2018 for Mrs Colquhoun, as the Department was not notified within 28 days of the change occurring.

3. The tribunal also notes that all of these care decisions are consistent with the decisions of the objections officers who reviewed these matters and therefore the tribunal affirms all of the decisions under review.

DECISION

The tribunal affirms all of the decisions under review.