Colson and Yamber (Child support)

[2018] AATA 5029

Colson and Yamber (Child support) [2018] AATA 5029 (20 November 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/SC014997

APPLICANT:  Mr Colson

OTHER PARTIES:  Child Support Registrar

Ms Yamber

TRIBUNAL:Member J Thomson

DECISION DATE:  20 November 2018

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that from 1 September 2017, the care percentages to be recorded for [Child 1] are 33% to Ms Yamber and 67% to Mr Colson with effect from 10 July 2018.

CATCHWORDS

CHILD SUPPORT – percentage of care – agreed pattern of care – 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

BACKGROUND

1. Mr Colson and Ms Yamber are the parents of [Child 1], born 2008.

2. Prior to notification by Mr Colson of a change in care on 10 July 2018, the care percentages being assessed by the Department of Human Services – Child Support (the Department) were 49% to Ms Yamber and 51% to Mr Colson.

3. Mr Colson sought review of an objection decision made by the Department on 6 September 2018. This decision partially allowed Ms Yamber’s objection to an earlier Department decision dated 11 July 2018 to record Ms Yamber as having 36% care and Mr Colson 64% care of [Child 1] from 1 September 2017, with effect from 10 July 2018.

4. The objection decision set aside the Department’s decision of 11 July 2018 and decided that Ms Yamber be recorded as having 45% care and Mr Colson 55% care of [Child 1] from 1 September 2017, with effect from 10 July 2018.

5. The matter was heard by the Tribunal on 20 November 2018. Both parents attended the hearing via conference telephone and gave affirmed evidence. The Tribunal had before it documentation provided by the Department and Mr Colson.  

6. At the outset of the hearing, both parties informed the Tribunal that they had reached agreement on the care arrangements they wished to have recorded with respect to [Child 1], and requested the Tribunal to record Ms Yamber’s care as two nights per week and half the school holidays and Mr Colson’s care as five nights per week and half the school holidays, from 1 September 2017, with effect from 10 July 2018, the date upon which Mr Colson notified the Department of the change in care which both parents agreed occurred on 1 September 2017.

7. The parents requested the Tribunal determine the actual number of nights of care and the corresponding care percentages reflected in the parents’ agreed patterns of care as set out above.

8. Allowing a total of 6 weeks of school holidays per annum or 84 nights, each parent would have 42 nights’ care during the school holidays. Of the remaining 281 nights per annum, Mr Colson would have an additional 201 nights of care (281 / 7 x 5 = 200.7, rounded up to 201) and Ms Yamber would have an additional 80 nights of care (281 / 7 x 2 = 80.2, rounded down to 80). The respective totals of nights of care and corresponding care percentages are therefore as follows:

   Mr Colson: 201 + 42 = 243 nights’ care or 66% (243 / 365 x 100 = 66.57, say 67%);

   Ms Yamber: 80 + 42 = 122 nights’ care or 33% (122 / 365 x 100 = 33.42, say 33%).

9. Having considered the documentation provided by the Department and Mr Colson, the Tribunal is satisfied the facts and circumstances of the matter support such an outcome, that the respective care percentages calculated above are reflective of the respective parents’ agreed care patterns as set out above, and that such an outcome is both in the best interests of the child and the parents.

10. Accordingly, the objections officer’s decision under review is set aside, and, in substitution, the Tribunal decides Mr Colson has 243 nights’ or 67% care and Ms Yamber has 122 nights’ or 33% care of [Child 1] from 1 September 2017 with effect from 10 July 2018.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that from 1 September 2017, the care percentages to be recorded for [Child 1] are 33% to Ms Yamber and 67% to Mr Colson with effect from 10 July 2018.