Confidential and Child Support Registrar
[2011] AATA 236
•6 April 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 236
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/4258
GENERAL ADMINISTRATIVE DIVISION ) Re CONFIDENTIAL Applicant
And
CHILD SUPPPORT REGISTRAR
Respondent
And CONFIDENTIAL
Other Party
DECISION
Tribunal Ms K Hogan, Member Date6 April 2011
PlacePerth
Decision The Tribunal:
a) affirms the decision to set the applicant’s level of care at below regular care (less than 52 nights per year) and to set the other party’s level of care at above primary care (more than 313 nights per year) with effect from 18 January 2010.
b) varies the percentages of care to be used in the assessment to 10% (38 nights) for the applicant and 90% (327 nights) for the other party with effect from 18 January 2010.
..(sgd) K Hogan..................
Member
It is noted that publication of this decision is approved by the Administrative Appeals Tribunal pursuant to section 110x(4)(h) of the Child Support (Registration & Collection) Act 1988 (Cth).
CATCHWORDS
Child Support – assessment of percentage of care by Child Support Agency during a care period – date of effect of change – decision of SSAT varied
LEGISLATION
Child Support (Assessment) Act 1989
Administrative Appeals Tribunal Act 1975CASES
Re Drake and Minister for Immigration and Ethnic Affairs (NO 2) (1979) 2 ALD 634
REASONS FOR DECISION
6 April 2011 Ms K Hogan, Member History
1. The applicant and the other party are respectively the father and mother of a daughter born 10 June 1994.
2. The applicant and the other party never married.
3. On 18 January 2010 the other party contacted the Child Support Register (the Register) to request that the Register be changed to reflect that:
(a) the applicant no longer had 55 nights of care of the daughter (regular care); and,
(b) the applicant had 43 nights of care of the daughter (below regular care) and that the other party had 322 nights of care of the daughter (above primary care).
4. On 10 February 2010 the Child Support Agency (CSA) decided to amend the Register to show that from 18 January 2010 the applicant had below regular care and the other party had above primary care.
5. On 5 March 2010 the applicant lodged an objection to that decision.
6. On 4 May 2010 the CSA Objections Officer disallowed the objection.
7. On 28 May 2010 the applicant lodged an application for review of the decision of the CSA Objections Officer.
8. On 1 September 2010 the Social Security Appeals Tribunal (SSAT) decided to:
(a) affirm the decision to set the applicant’s level of care at below regular care (less than 52 nights per year) and to set the other party’s level of care at above primary care (more than 313 nights per year) with effect from 18 January 2010;
(b) vary the percentages of care to be used in the assessment to 12% (47 nights) for the applicant and 88% (318 nights) for the other party with effect from 18 January 2010.
9. The applicant applied by these proceedings to review that decision.
Issue
10. The issues to be considered by the Tribunal are:
(a) the percentages of care that the applicant and the other party provide for the daughter; and
(b) if there has been a change in the levels of care, the date of effect of that change.
Legislative Framework and Policy
11. The legislation relevant to this decision is contained in the Child Support (Assessment) Act 1989 (“the Act”).
12. The provisions of the Act and its amendments only apply to Western Australian ex nuptial cases to the extent that the Act and its amendments have been adopted by the Parliament of Western Australia.
13. Child support legislation is interpreted by CSA officers with the aid of the CSA Guide (“the Guide”). The Tribunal is not bound by law to apply policy set out in the Guide, but provided the policy is consistent with the legislation, it is required to have regard to it and, in the ordinary course, follow it (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).
Relevant Law
14. Division 1 of Part 5 of the Child Support (Assessment) Act 1989 sets out the basic formula used to determine the annual rate of child support and includes as one of the components the liable parent’s percentage of care.
15. Section 25 of the Act provides that a parent may apply to the Registrar for an administrative assessment of child support.
16. Section 48 of the Act provides that a person’s percentage of care for a child in a care period is the percentage of care determined by the Registrar.
17. Section 50 of the Act provides that if an application under s.25 is made and the Registrar is satisfied that a responsible person for the child 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; the Registrar must determine the responsible person’s percentage of care for the child during the care period, being a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person has had, or is likely to have, during the care period.
18. Section 74 A of the Act relevantly provides that if the Registrar amends an administrative assessment to alter the annual rate at which the child support is payable for the child; the altered annual rate is to apply on and from the first day in a child support period to which the responsible person’s percentage of care under the later determination applies.
Evidence and Contentions
19. The Respondent was not represented before the Tribunal.
20. The Tribunal was provided with a number of documents:
(a)written submission from the applicant;
(b)written submission from the other party;
(c)section 37 documents.
21. The Tribunal heard evidence from the applicant and the other party.
22. The parties agreed that the Court Orders dated 23 January 2009, (“the Orders”) in particular clause 3 relates specifically to the care arrangements for the daughter.
23. Clause 3 states:
“The child shall spend time with the father during the following periods:
(a)the first half of the 2009 April school holidays;
(b)in 2009 only a period of 16 days to coincide with either April or July school holiday period upon the father giving the mother six weeks notice of his intention to take the said 16 day holiday period during which he proposes to travel to Disneyland for a holiday;
(c)for one week during either the July or April 2009 school holidays depending upon which said holiday period the father takes up the opportunity of travelling to the United States for the purpose of the Disneyland holiday referred to above and one week during the 2009 October holiday period;
(d)for a period of three weeks during the 2009/2010 Christmas holidays commencing from 27 December 2009 and each alternate year thereafter;
(e)for a period of three weeks during each intervening Christmas school holiday period commencing the first Saturday of the said holidays in 2010 and each alternate year thereafter;
(f)the first week of each April school holiday period commencing 2010;
(g)the second week of each July school period commencing 2010;
(h)the second week of each October school holiday period commencing 2010;
(i)for a reasonable period including overnight time in the event that the child travels to the Perth metropolitan area during any period outside of school holidays and the mother to give the father 7 days notice if the child is travelling to Perth outside of school holiday periods;
(j)such further or alternate period as may be agreed between the parties from time to time”.
28. It was not in dispute that child support is payable for the daughter
29. Whilst the parties disagreed as to the circumstances which gave rise to the actual nights of care the applicant had of the daughter from 18 January 2010 it was not disputed that from 18 January 2010 the applicant had the following actual nights of care of the daughter:
(a) 5 nights from 18 January 2010 to 23 January 2010;
(b)7 nights in April school holidays;
(c)6 nights in July school holidays;
(d)0 nights in October school holidays;
(e)20 nights in December/January 2011
Total nights of care = 38.
Applicant
30. The applicant gave evidence that the daughter was in the care of the applicant for 19 nights in January 2010 but the CSA did not count those nights when calculating his level of care. Taking these nights into account he calculated that the daughter would have been in his care for 61 nights: 19 in January 2010, 7 in April 2010, 7 in July 2010, 7 in October 2010 and 21 in the December 2010/January 2011 period.
31. The CSA calculation from 18 January 2010 recorded that he had zero nights care of his daughter, however this was incorrect as she was with him during the period 18 January 2010 to 22 January 2010 and did not leave Perth for Karratha until 23 January 2010.
32. The applicant calculated the number of nights that he “expected” his daughter would be in his care. This is consistent, he argued, with the Orders which make clear that he has an equal right to ask for additional care of his daughter.
33. The applicant stated that the other party can refuse access to the daughter and “again gain a financial advantage from that refusal”. The applicant seeks “a more fair and equitable outcome”. (Transcript page 4).
34. The applicant gave evidence and provided documents which confirmed that on numerous occasions he had requested extra time in accordance with the Orders.
35. The applicant conceded that if he were to return to the Family Court he would not be likely to obtain orders which reflected the amount of time that he wanted to spend with his daughter.
36. The applicant conceded that he had 6 nights of care of his daughter in the July school holidays and 0 nights of care of his daughter in the October school holidays. Despite seeking early agreement from the other party to agree to a departure from the court orders, due to his unavailability in the second week of the October school holidays, no agreement was forthcoming.
Other Party
37. The other party gave evidence that on 18 January 2010 she telephoned the CSA to advise that the level of care of the daughter in 2010 would be in accordance with the provisions of the Orders dated 23 January 2009.
38. The other party gave evidence that the daughter was in Year 11 and 12 and that it was not appropriate for her to have extra time away from school.
39. The other party anticipates that perhaps in the future, once the pressures of Year 11 and Year 12 are no longer a factor, the daughter will spend further time with the father.
40. The other party argued that in seeking to include the care in the holiday period in January 2010 and the holiday period in 2010/2011 the applicant was seeking to extend the period for calculating child support liabilities from 12 to 13 months and that this is not appropriate.
41. The other party agreed with the decision of the SSAT.
Considerations And Findings
40. The Tribunal considered the evidence presented by the applicant and the other party and it also considered the documents referred to in paragraph 20.
42. The Tribunal finds the other party made an application under section 25 of the Act. The Tribunal is satisfied that the other party’s telephone call of 18 January 2010 in which she requested the CSA change the child support assessment to reflect the change in the care arrangements for the daughter as specified in the Orders was an application under section 25 of the Act. There is no requirement that such an application be in writing nor that the application may only be made at particular times of the year.
43. The Tribunal is satisfied that the prior assessment of care for the period commencing 27 January 2009 was based on the applicant having 55 nights of care (15% or regular care) and the other party 310 nights of care (85% or primary care), a calculation which reflected the nights the daughter was in the applicant’s care until mid January 2010 being the end of the 2009/2010 Christmas holidays in accordance with Clause 3(g) of the Orders.
44. The Tribunal finds that the applicant had the following nights of care of the daughter:
(a)5 nights from 18 January 2010 to 23 January 2010;
(b)7.nights in April school holidays;
(c)6 nights in July school holidays;
(d)0 nights in September/October school holidays;
(e)20 nights in December/January 2011
Total nights of care = 38
45. Whilst clauses 3(e) to (h) of the Orders dated 23 January 2009 provide for the applicant to have 42 nights of care from April 2010 and clause 3(j) provides that the applicant may have additional care as may be agreed by the parents, the Tribunal is satisfied on the evidence of the nights the daughter spent in the care of the applicant that in the 12 month period from 18 January 2010 that the applicant had 38 nights care which in accordance with the rounding rules in subsection 54 (D) of the Act equates to 10% and that the applicant’s percentage of care for the daughter has fallen below 14%.
46. The Tribunal finds that even if the applicant had had an additional night in July and 7 nights in October that he would have had a total of 45 nights of care and that his percentage of care for the daughter would still have fallen below 14%.
47. The Tribunal having determined that there has been a change in the level of care considered section 74 A of the Act to determine the effective date of change in the percentage of care to be 18 January 2010.
Decision
48. The Tribunal:
(a) affirms the decision to set the applicant’s level of care at below regular care (less than 52 nights per year) and to set the other party’s level of care at above primary care (more than 313 nights per year) with effect from 18 January 2010.
(b) varies the percentages of care to be used in the assessment to 10% (38 nights) for the applicant and 90% (327 nights) for the other party with effect from 18 January 2010.
I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Ms K Hogan, Member
Signed: ..(sgd) T Freeman.................
AssociateDate/s of Hearing 8 March 2011
Date of Decision 6 April 2011
Representative for the Applicant Self represented
Representative for the Respondent Not represented
Representative for Other Party Self represented
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