Confidential and SOCIAL SECURITY APPEALS TRIBUNAL
[2010] AATA 707
•15 September 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 707
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/1254
GENERAL ADMINISTRATIVE DIVISION ) Re CONFIDENTIAL Applicant
And
SOCIAL SECURITY APPEALS TRIBUNAL
Respondent
DECISION
Tribunal Ms K Hogan, Member Date15 September 2010
PlacePerth
Decision The Tribunal:
1. sets aside the decision of the Social Security Appeals Tribunal under review and;
- remits the matter pursuant to section 43(1)(c)(ii) of the Administrative Appeals TribunalAct 1975 to the respondent with a direction that it notify the Child Support Agency of this decision and the liability of the father for child support payments be calculated by regard to the findings at paragraphs 28 to 32 herein.
....(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 – SSAT varied decision in anticipation agreed care periods would occur- decision of SSAT varied.
LEGISLATION
Child Support (Assessment) Act 1989 – Part 5 Division 1
Administrative Appeals TribunalAct 1975
REASONS FOR DECISION
15 September 2010 Ms K Hogan, Member History
1. The applicant (“the mother”) is the mother of two children (“the children”) born in 1993 and 1994.
2. The background of these proceedings may be briefly summarised as follows.
3. On 20 May 2009 the Child Support Agency had the assessment of care percentages for the children recorded as 14% for the father and 86% for the mother, in accordance with an oral agreement.
4. On 14 August 2009 the mother contacted the Child Support Agency to advise that the father had not provided care at the level of 14%.
5. On 18 September 2009 an officer of the Child Support Agency decided not to change the assessment of the level of care.
6. On 20 November an objections officer of the Child Support Agency decided to allow the objection and to change the care percentage to 9% for the father and 91% for the mother.
7. On 14 December 2009 the father sought review by the Social Security Appeals Tribunal (“the SSAT”) and on 23 February 2010, it decided that the father had 14 % care and the mother had 86 % care of their children.
8. The mother applied by these proceedings to review that decision.
Issues
9. The issues to be considered by the Tribunal are as follows:
9.1what percentage of care should be attributed to the father and the mother for the care of their children?
9.2if there is a change to the level of care, from what date should any new assessment take effect?
Evidence
10. The SSAT was not represented before the Tribunal.
11. The Tribunal was provided with a number of documents including the section 37 documents and a written submission from the mother.
12. The Tribunal heard evidence from the mother.
13. The mother stated that in the period 19 April 2009 to January 2010 the children spent a total of 40 nights with the father and that since the period in January 2010 the children have not spent any time with their father.
14. The children spent 2 nights in June 2009, 6 nights in July 2009, 1 night in October 2009, 6 nights in December 2009 and 25 nights in January 2010.
15. Previously all arrangements regarding contact with the father were made between the father and the children.
16. No arrangements have been made for the children to spend time in the care of their father in the future and the children have decided that they do not wish to spend time with him.
17. The mother advised the SSAT at the time of the hearing, recorded at paragraph 22, that she was of the opinion that the children would not return to their father’s care.
18. The father advised the SSAT, recorded at paragraph 23, that he anticipated that the children would spend time with him in April and May 2010.
19. The finding of the SSAT that a change in care had not occurred was predicated upon a finding that there was not enough evidence at that time to suggest that the prospective care periods would not occur.
20. The SSAT, recorded at paragraph 25,
“ that in the six month period from 20 May 2009 (the commencement of the child support case) (the father) had care of (the children) for 9 days. The Tribunal was satisfied that this period is not indicative of the ongoing pattern of care that is likely to occur. The Tribunal found that since 14 August 2009 (the father) has provided 32 nights of care to (the children). He has predicted a further 25 days of care in the period until the end of the term 2 school holidays in July 2010. The Tribunal is satisfied that there is likely to be a pattern of care, which to a large extent is based around school holiday periods, of at least 52 nights care per annum for (the father). The prospective care periods are based on arrangements made by (the father) and the (children) and there was not enough evidence before the Tribunal to suggest that those periods of care will not occur.”
Legislative Framework and Policy
21. 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.
22. Section 48 of the Act provides that a person’s percentage of care for a child for a day in a child support period is the percentage of care of the child that the person is likely to have during the period (the care period) of 12 months from either the day on which an application is made under section 25 or 25A for a parent to be assessed in respect of the costs of the child, or the day on which the Registrar becomes aware of a change of at least 7.1% in the percentage of care of the child that the person has that affects the annual rate of child support payable for the child, or that the person’s percentage of care for the child has fallen below 14%.
23. Section 52 of the Act provides for a determination as to the respective percentages of care to be made by the Registrar where, among other things, there is an agreement or order in place about the percentage care of the child and one parent does not agree that the actual percentage care of the child is in accordance with that agreement or order.
24. However, section 53 of the Act provides for a determination to be made by the Registrar where a parent was to have regular care of a child under an agreement or order.
25. The expression regular care is found at section 5 (2) of the Act. It provides that a person has regular care of a child if the person has at least 14 per cent but less than 35 per cent of the care of a child during a care period. The expression care period is found at section 48 of the Act and it is a period of 12 months commencing when a parent is assessed with respect to the cost of the child or, relevantly for these proceedings, there is a change in the percentage of care for that child. The expression percentage of care is not defined but in a notation at the conclusion of section 48 of the Act, there is a recording that the percentage of care is calculated having regard to the number of nights that a child is likely to be in the care of a person during the care period.
26. Section 53(8) of the Act provides that if a determination may be made under both section 52 and section 53, then that determination must be made under section 53 and not under section 52.
27. Section 53 of the Act also provides for the date on which any determination made under that section should commence and specifically provides that if a parent does not notify the Registrar within a reasonable period that the other parent had no care, then any determination will not take effect any earlier than the date of the determination. Under section 53(5)(a) of the Act if a parent never established a pattern of care in accordance with an agreement or order, the determination will commence on the day on which the court order was made.
Findings
28. The Tribunal finds:
(a) in the period 19 April 2009 to 28 January 2010 the children spent a total of 40 nights with the father , being 2 nights in June 2009, 6 nights in July 2009, 1 night in October 2009, 6 nights in December 2009 and 25 nights in January 2010;
(b) since 28 January 2010 the children have not spent any time with the father;
(c) the father ceased to have care of the children following the visit in January 2010;
(d) the periods detailed in paragraph 28(a) above are not indicative of the ongoing pattern that is likely to occur;
(e) the father’s percentage of care has fallen below 14% and therefore the father has had less than regular care of the children within the meaning of the Act.
29. It follows that, in accordance with section 53(8) of the Act, any determination must be made under section 53.
30. The Tribunal finds that the Child Support Agency first became aware of a potential change in the level of care on 14 August 2009 and accordingly the relevant care period is 14 August 2009 to 13 August 2010.
31. In the relevant care period above the children spent a total of 32 nights in the care of the father.
Decision
32. The Tribunal:
32.1sets aside the decision of the Social Security Appeals Tribunal under review and;
32.2remits the matter pursuant to section 43(1)(c)(ii) of the Administrative Appeals TribunalAct 1975 to the respondent with a direction that it notify the Child Support Agency of this decision and the liability of the father for child support payments be calculated by regard to the findings at paragraphs 28 to 31 herein.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: ..(sgd) E Jordon......
AssociateDate of Hearing 23 August 2010
Date of Decision 15 September 2010
Representative of the Applicant Self-represented
Representative of the Respondent Not represented
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