Cropp and Thatcher (Child support)

[2020] AATA 1474

Cropp and Thatcher (Child support) [2020] AATA 1474 (31 January 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/BC017400

APPLICANT:  Ms Cropp

OTHER PARTIES:  Mr Thatcher

Child Support Registrar

TRIBUNAL:Member P Jensen

DECISION DATE:  31 January 2020

DECISION:

The decision under review is affirmed.

The Registrar is referred, in particular, to paragraphs 5 to 7 of the Tribunal’s Reasons for Decision.

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 affirmed

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. This case concerns the recorded care of Ms Cropp’s and Mr Thatcher’s oldest child, [Child 1]. By way of background, the Department of Human Services – Child Support (“the CSA”) recorded Ms Cropp as providing 50% care and Mr Thatcher as providing 50% care to [Child 1], with effect from 10 December 2016.

2. On 29 April 2019, Mr Thatcher reported a change in care from 9 April 2019. The CSA subsequently decided to record Ms Cropp as providing 0% care and Mr Thatcher as providing 100% care to [Child 1], with effect from 9 April 2019. Ms Cropp objected to that decision. An objections officer disallowed her objection. Ms Cropp applied to the Tribunal for further review. I heard the matter on 31 January 2020. Ms Cropp attended the hearing in person. Mr Thatcher attended the hearing by conference phone.

3. Some matters are no longer in dispute. In particular, there is no longer any dispute that in the ordinary course, Ms Cropp would have provided overnight care from 5 to 13 April 2019, but it transpired she “dropped [Child 1] off” at Mr Thatcher’s house on 9 April 2019. Mr Thatcher provided care on the night of 9 April 2019, and he continued to provide care until either 16 or 17 May 2019; there is conflicting evidence on that point, and it is not necessary to make a finding of fact on that point, and I will simply refer to the date as mid‑May 2019.

4. Ms Cropp explained that she ceased her care of [Child 1] on 9 April 2019 because there were “safety issues”. She said arrangements were made to organise an appointment with a psychologist, and the earliest available appointment was 16 May 2019. She said the parents agreed that she would resume her care of [Child 1] after the first psychologist’s appointment. Mr Thatcher said the parents agreed that she might resume her care after the first psychologist’s appointment. In any event, there is no dispute that she had not intended to provide overnight care prior to mid-May 2019.

5. On 7 June 2019, Mr Thatcher’s wife contacted the CSA which noted:

   [Ms Cropp] had no overnight contact with [Child 1] until [Thursday] 16 May 2019 when it was agreed they would trial a new pattern of care being Friday Saturday and Sunday returning to [Mr Thatcher] on Monday after school every second week.

6. At the hearing, both parents agreed that they actually reached an agreement whereby Ms Cropp would provide six nights of care every four weeks; she would provide three nights of care each weekend for two consecutive fortnights, and then she would provide no nights of care for two consecutive fortnights. Later during the hearing, Ms Cropp said they also agreed that she would also provide additional care during school holidays. In any event, on 25 July 2019 the objections officer noted:

   We note a potential care change for [Child 1] from 17 May 2019. This change will be pended and a separate decision is required to be made outside the objection process, which will carry its own objection rights once the decision is made.

7. To date, the CSA has not made that decision. It should do so promptly.

8. Returning to the decision that is under review, care decisions are made pursuant to the Child Support (Assessment) Act 1989 (“the Act”). Broadly speaking, decision-makers are required to determine the pattern of care each parent has provided, and is likely to provide, over the relevant care period: sections 49 and 50 of the Act. There is no dispute that Mr Thatcher provided a one-off block of full-time care from 9 April 2019 to mid-May 2019.

9. Departmental policy has been developed to assist decision-makers, and the relevant policy in this case appears at 2.2.2 of the Child Support Guide. Ms Cropp referred me to a portion of that policy which states:

   What constitutes a change to the pattern of care will depend upon the individual circumstances of the case. For example, when considering a change that would result in a parent's care falling below 14%, after a pattern of at least 14% had been previously established, the Registrar will consider that the pattern of care has changed when:

   ·the parent misses 3 care events in a row [or; …]

10. Ms Cropp stated that she did not miss three care events in a row while Mr Thatcher was providing his block of care. The difficulty with that submission is that Ms Cropp did not resume her 50% care in mid-May 2019. The missed care was not a brief interruption to the parents’ ongoing pattern of care that commenced on 10 December 2016; it was a new pattern of care. Mr Thatcher provided a significant one-off block of care and it is appropriate to record him as doing so. Ms Cropp will be recorded as providing 0% care pursuant to section 49 of the Act and Mr Thatcher will be recorded as providing 100% care pursuant to section 50 of the Act, with effect from 9 April 2019.

11. As noted earlier, there is no dispute that the parents commenced another pattern of care in mid-May 2019, which was variously described as Ms Cropp providing six nights of care every four weeks, or six nights of care every four weeks plus some portion of the school holidays, and the CSA will make a separate care decision in respect of that change in care.

DECISION

The decision under review is affirmed.

The Registrar is referred, in particular, to paragraphs 5 to 7 of the Tribunal’s Reasons for Decision.