Deng and Deng (Child support)

[2020] AATA 2027

Deng and Deng (Child support) [2020] AATA 2027 (19 May 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/AC018788

APPLICANT:  Mr Deng

OTHER PARTIES:  Child Support Registrar

Ms Deng

TRIBUNAL:Member M Kennedy

DECISION DATE:  19 May 2020

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the objection is allowed so as to determine a care percentage for Mr Deng of 35% and a care percentage for Ms Deng of 65% at the commencement of the child support case.

CATCHWORDS

CHILD SUPPORT – percentage of care – what was the likely pattern of care from the start of the administrative assessment – whether the percentages of care were correctly determined - 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

1. Mr Deng and Ms Deng are the parents of [Child 1], [Child 2] and [Child 3] in respect of whom a child support assessment commenced on 29 November 2017.

2. In order to calculate a child support liability, the Department must make an initial determination of a care percentage in respect of both parents.  The Department determined care percentages of 80% to Ms Deng and 20% to Mr Deng, relying on information provided by both parents in a form for that purpose.

3. On 13 January 2020, Mr Deng objected to that initial care determination.

4. On 13 March 2020, an objections officer disallowed the objection.

5. Mr Deng applied to the Tribunal for review on 6 April 2020.

CONSIDERATION

1. Under the scheme for determining percentages of care for use in the administrative assessment of child support, where an application is made under section 25 of the Child Support (Assessment) Act (1989) (the Assessment Act) for a parent to be assessed in respect of the costs of the child, 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, the Registrar must determine the responsible person’s percentage of care for the child: section 50 of the Assessment Act.

2. As mentioned above, the Department’s initial care determination in this matter appears to have been based on the care percentages nominated by the parents in the document at T13.  During the hearing, both parents confirmed that they had signed that document.

3. The document identifies that the care percentages are 80% and 20% respectively, but it is apparent that in accepting those care percentage determinations the information on the form was not examined too closely.  Elsewhere in the form, information is provided indicating to the effect that Mr Deng will have care of the children for 2 nights in every 7.  This accords with a care percentage of 28% as a pattern.  In this way, the form at T13 is internally inconsistent.

4. Mr Deng’s evidence was that the pattern of care for the children actually accorded with another document that was prepared at about the same time.  This document is at T100.  It consists of a handwritten list of days of the week over a fortnight and an indication of which parent would have care of the children on the identified days over the fortnight.  The pattern of care documented at T100 is 35% for Mr Deng and 65% for Ms Deng.

5. Mr Deng’s evidence was that this list, described as a roster, was followed closely and formed the basis of the care arrangements for the children until subsequent events occurred in later years.  Mr Deng told me that it was prepared by Ms Deng at about the same time as the form at T13.

6. Ms Deng confirmed that she had prepared the roster, but she did not agree that the roster was followed on a consistent basis.

7. In this way, the factual determination I must make is whether or not the roster was followed on a consistent basis, and if not what the pattern of care actually was.  In that regard, there is no corroborating documentary evidence in respect of either parent’s position.  Third party statements provided by Mr Deng do not address the relevant period of time.

8. On balance, I have found the fact that the roster was prepared by Ms Deng at about the same time as the form at T13 to be persuasive.  The roster at T100 is clearly prepared to regulate the care arrangements for the children in some detail. 

9. The care arrangement documented on the form at T13 of 80% and 20% is unreliable in my view, because it does not even match other information provided on that form.  For the purpose of identifying a pattern of care for the children, I consider the roster at T100 is to be preferred, and in that regard, I accept Mr Deng’s evidence that the roster was in fact followed for an extended period of time.

10. I will allow Mr Deng’s objection so as to make an initial care determination of 65% to Ms Deng and 35% to Mr Deng, reflecting the pattern documented on the roster at T100.

11. I have explained to the parties the provisions of the child support law that will have the effect that the Registrar is likely not to give effect to the outcome of the objection until the date Mr Deng lodged his objection.  For child support purposes, it is likely that the care change will have no practical effect if there have been subsequent changes to the care arrangements in the intervening three years. I have further explained to the parties that the change to the care percentage determination may however be relevant for family assistance.

12. Finally, I have explained to Mr Deng that it would be open for him to request to have an earlier date of effect of the objection decision through the Registrar’s exercise of discretion at section 87AA of the Child Support (Registration and Collection) Act 1989, and that any decision in that regard is reviewable in the Tribunal if either parent is dissatisfied with the outcome.

13. Subsequent changes to the care arrangements for all or any of the children should be dealt with as separate decision-making process within the Department, and if necessary ultimately to the Tribunal.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that the objection is allowed so as to determine a care percentage for Mr Deng of 35% and a care percentage for Ms Deng of 65% at the commencement of the child support case.