Duck and Duck (Child support)

[2019] AATA 687

Duck and Duck (Child support) [2019] AATA 687 (26 February 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/SC015439

APPLICANT:  Ms Duck

OTHER PARTIES:  Child Support Registrar

Mr Duck

TRIBUNAL:Member C Breheny

DECISION DATE:  26 February 2019

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determinations correctly 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

BACKGROUND

1. Ms Duck and Mr Duck are the separated parents of [Child 1], born November 2007 and[Child 2], born May 2004. Since 1 July 2008 child support has been payable on the basis that Ms Duck has 100% care of the children. Mr Duck is the parent liable to pay child support to Ms Duck.

2. On 22 June 2018, Mr Duck contacted the Department of Human Services – Child Support (the Department) to advise that he now had care of the children two nights per fortnight, plus one holiday period (seven nights per year) from 22 June 2018. Ms Duck could not be contacted at the time. On 17 July 2018 a decision was made that Mr Duck had 16% and Ms Duck had 84% care of the children from 22 June 2018.

3. On 7 September 2018, Ms Duck objected to the decision and on 8 November 2018 an objections officer of the Department decided to partly allow the objection. The objections officer considered additional information provided by both Ms Duck and Mr Duck and found that Mr Duck had 15% care and Ms Duck had 85% care of the children from 22 June 2018. The objections officer also determined that there were no special circumstances for Ms Duck to lodge the objection outside the 28-day timeframe and therefore the new decision would affect the child support assessment from 8 November 2018.

4. On 15 November 2018, Ms Duck applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal for an independent review of the objection decision. The application was heard on 26 February 2019. Ms Duck and Mr Duck attended the hearing by conference telephone and gave evidence on affirmation. A representative of the Child Support Registrar did not attend the hearing. I had before me the Statement and Documents provided by the Department pursuant to subsection 37(1) of the Administrative Appeals Tribunal Act 1975, received on 1 February 2019 (documents numbered 1–110).

ISSUES & CONSIDERATION

1. The relevant legislation is the Child Support (Assessment) Act 1989 (the Act). The issue for me to consider in this review is whether a care change occurred on 22 June 2018 such that the existing care determination for the children should be revoked and a new care determination made and, if so, from what date it should apply.

2. Sections 49 and 50 of the Act require consideration of the actual, or likely, pattern of care that the parents will have in relation to the children. Section 54F of the Act provides that an existing care percentage decision must be revoked if the Department is notified, or becomes aware, that the actual care that is taking place does not correspond with the existing percentages of care recorded and that a care change would alter the cost percentage used for the parent in the administrative assessment. Section 55C of the Act contains a table that is used to work out a person’s cost percentage:

Cost percentages
Item	Column 1 Percentage of care	Column 2 Cost percentage
1	0 to less than 14%	Nil
2	14% to less than 35%	24%
3	35% to less than 48%	25% plus 2% for each percentage point over 35%
4	48% to 52%	50%
5	more than 52% to 65%	51% plus 2% for each percentage point over 53%
6	more than 65% to 86%	76%
7	more than 86% to 100%	100%

1. In this case, departmental records indicate that Ms Duck had 100% care of the children since 1 July 2008 (folio 102). Records also show that Mr Duck contacted the Department on 22 June 2018 to advise that he now had two nights per fortnight (52 nights), plus seven nights holiday care of the children from 22 June 2018. This amounts to 16%[1] care of the children.

2. Ms Duck agreed that Mr Duck had two nights per fortnight care of the children and he did have holiday care in July 2018, but he would not have additional holiday care in the future. She said Mr Duck’s work hours vary a lot and he would be unable to take holidays from work at the required time (during school holidays).

3. Ms Duck noted that prior to June 2018 Mr Duck did not have regular care of the children for two nights per fortnight, but he has now deliberately changed his work pattern to be able to have care of the children.

4. Ms Duck submitted that Mr Duck would have only 14% care of the children in the future.

5. Mr Duck agreed that he did not have any additional holiday care since July 2018 and that he probably would only have care for two nights per fortnight in the future. Mr Duck noted that he had more than 0% care of the children in the past, but he understood the limitations of the child support legislation and accepted the care decision made by the Department.

Conclusion

1. Care is generally calculated over a “care period”, which is a period that the Registrar or the Tribunal considers to be appropriate having regard to all the circumstances of the matter (section 50 of the Act). The Department’s policy in this regard, as set out in Chapter 2.2.1 of the Child Support Guide, is that a care period is generally a 12-month period from the day on which the actual care for a child changed, but may be a shorter period depending on the circumstances of the case.

2. Mr Duck notified the Department on 22 June 2018 that he had two nights per fortnight, plus seven nights holiday care of the children since that day. The Department used a 12-month care period in this case from 22 June 2018 to 21 June 2019 and calculated that Mr Duck had 16% care of the children from 22 June 2018 (folio 22).

3. The objections officer considered additional evidence provided by Mr Duck, a “care calendar” from 1 June 2018 to 17 October 2018 (139 nights), and found that Mr Duck had 22 nights care in the 139 night period, which equated to 15% care.

4. Ms Duck and Mr Duck now agree that Mr Duck will only have 14% care (two nights per fortnight) care of the children and no further holiday care.

5. As stated above, section 54F of the Act provides that an existing care determination must be revoked if the Registrar becomes aware that the person’s actual care does not correspond with the existing care percentage and the Registrar is satisfied that the cost percentage would change if another care percentage were to be determined.

6. The Department initially recorded that Mr Duck had 0% care of the children and Ms Duck had 100% care of the children and, in accordance with section 55 of the Act; his cost percentage was nil and Ms Duck’s cost percentage was 100%. Based on the evidence before me Mr Duck has 16% care (according to Mr Duck and the initial care determination) or 15% care (according to the objections officer’s calculation) or 14% care (according to Ms Duck) in the 12-month care period from 22 June 2018 to 21 June 2019. All of these care percentages result in a cost percentage of 24%; thus there is no practical impact on the amount of child support payable regardless of whether Ms Duck’s or Mr Duck’s evidence or the objections officer’s calculation is accepted.

7. On the basis of all the evidence before me I am therefore satisfied that Mr Duck’s care percentage is at least 14% and the cost percentage is 24% from 22 June 2018. Thus the existing care determination that Ms Duck has 100% care of the children and Mr Duck has 0% care of the children is to be revoked from 22 June 2018. I note the care calendar provided by Mr Duck (folio 70) indicates that he only had six additional nights care of the children in the holiday period 15–22 July 2018. This then would equate to 58 nights per year or 15% care. This is the same conclusion as reached by the objections officer, although for different reasons. I will therefore affirm their decision.

DECISION

The decision under review is affirmed.

[1] 52 nights + 7 nights = 59x100/365 = 16.16%