Duncan and Heng (Child support)

[2020] AATA 2132

Duncan and Heng (Child support) [2020] AATA 2132 (30 April 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/MC018697

APPLICANT:  Ms Duncan

OTHER PARTIES:  Child Support Registrar

Mr Heng

TRIBUNAL:Member J Longo

DECISION DATE:  30 April 2020

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – care appropriately measured with reference to nights - 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

BACKGROUND

1. Ms Duncan and Mr Heng are the parents of [Child 1]. Mr Heng is the parent liable to pay child support.

2. On 18 October 2019, the Department of Human Services – Child Support (the Department) applied the decision Centrelink had made regarding the care of [Child 1] which Mr Heng had a percentage of care of 30% for [Child 1] and Ms Duncan had a percentage of care of 70% from 9 July 2019.

3. On 16 December 2019 Mr Heng objected to the Department’s decision to implement a change in the care. On 20 March 2020, the Department allowed the objection and determined that Ms Duncan and Mr Heng both had 50% care of [Child 1] from 9 July 2019.

4. On 23 March 2020, Ms Duncan lodged an application to the Administrative Appeals Tribunal (the tribunal) for a review of the decision. The hearing took place on 30 April 2020. Ms Duncan and Mr Heng participated via conference telephone in the hearing and gave sworn evidence. In making its decision, the tribunal took into consideration the documents (123 pages) provided by the Department which were also sent to Ms Duncan and Mr Heng.

CONSIDERATION

1. The law that applies in this case is the Child Support (Assessment) Act 1989 (the Act).

What is the care of [Child 1]?

1. Ms Duncan and Mr Heng both confirmed at the hearing that there were no court orders or parenting plans in place for the care of [Child 1]. Ms Duncan stated that from July 2019, Mr Heng had [Child 1] in his care overnight Wednesday, Thursday and Friday night in the first week and Tuesday, Wednesday and Saturday night in the second week. She stated that Mr Heng’s mother usually collected the children because he is usually working. She stated that the care was higher for her to Centrelink because she was told to include the care during the day and this was actually calculated by the Centrelink officer. Ms Duncan confirmed that [Child 1] was attending kindergarten and from around July 2019 she started prep five days per week. Ms Duncan confirmed that [Child 1] was collected from school when in Mr Heng’s care.

2. Mr Heng also confirmed that [Child 1] was in his care as stated by Ms Duncan but that he has her on Friday in the second week which means he has seven out of 14 days. He confirmed that his parents did help with picking her up from school and sometimes with the drop off in the morning due to his work commitments but otherwise she was in his care during this time. He stated that he organised for [Child 1] to be collected by his parents. The tribunal notes that Mr Heng provided a number of statutory declarations which corroborated Mr Heng’s evidence regarding the level of care he has of [Child 1]. 

3. Section 50 of the Act requires a determination of a percentage of care to be made where the tribunal is satisfied either that the person has had, or is likely to have, a pattern of care during a care period as considered to be appropriate having regard to all the circumstances.

4. The tribunal has decided that the care for Ms Duncan and Mr Heng should not be changed from the care percentages as determined by the Department in the objection decision. There is no dispute between the parties as to the overnight care of [Child 1], except for Mr Heng having an additional night (Friday) in the second week. He has provided statements to support his care of [Child 1]. The tribunal is satisfied that the care of the children is equally shared. Ms Duncan has stated that the care should be dependent on not just the overnight care of the children, but include the other tasks done for the children.

5. Care is usually determined on the basis of the overnight arrangements in place. While other factors can be taken into account, it is usually only in circumstances where the care cannot be readily ascertained from the overnight care that these factors are considered. In this matter, it is clear that the nights of care of [Child 1] are equally divided between Mr Heng and Ms Duncan. Furthermore, the evidence of Ms Duncan and Mr Heng indicates that they are both doing other care tasks for their child. As the care for [Child 1] can be readily ascertained by reference to the nights in care with Ms Duncan and Mr Heng, the tribunal has determined that it is not necessary to examine the other factors in determining the care.

6. Accordingly, the tribunal has decided that the care determination should reflect that Ms Duncan and Mr Heng both have 50% care of [Child 1] from 9 July 2019 with effect from 16 December 2019.

DECISION

The decision under review is affirmed.