Gerner and Mitchison (Child support)

[2021] AATA 1532

Gerner and Mitchison (Child support) [2021] AATA 1532 (13 April 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/SC020197

APPLICANT:  Mr Gerner

OTHER PARTIES:  Child Support Registrar

Ms Mitchison

TRIBUNAL:Member M Douglas

DECISION DATE:  13 April 2021

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that from 3 July 2020 the care percentages for [Child 1] and [Child 2] are 61% for Ms Mitchison and 39% for Mr Gerner.

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 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

BACKGROUND

1. Mr Gerner and Ms Mitchison are the parents of [Child 1] and [Child 2], for whom child support assessments have been issued with effect from 23 September 2019.

2. On 29 April 2020, Mr Gerner notified Services Australia – Child Support (hereafter Child Support) which is the government instrumentality through which the Child Support Registrar acts, that a court hearing had occurred between him and Ms Mitchison [in] April 2020 where orders were made that provided for him to have 40% overall care of the children and Ms Mitchison to have 60% overall care of the children.  He provided Child Support with a copy of the orders.  The existing care percentages were 35% for Mr Gerner and 65% for Ms Mitchison. 

3. On 22 May 2020, Child Support decided to revoke the existing care percentages, with effect on 19 April 2020, and to determine new care percentages of 60% for Mr Gerner and 40% for Ms Mitchison, that applied from 20 April 2020.

4. On 11 August 2020, Ms Mitchison lodged an objection to that decision.  She did so by way of a telephone call to Child Support.  The substance of what she told Child Support in that call was that the court orders did effect a change in the care of the children but that change only took effect from the July school holiday period.

5. On 5 November 2020, Child Support allowed her objection and set aside its decision of 22 May 2020, with the effect that the care percentages reverted to 65% for Ms Mitchison and 35% for Mr Gerner.

6. Mr Gerner then applied to the Tribunal for review of the objection decision.  The Tribunal heard his application on 13 April 2021.  The hearing was conducted using Microsoft Teams software. Both Mr Gerner and Ms Mitchison participated and gave sworn oral evidence.  No one from Child Support appeared on behalf of the Registrar, which is customary.  Child Support, however, did provide the Tribunal, and also Mr Gerner and Ms Mitchison, with a copy of all the documents it had relevant to its decision, which was in accordance with its obligation under subsections 37A(1) and 38AA(1) of the Administrative Appeals Tribunal Act1975. 

CONSIDERATION

1. The evidence of both Mr Gerner and Ms Mitchison at the hearing was that orders the Federal Circuit Court of Australia made [in] April 2020 with their consent provided for the care of the children to be shared equally between them during school holidays.  Further, during school terms until the start of term 1 of the 2021 year Mr Gerner and Ms Mitchison’s care of the children would, in accordance with the orders, remain as it had been, which was four nights a fortnight for Mr Gerner and 10 nights for Ms Mitchison, but commencing term 1 in the 2021 year Mr Gerner’s care of the children would increase to five nights a fortnight and Ms Mitchison’s care would reduce to nine nights a fortnight during school terms thereafter.

2. Both Mr Gerner and Ms Mitchison confirmed at the hearing that the effect of the orders was an increase in Mr Gerner’s care of the children from the start of the July 2020 school holidays of three nights during each school holiday period and, from the start of term 1 of the 2021 year, of one night a week during school terms.  In other words, both Mr Gerner and Ms Mitchison agreed that the orders the court made [in] April 2020 effected an increase in the care Mr Gerner had of the children but that increase in his care of the children only commenced from the start of the July school holidays.

3. Child Support was aware of this, both as a consequence of Ms Mitchison’s objection and by Mr Gerner having provided it with a copy of the orders.  That is to say, at the time Child Support made its decision on Ms Mitchison’s objection, it was aware that the existing care percentages for the children did not accord with the actual care that Mr Gerner and Ms Mitchison respectively had of them, and that the date on which that variance occurred was not 20 April 2020 but rather the start of the July school holiday period. 

4. Mr Gerner also provided Child Support on 22 September 2020 with a copy of a calendar for both the 2020 and 2021 years in which he shaded with blue the days upon which he had, until 22 September 2020, care of the children and the days on which he would be having care of the children thereafter in accordance with the orders the court had made.  That is at pages 93 and 97 of the documents Child Support provided to the Tribunal.

5. On 11 August 2020 Ms Mitchison provided Child Support with a copy of a calendar for the months of April to August 2020 in which she had noted the days that the children were with her and the days on which they were with Mr Gerner.  On 30 October 2020 she provided Child Support with a copy of a calendar for the months of October to December 2020 in which she had done similarly.  What she disclosed in her calendar with respect to the children’s care coincided with what Mr Gerner had shaded in his calendar for the 2020 year.  On the Tribunal’s analysis of the calendar Mr Gerner provided Child Support for the 2021 year, those days that he shaded on which the children will be in his care coincided with what is provided by the court orders.

6. In other words, the calendars that Mr Gerner and Ms Mitchison each provided Child Support recorded accurately where the children had been residing up to the date upon which they respectively provided their calendars to Child Support and where the children would be residing thereafter.

7. As mentioned both parties agreed that there was a change in the care of the children from the start of the July 2020 school holiday period. The Tribunal notes these holidays commenced on 3 July 2020.  From that date to 31 December 2021, Mr Gerner’s calendar reveals that he will have care of the children for a total of 214 nights over the 547 nights of that period.  That represents 39% of the nights.  Ms Mitchison accordingly will have the children on the remaining nights; being 61% of the nights of that period. 

8. Child Support was required under section 54F of the Child Support (Assessment) Act1989 to revoke the existing care percentages if it was notified or otherwise became aware that the care of the children that was actually taking place did not correspond with Mr Gerner’s and Ms Mitchison’s respective care percentages for the children.  Upon revoking the care percentages, Child Support was required under section 50 to determine new care percentages based upon the care Mr Gerner and Ms Mitchison would have of their children for a care period, which is a period that is appropriate having regard to all the circumstances to discern a pattern of care of the children.

9. At the time Child Support made the objection decision it was aware both from the material that Mr Gerner and Ms Mitchison had provided to it, in the form of the court orders and their respective calendars, and also from Ms Mitchison’s call on 11 August 2020 when she made her objection against the decision of 22 May 2020, that there had been a change in the care of the children such that the existing care percentages used in the assessment were no longer accurate.  Given that, the decision Child Support made on Ms Mitchison’s objection was not the correct or preferable decision.  The Tribunal must accordingly set it aside and make a decision in substitution. 

10. With respect to deciding what is an appropriate care period within which to determine the pattern of care that Mr Gerner and Ms Mitchison will have of the children, the Tribunal considers that the period from 3 July 2020 to 31 December 2021 is an appropriate period, given that 3 July is when the change in care occurred and the period incorporates all changes that were made in accordance with the court orders.

11. As mentioned, Mr Gerner’s care of the children in that period will be 39% of the nights and Ms Mitchison’s care will be 61%.

12. The Tribunal accordingly determines that those care percentages apply from 3 July 2020.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that from 3 July 2020 the care percentages for [Child 1] and [Child 2] are 61% for Ms Mitchison and 39% for Mr Gerner.