Gorbold and Hurst (Child support)

[2019] AATA 5734

Gorbold and Hurst (Child support) [2019] AATA 5734 (28 November 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/MC017316

APPLICANT:  Ms Gorbold

OTHER PARTIES:  Child Support Registrar

Mr Hurst

TRIBUNAL:Member A Schiwy

DECISION DATE:  28 November 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 – no change to the likely pattern – refusal to revoke the existing percentage of care determinations – 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 Gorbold and Mr Hurst are the separated parents of three children including [Child 1] who is 15 years old.  This application for review is about the respective percentages of care that each parent has for [Child 1].

2. The Department of Human Services (Child Support) made a determination on 21 December 2018 that Ms Gorbold had 14% care of [Child 1] and Mr Hurst had 86% care.  Ms Gorbold did not object to this decision.

3. On 10 April 2019 Ms Gorbold contacted Child Support requesting a change in care and stated that she now had 86% care of [Child 1] from 8 April 2019.  Child Support attempted to contact Mr Hurst but were unable to do so, and on 2 May 2019 Child Support decided that there had been a change in care and Ms Gorbold had 86% care of [Child 1] from 8 April 2019 and Mr Hurst had 14% care.

4. On 27 May 2019 Mr Hurst objected to the care decision stating that [Child 1] had only stayed with her mother for a few extra nights and that he had the majority of care for [Child 1].  On 29 August 2019 an objections officer decided to allow the objection. 

5. On 3 September 2019 Ms Gorbold applied to this tribunal for an independent review of the objection officer’s decision.

6. A hearing into the application for review was held by the tribunal on 28 November 2019 in [City 1].  Ms Gorbold and Mr Hurst participated in the hearing by conference telephone.  They both gave evidence under affirmation during the hearing.

7. Mr Hurst did not attend for all of the full hearing.  When he was contacted he was at work and appeared to have forgotten about the hearing.  He did provide evidence to the tribunal but stated that he needed to get back to work and chose to leave the hearing before it was finished.  He understood that the hearing would continue in his absence.

8. The tribunal had before it relevant documents provided to it by Child Support pursuant to subsection 37(1) of the Administrative Appeals Tribunal Act 1975, which were labelled folios 1 to 137.  Ms Gorbold also provided a written submission with supporting evidence (A1 to A26).  A copy of the papers was provided to the parents prior to the hearing.

CONSIDERATION

1. The Child Support (Assessment) Act 1989 (the Assessment Act) provides for an administrative assessment of the child support payable by one parent to the other. It uses a statutory formula which contains variables such as the parents’ adjusted taxable incomes, the number of children and their percentages of care.

2. The Assessment Act contains a complex scheme governing the determination of percentages of care: Division 4 of Part 5 of the Assessment Act. Essentially, if there is a pattern of care of the child by two (or more) persons, a percentage of care of the child is determined for each parent or caregiver. That determination remains in force until it is revoked. If the pattern changes sufficiently and the Registrar becomes aware of the change, the Registrar must revoke the previous determinations and make new ones. The dates of effect of the revocations, and therefore also of the new determinations, depend on the date of the change and sometimes on whether the parent notified the Registrar within a reasonable time.

3. The primary decision-maker is required to assess the actual or likely pattern of care, by reference to an appropriate care period, and to determine whether to revoke the existing care determination and make a new one. The tribunal’s task on review is the same. 

4. Ms Gorbold stated the following:

   ·There is no formal care agreement.

   ·Since [Child 1] became a teenager, she has changed her mind several times about where she wants to live.  She has changed four times in three years. 

   ·Given [Child 1]’s age, the parents let her choose where she wants to live.  When she is living with one parent, she still stays with the other parent on some weekends and at ‘adhoc’ times.

   ·When she rang Child Support in April 2019, [Child 1] had told her that she wanted to live with Ms Gorbold, but within three weeks she had changed her mind.

   ·[Child 1] spoke to Ms Gorbold about the proposed change on 11 March 2019 (Ms Gorbold provided a text message from [Child 1] supporting this statement).

   ·[Child 1] stayed with Ms Gorbold on 2 April 2019 for one night and then did not stay again until 29 April 2019.

5. Mr Hurst did not dispute Ms Gorbold’s evidence.

6. The tribunal was satisfied that as at 2 May 2019 when the original decision was made, the likely pattern of care was going to be predominantly with Mr Hurst and no change of care should be made.

7. Since the original decision, there have been two further change in care applications as [Child 1] changed her mind again, and these are being actioned by Child Support.

8. Ms Gorbold also stated that she has always had more than 14% care and Mr Hurst did not dispute this.  After Mr Hurst left the hearing, Ms Gorbold explained that she would often have [Child 1] for more than 2 nights per fortnight and her records indicate that from 10 December 2018 to 2 May 2019, she had [Child 1] in her care for 32 nights (the tribunal noted she only had [Child 1] in her care for 2 nights from 2 April to 30 April 2019).  The tribunal noted that Ms Gorbold has the option of objecting to the decision made on 21 December 2018 to assess her as only having 14% care.

1. For these reasons, the decision under review is affirmed.

DECISION

The decision under review is affirmed.