Gurung and Gurung (Child support)

[2020] AATA 2131

Gurung and Gurung (Child support) [2020] AATA 2131 (4 May 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/MC018526

APPLICANT:  Mr Gurung

OTHER PARTIES:  Child Support Registrar

Ms Gurung

TRIBUNAL:Member C Breheny

DECISION DATE:  04 May 2020

DECISION:

The decision under review is set aside and a decision substituted that Mr Gurung has 71% care of [Child 1] and Ms Gurung has 29% care from 2 November 2019.

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 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 Gurung and Mr Gurung are the separated parents of [Child 1], born October 2002. Since 1 February 2019 child support has been payable on the basis that Ms Gurung has 86% and Mr Gurung has 14% care of [Child 1]. Mr Gurung was assessed as liable to pay child support to Ms Gurung.

2. On 18 November 2019 Mr Gurung contacted the Department of Human Services – Child Support (the Department) to notify a care change from 2 November 2019, such that Mr Gurung now had 72% and Ms Gurung had  28% care of [Child 1]. On 12 December 2019 a decision was made to accept the care change reported by Mr Gurung and, as a result, Ms Gurung became the parent liable to pay child support.

3. On 2 January 2020, Ms Gurung objected to the decision stating that Mr Gurung had “one-off” additional care in November 2019 but there was no care change. On 28 February 2020, an objections officer of the Department decided to allow the objection, noting there had been no evidence from either party and there was no reason to change the existing care.

4. On 2 March 2020, Mr Gurung 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 14 April 2020. Mr Gurung attended the hearing by conference telephone and gave evidence on affirmation. Ms Gurung could not be contacted at the appointed time and did not participate in the review. 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 section 37 of the Administrative Appeals Tribunal Act 1975, received on 23 March 2020 (documents numbered 1–86).

5. On 14 April 2020 I deferred making a decision, as Mr Gurung provided additional evidence in support of his case (marked A1-A44). These documents were provided to Ms Gurung for comments, but as at the date of this decision no comments have been received from Ms Gurung.

ISSUES AND CONSIDERATION

1. The relevant legislation is the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988.

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 child support liability had been calculated on the basis that Ms Gurung had 86% care and Mr Gurung had 14% care of [Child 1] since 1 February 2019 (folio 75). Records also show that Mr Gurung contacted the Department on 18 November 2019 to advise that a care change had occurred on 2 November 2019.

2. Mr Gurung stated that he had moved into a new home and [Child 1] decided that she would spend more time at his place, as it was more convenient for school. [Child 1] is 17 years old and she decided where she wanted to stay, so there was no clear pattern of care. Since November 2019 she has stayed mostly at his place though, apart from her trip to [Country 1] from 24 December 2019 to 25 January 2020.

3. [Child 1] returned to her mother’s home on 25 January 2020, but only stayed there for three nights before returning to his place on 28 January 2020. Mr Gurung noted that [Child 1] might now only spend one night per month with her mother.

4. Ms Gurung stated in her objection to the initial care decision that [Child 1] went to stay with Mr Gurung on Melbourne Cup day and stayed until 8 December 2019. This was “one-off” extra care, as [Child 1] was going on a trip to [Country 1]. [Child 1] would return to her (Ms Gurung’s care) on 25 January 2020 (folios 39/40).

Other evidence

1. Mr Gurung provided various text messages between [Child 1] and him indicating that she was staying at his place on 8 December 2019 (folio A32) and until 15 December 2019, returning to Ms Gurung’s home on 16 December 2019 (folio A36). There are further text messages indicating that [Child 1] was back at Mr Gurung’s home on 28 January 2020 (folio 40).

2. Mr Gurung provided a calendar showing that in the five and a half month period from 1 November 2019 to 13 April 2020 (a period of 165 nights) [Child 1] spent 49 nights in Ms Gurung’s care, which includes the holiday in [Country 1] of 34 nights (folio A15).

3. Mr Gurung also provided copies of envelopes from [Bank 1] and [Child 1]’s driver’s licence showing that his home was now [Child 1]’s home address (folios A9-A13) and a text message from Ms Gurung of 22 March 2020, which states: “I have no interest to fight over child support” (folio A8).

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 it may be a shorter period depending on the circumstances of the case.

2. There is no dispute that Mr Gurung notified a care change from 2 November 2019. Both parties appear to agree that Mr Gurung had increased care from early November 2019. I am persuaded that the relevant care period for this case should be the 165-day period from 1 November 2019 to 13 April 2020.

3. Based on the calendar provided by Mr Gurung, Ms Gurung had 29% care of [Child 1] in that period, including the holiday period in [Country 1]. Ms Gurung was provided with the opportunity to refute this evidence, but she did not provide a response.

4. I note that Mr Gurung provided an updated calendar (to 3 May 2020) very recently (folio A44). This shows that Ms Gurung had no further care of [Child 1] after 13 April 2020. I have calculated that Ms Gurung would have 26% care of [Child 1] for the care period 1 November 2019 to 3 May 2020 (a period of 185 nights). This however does not alter the cost percentage according to section 55C of the Act and therefore has no impact on the assessment. I have therefore disregarded this very recent evidence.

5. On the basis of the evidence before me, I thus find that Mr Gurung has 71% and Ms Gurung has 29% care of [Child 1] from 2 November 2019, the care change date provided by Mr Gurung. I have included the holiday in Ms Gurung’s care, as she had told the Department that she had paid for the trip

6. This is a different conclusion as that of the objections officer and I therefore set aside the decision under review.

DECISION

The decision under review is set aside and a decision substituted that Mr Gurung has 71% care of [Child 1] and Ms Gurung has 29% care from 2 November 2019.