Hancock and McAlistair (Child support)

[2019] AATA 4876

Hancock and McAlistair (Child support) [2019] AATA 4876 (16 August 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/BC016514

APPLICANT:  Mr Hancock

OTHER PARTIES:  Ms McAlistair

Child Support Registrar

TRIBUNAL:Member P Jensen

DECISION DATE:  16 August 2019

DECISION:

The decision under review is set aside and, in substitution, the original care decision to record Mr Hancock as providing 75% care and Ms McAlistair as providing 25% care to [Child 2] with effect from 16 July 2018 is affirmed.

The Tribunal’s decision has effect from 16 July 2018.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – percentage of care as originally reported was correct – 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

1. Mr Hancock and Ms McAlistair are the parents of [Child 1] and [Child 2]. A child support case was registered with the Department of Human Services – Child Support (“the CSA”) in 2006. This case concerns the parents’ recorded care of [Child 2]. From September 2016, Mr Hancock was recorded as providing 50% care to [Child 2]. Ms McAlistair has always been recorded as providing the balance of care and, for convenience, I will predominantly refer to Mr Hancock’s care.

2. On 19 July 2018, the following occurred. Mr Hancock informed the CSA that the parents had reached an agreement whereby he would be providing 75% care from 16 July 2018. The CSA phoned Ms McAlistair and she confirmed that Mr Hancock would be providing 75% care from 16 July 2018. The CSA decided to record Mr Hancock as providing 75% care with effect from 16 July 2018. The CSA wrote to both parents and informed them of its decision.

3. On 30 October 2018, Ms McAlistair objected to that decision. On 2 May 2019 an objections officer made two decisions:

• The objections officer varied the care decision so that Mr Hancock was recorded as providing 38% care with effect from 16 July 2018.

• The objections officer did not make a determination under subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 (because the objections officer concluded that there had not been special circumstances preventing Ms McAlistair from objecting within 28 days of being notified of the original care decision). The objections officer’s care decision therefore took effect from 30 October 2018.

1. Mr Hancock promptly sought review of the objections officer’s first decision. I heard the matter on 16 August 2019. I spoke to Mr Hancock and Ms McAlistair by conference phone.

2. As I explained during the hearing, care decisions are made pursuant to the Child Support (Assessment) Act 1989. Relevantly, section 54F provides for a revocation of the existing care decision and section 50 provides for the making of a new care decision if there has been a change in care. In determining whether there has been a change in care, the decision maker is required to ascertain the pattern of care each parent “has had, or is likely to have,” during the relevant care period. At the hearing, both parents confirmed that, as at 19 July 2018, they had expected Mr Hancock to provide 75% care on an ongoing basis. The original decision maker concluded that, as at 19 July 2018, it was likely that Mr Hancock would provide that percentage of care, and that conclusion was obviously correct. The objections officer’s care decision will be set aside and substituted with a decision to affirm the original care decision. Section 87AA of the Child Support (Registration and Collection) Act 1988 does not apply because the original care decision is being affirmed, but to avoid any possible misunderstanding, the Tribunal’s care decision will have effect from 16 July 2018: subsection 43(6) of the Administrative Appeals Tribunal Act 1975.

3. The substance of Ms McAlistair’s objection was that what had appeared likely as at 19 July 2018 did not come to pass, and she first advised the CSA accordingly on 30 October 2018. The CSA has not yet made a care decision in respect of that reported change in care.

DECISION

The decision under review is set aside and, in substitution, the original care decision to record Mr Hancock as providing 75% care and Ms McAlistair as providing 25% care to [Child 2] with effect from 16 July 2018 is affirmed.

The Tribunal’s decision has effect from 16 July 2018.