Harris and Ingram (Child support)

[2019] AATA 5101

Harris and Ingram (Child support) [2019] AATA 5101 (14 October 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/PC016693

APPLICANT:  Ms Harris

OTHER PARTIES:  Child Support Registrar

Mr Ingram

TRIBUNAL:Member W Budiselik

DECISION DATE:  14 October 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 – request to change the existing percentage of care determinations refused - 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 Harris (the applicant mother) and Mr Ingram (the father) are the parents of [(the child)] (born 2009).

2. On 7 May 2019, an objections officer from the Department of Human Services Child Support (the department) allowed an objection lodged by the father to a decision made by a departmental officer on 17 January 2019 that the applicant mother cared for the child for 66% of the time and the father cared for the child for 34% of the time from 20 December 2018. The objections officer set aside the decision and decided the child’s pattern of care had not changed and that the mother continued to care for the child for 51% of the time and the father cared for the child for 49% of the time.

3. On 6 June 2019, the applicant mother lodged an application for a review of the department’s decision with the Administrative Appeals Tribunal (the tribunal). On 14 October 2019, the tribunal conducted a hearing into the application. The parents participated in the hearing via telephone conference. Prior to the hearing, the department provided the tribunal and the applicant with a bundle of documents taken from the applicant’s Centrelink file (folios 1–91).

ISSUES

1. The statutory provisions relevant to this review are contained in the Act.

2. The issues that arise in this case are:

   a)    Has there been a change to the child’s pattern of care?; If so,

   b)    Should the percentages of care attributed to the parents be revoked?; If so,

   c)    What are the new percentages of care?

CONSIDERATION

Issue a): Has there been a change to the child’s pattern of care?

1. The legislation establishes a system for the assessment of the rate of child support payable in a particular child support case. The percentage of care for a parent of the child affects the annual rate of child support assessed and payable in each case. A parent’s percentage of care is determined under section 49 or 50 of the Assessment Act. This requires consideration of the actual, or likely, pattern of care that the parent will have in relation to the child.

2. The term “pattern of care” is not defined in the legislation. In determining the pattern of care, the decision-maker must consider the actual care of the child in the care period. The “care period” is the period which the decision-maker considers is appropriate having regard to all the circumstances of the case. The department’s online policy guide, the Child Support Guide (the Guide), states that a care period is generally a 12-month period from the day on which the actual care of a child began or changed. The tribunal is not bound by policy. However, in Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, the Full Court of the Federal Court held that a tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. In this case, the tribunal accepts that the policy in the Guide is consistent with the objects of the Assessment Act and that it assists the tribunal in making determinations under the legislation in relation to the care provided by the parties for the children.

3. Prior to 19 December 2018, the applicant mother was attributed with 51% of the child’s care and the father was attributed with 49% of the child’s care. On 17 January 2019, the mother advised the department the child’s pattern of care had changed from 20 December 2018.

4. The applicant mother advised the tribunal that prior to June 2018, she had the majority of the child’s care. She said that when she commenced training for employment she asked the father to assist her by him providing additional care for the child. She said she did not realise the father intended to notify the department about the changed care arrangement.

5. The applicant mother said she commenced providing additional care for the child on 20 December 2018 during the child’s school holiday and when she was on holiday herself, and that she anticipated continuing to provide that level of increased care after the school holidays concluded and she was approved to reduce her working hours.

6. The father said he was aware the mother hoped to reduce her working hours but that she had not been approved to reduce her working hours on 20 December 2018 (the approval was obtained in June 2019).

7. The tribunal reviewed calendars provided by the parents. The parents did not disagree (other than an odd day) about the dates when the child was in each other’s care. If the care percentage was calculated in the period 28 December 2018 to 7 February 2019 (32 nights), the mother’s percentage of care increased. However, if the care percentage was calculated over a longer period (20 December 2018 to 31 March 2019), the care percentage reverted to shared care.

8. The tribunal explained it is required to anticipate the pattern of the child’s care for a forthcoming period (usually a year), based on what is known at the time the changed pattern is reported.

9. In this case, on 20 December 2018, the mother’s changed work hours had not been approved by her employer, and the overall pattern of care was likely to revert to the former pattern once the school holidays were completed and she returned to full-time employment.

10. In these circumstances, the tribunal was not satisfied there had been a change to the child’s care pattern from 20 December 2018.

11. The tribunal notes the mother’s reduced working hours were subsequently approved and the department accepted a changed care notification from 10 June 2019, where the mother was attributed with 60% of the child’s care and the father with 40% of his care.

12. Given the tribunal has found the care pattern did not change on 20 December 2018, it does not need to consider the other issues set out in paragraph 5 of these reasons for decision.

DECISION

The decision under review is affirmed.