Heaney and Heaney (Child support)

[2024] AATA 370

Heaney and Heaney (Child support) [2024] AATA 370 (8 January 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/BC026587

2023/BC026669

APPLICANT:  Ms Heaney

OTHER PARTIES:  Child Support Registrar

Mr Heaney

TRIBUNAL:Senior Member J Longo

DECISION DATE:  08 January 2024

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that Ms Heaney has a percentage of care of 57% for [the child] and Mr Heaney has a percentage of care of 43% for [the child] from 22 May 2023.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – 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 Heaney and Ms Heaney are the parents of [the child]. Mr Heaney is the parent liable to pay child support. On 4 June 2020 Ms Heaney made an application to register a child support assessment to Services Australia – Child Support (Child Support). As part of the application, Ms Heaney advised that [the child] was in her care 79% of the time and in Mr Heaney’s care 21% of the time. On 25 June 2020, Child Support made a determination of the care for [the child] as 79% care to Ms Heaney and 21% care for Mr Heaney from 4 June 2020.

2. On 22 May 2023, Mr Heaney lodged an objection in writing with Child Support objecting to a decision on 5 May 2023 regarding the percentages of care for [the child]. Child Support took Mr Heaney’s contact on 22 May 2023 as an objection to the care determination from 4 June 2020. On 7 August 2023, an objections officer allowed Mr Heaney’s objection and made a determination that [the child] was in Mr Heaney’s care 43% (158 nights) of the time and in Ms Heaney’s care 57% (207 nights) of the time from 16 February 2020, as notified on 4 June 2020.

3. On 15 August 2023, Ms Heaney lodged an application to the Administrative Appeals Tribunal (the Tribunal) for a review of the decision. A hearing took place on 8 January 2024. Ms Heaney and Mr Heaney spoke to the Tribunal via conference telephone and gave evidence under affirmation. In making its decision the Tribunal took into consideration the documents (numbered 1 to 98) provided by Child Support, which were also sent to Mr Heaney and Ms Heaney prior to the hearing.

CONSIDERATION

1. The law that applies in this case is the Child Support (Assessment) Act 1989 (the Act).

Has there been a change in the care of [the child]?

1. It is uncontroversial that the care arrangements for [the child] were, from 15 February 2020, reflected as 79% to Ms Heaney and 21% to Mr Heaney. Both Mr Heaney and Ms Heaney confirmed with the Tribunal that there were no court orders regarding [the child]’s care, but that they had made a parenting plan (which had not been registered with the court).

2. Ms Heaney and Mr Heaney both stated that even though there was a parenting plan in place, much of the decision making about where [the child] will stay has been made by him. This has resulted in changes in the care arrangements for [the child] based on what he decides. Ms Heaney stated that initially, Mr Heaney’s care increased on an inconsistent basis, but that Mr Heaney is now having around 43% as he has stated. The main issue, from her perspective, has been that the care was changed by Child Support from 2020 as the increase in the care did not start from this date.

3. Mr Heaney stated that when he contact Child Support, he didn’t ask it to change the care from 2020. He stated that he just wanted the care to be reflected correctly. Mr Heaney stated that he doesn’t do paperwork very well, as he has difficulty reading and writing, and so was unaware of the care until it was brought to his attention. Mr Heaney also confirmed that it is up to [the child] to decide where he stays, as it will depends on his plans. Mr Heaney further confirmed that he never wanted the care changed from 2020 and that this was initiated by Child Support. Mr Heaney further stated that he was happy for the change in care for [the child] being reflected from 2023.

4. Section 50 of the Act requires a new determination of a percentage of care to be made where an existing determination has been revoked and the Tribunal is satisfied either that the person has had, or is likely to have, a pattern of care during a care period.

Should the existing care determinations in relation to [the child] be revoked?

1. Subsection 54F(1) of the Act sets out certain circumstances in which a determination of a percentage of care must be revoked. Specifically, it states that an existing determination must be revoked if the Registrar is notified that the care taking place does not correspond with the responsible person’s existing care of the child or children.

10.In this case, the Tribunal has determined that a care determination was made under section 50 of the Act from 16 February 2020, as notified on 4 June 2020, and that Ms Heaney had a percentage of care for [the child] of 79% and that Mr Heaney had a percentage of care of 21% for [the child]. Therefore, paragraph 54F(1)(a) of the Act is satisfied. Section 50 of the Act provides that if the Tribunal revokes a determination and is satisfied that a party has had, or is likely to have, a pattern of care of [the child], the Tribunal must determine the percentage of care during the care period. ‘Actual care’ may be worked out based on the number of nights the child was or will be in the care of the person (subsection 54A(1)).

11.The Tribunal is required to consider what the actual care of [the child] was or is likely to be during the care period. The care period is such a period as the Child Support Registrar considers to be appropriate having regard to all the circumstances (section 50 of the Act). The  government’s policy, as followed by Child Support 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. This policy is not binding on the Tribunal but the Tribunal has determined that it is appropriate to consider the policy.

1. The Tribunal has determined, based on the evidence of both Mr Heaney and Ms Heaney, that the care for Mr Heaney and Ms Heaney changed from 22 May 2023, when Mr Heaney notified that the care for [the child] had changed. At the time of the notification, [the child] was in Mr Heaney’s care 43% of the time from this date and Ms Heaney’s care 57% of the time.

2. It is clear from both Ms Heaney’s and Mr Heaney’s evidence that [the child] was making decisions on where he would stay from prior to this period, but that both parents were happy for the change to occur from the date Mr Heaney notified Child Support. The Tribunal is satisfied that both Ms Heaney’s and Mr Heaney’s evidence indicates that the care had changed for [the child], from the date Mr Heaney notified Child Support of the care change on 22 May 2023. The Tribunal has therefore determined that the care change occurred from 22 May 2023, with Mr Heaney having 43% of care of [the child] from this date and Ms Heaney’s care being 57% for the purposes of child support.

3. As the Tribunal has changed the care determination from 22 May 2023, the previous care determination is revoked from 21 May 2023 and a new determination of Mr Heaney’s and Ms Heaney’s care is made from 22 May 2023. As the date of the change in care is the same date Mr Heaney notified of the change in care, there is both no requirement for the Tribunal to consider the date of effect based on when Child Support was notified of the care change and whether the date of effect of the objection decision would be subject to section 87AA of the Child Support (Registration and Collection) Act 1988. Consequently, the new care determination will commence from 22 May 2023.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that Ms Heaney has a percentage of care of 57% for [the child] and Mr Heaney has a percentage of care of 43% for [the child] from 22 May 2023.