Hee and Wasim (Child support)

[2019] AATA 6618

Hee and Wasim (Child support) [2019] AATA 6618 (9 December 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/BC016845

APPLICANT:  Mr Hee

OTHER PARTIES:  Child Support Registrar 

Miss Wasim

TRIBUNAL:Member R King

DECISION DATE:  9 December 2019

DECISION:

The tribunal affirms the decision under review.

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 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 Hee and Miss Wasim are the parents of [Child] (aged 11 years).  [In] January 2019, the Child Support Agency (CSA) recorded the care of [Child] as being 30% with Mr Hee and 0% with Miss Wasim, with the remainder of [Child]’s care being with Miss Wasim’s parents.  The date of effect of this care percentage was 28 December 2018, when Miss Wasim advised the CSA that she was commencing an extended period of intensive treatment and rehabilitation. 

2. [In] March 2019, Miss Wasim objected to the care percentage decision for [Child], telling the CSA that the treatment had not proceeded, and that she had ongoing care of [Child].  

3. [In] June 2019, an objections officer set aside the decision and partly allowed Miss Wasim’s objection.  The objections officer accepted the evidence of both parents that the care of [Child] was shared between Miss Wasim and Mr Hee.  The objections officer found that Miss Wasim had 51% of [Child]’s care and that Mr Hee had 49% of [Child]’s care.  Although Miss Wasim objected to the original decision more than 28 days after receiving notification of the original decision, the objections officer was satisfied that there were special circumstances that prevented her from lodging an earlier objection.  As a result, the new care percentages had effect from 2 January 2019.

4. [In] July 2019 (within 28 days of receiving the objection decision), Mr Hee applied to the tribunal for review.  

5. The tribunal conducted hearings on 9 September 2019 and 9 December 2019.  Mr Hee and Miss Wasim both participated by conference telephone and provided sworn evidence. 

CONSIDERATION

1. Mr Hee confirmed that there is no court order or formal parenting plan regarding the care of [Child].  Both Mr Hee and Miss Wasim confirmed that the intention has been to share care equally but that there is some flexibility that takes into account both [Child]’s needs and activities and their own commitments.

Application of the law

1. The relevant provisions are contained in the Child Support (Assessment) Act 1989 (“the Act”). The Child Support Guide contains detailed policy guidelines for CSA officers to use when applying the Act. The tribunal is not bound by these guidelines but, for the sake of consistency in decision-making, the tribunal follows the guidelines, unless it would be clearly inconsistent with the proper application of the law to do so.

2. Under section 50 of the Act when a person applies the Child Support Agency for an assessment, the pattern of care must be determined, and a care percentage recorded for each parent.

3. Section 54F of the Act requires that, when the CSA becomes aware that the actual care of a child does not correspond with a care percentage determined under section 50, the original care percentage determination is revoked and a new care percentage determined that does correspond with the actual percentages of care provided by each parent. If the CSA is notified or becomes aware that the actual care percentages do not reflect the original section 50 determination more than 28 days after the original determination, the section 54F determination has effect from the date of notification or the date when the CSA first became aware that the original determination did not reflect actual care percentages.

4. Under section 54A of the Act, the starting point for any determination of care percentage is the number of nights of care provided by each parent over a designated care period. The Child Support Guide advises that hours of care may be taken into consideration if there is a risk that a calculation based solely on nights misrepresents the level of care provided. As child support payments defray the cost of care, consideration must be given to the extent to which a pattern of care is consistent with the cost of care.

5. Subsequent to the initial hearing, Mr Hee provided a copy of diary entries that recorded nights that [Child] stayed with him during 2019.  Miss Wasim was provided with this evidence and made written submissions, which were discussed at the second hearing.  Over the course of this hearing, Mr Hee and Miss Wasim reached broad agreement about the dates when [Child] was in their respective care. 

6. The dates of care agreed by Mr Hee and Miss Wasim indicated some variability, from month to month, but were consistent with equally shared care, with some flexibility as to arrangements for specific periods and reasons.  The dates accord with the finding of the objection officer that care of [Child] was shared equally between Mr Hee and Miss Wasim.  The tribunal finds accordingly.

7. Subsequent to the hearing, Mr Hee told the tribunal that he would be satisfied if the care of [Child] had been recorded as 50% with him and 50% with Miss Wasim.  The tribunal made some enquiries to find out why the care had been recorded as 49% with Mr Hee and 51% with Miss Wasim.  The tribunal was advised that the care percentage recording software used by the CSA does not allow a recording of 50% for each party and that a care percentage of 49% is the same as a care percentage of 50% for purposes of determining the amount of child support payable by the parent liable for payment.

8. The tribunal is satisfied that the decision of the objection officer to record Mr Hee’s care of [Child] as 49% is based on a finding of equally shared care. 

9. The tribunal accepts the objection officer’s finding that special circumstances prevented Miss Wasim from lodging an objection to the original decision within 28 days.

10. It follows that the tribunal sees no basis for disturbing the decision of the objection officer. 

DECISION

The tribunal affirms the decision under review.