Herdman and Catleugh (Child support)

[2024] AATA 781

Herdman and Catleugh (Child support) [2024] AATA 781 (6 February 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/AC026990

APPLICANT:  Dr Herdman

OTHER PARTIES:  Child Support Registrar

Ms Catleugh

TRIBUNAL:Member J Bakas

DECISION DATE:  06 February 2024

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – 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. Dr Herdman and Ms Catleugh are the separated parents of [Child 1] and [Child 2], in respect of whom a child support assessment is in place. The application for review before the Tribunal is only in relation to [Child 1].

2. Dr Herdman and Ms Catleugh have had a registered child support assessment for [Child 1] since 10 July 2023.

3. On 10 July 2023 Ms Catleugh advised Services Australia (Child Support) that the care for [Child 1] was 65% to her and 35% to Dr Herdman, and on 26 August 2023 Child Support made a decision to reflect the care for [Child 1] as 65% to Ms Catleugh and 35% to Dr Herdman.

4. On 6 September 2023 Dr Herdman lodged an objection to this decision as his position was that the care was 50% to each parent.

5. On 4 October 2023 Child Support disallowed Dr Herdman’s objection.

6. Dr Herdman sought a review in the Tribunal on 1 November 2023.

7. The matter was heard on 6 February 2024. Dr Herdman attended the hearing in person and Ms Catleugh attended by MS Teams and both gave affirmed evidence.  At hearing both parties confirmed receipt of documents provided by Child Support.

ISSUE

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act 1988 (the Registration Act).

2. The issue which arises in this case is what care percentages reflect the likely pattern of care for [Child 1] from 10 July 2023?

CONSIDERATION

1. Child Support generally makes child support assessments using a statutory formula in Part 5 of the Assessment Act. This formula includes a care percentage and an associated cost percentage for each parent in relation to each child.

2. Child Support decides each parent’s care percentage in line with sections 49 to 54L of the Assessment Act. These provisions require Child Support to decide each parent’s care percentage when first making a child support assessment and to revoke and remake those decisions in specific circumstances.

3. Sections 49 and 50 of the Assessment Act require Child Support, or here the Tribunal, to determine the likely pattern of care for a child during a care period that is considered appropriate, usually 12 months. A care period begins on the day the actual care of a child began or changed and the same care arrangements are assumed to apply for the care period unless Child Support is otherwise advised.

4. The term “pattern of care” is not defined in the legislation.  It involves an examination of a person’s future likely care.  The care period is such a period as the Registrar considers to be appropriate having regard to all the circumstances (subparagraph 50(1)(b)(ii) of the Act). The government policy in this regard, as set out in chapter 2.2.1 of the Child Support Guide (the 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 and the Tribunal can determine a different care period.

What care percentages reflect the likely pattern of care for [Child 1] from 10 July 2023?

1. I note that the hearing papers and the evidence of the parties at the hearing indicate there has been a change of care to 50% to each parent from 30 July 2023. However, this subsequent care event is not before the Tribunal. The Tribunal needs to consider what the correct or preferable decision is in regard to the care that was notified on 10 July 2023, which would stay in place until there is a further care change.

15.Dr Herdman’s evidence and submissions included the following:

·Since the parent’s separation, care has been 50/50 but there have always been sporadic variations on an ad hoc basis such as when [Child 1] was ill or wanted to stay with friends.

·He had a discussion with [Child 1] in the first week of July 2023 at which time he expressed that he wished to have equal time with her and she agreed. The care was always supposed to be 50/50 but [Child 1] would spend more time at her mother’s house.

·He agrees that prior to 10 July 2023 care was less than 50% to him even though the intention was always to have 50/50 care.

·On 22 August 2023, Child Support left him a message but he never received it.

·He contacted Child Support when he received the decision dated 6 September 2023.

·Between 10 July 2023 and 30 July 2023 [Child 1] had spent 2 extra nights with Ms Catleugh which he says is consistent with a care finding of 50/50.

16.Ms Catleugh’s evidence and submissions included the following:

·[Child 1] has been staying with her more than 50% of the time in the months leading up to 10 July 2023. She disputes ever telling Child Support that the care was 50/50 until 30 July 2023.

·She also disputes ever agreeing with Dr Herdman that care will be 50/50. She is aware that he put pressure on [Child 1] to stay with him 50% of the time.

1. I note that at the hearing while there was no dispute that Ms Catleugh had extra care in the months leading up to 10 July 2023, there was a dispute about the number of nights care.

2. For the sake of completion I note that Ms Catleugh submitted a document just prior to the hearing that was not exchanged with Dr Herdman due to time constraints. This document and its contents were discussed at the hearing and Dr Herdman stated that he did not require a copy of the document prior to the Tribunal’s decision as he was not disputing that [Child 1] had stayed with Ms Catleugh more than 50% of the time from March 2023 up to and including July 2023.

3. Accordingly to Ms Catleugh, [Child 1] was in her care for 20 nights in April 2023 (5 extra nights on top of 50/50 care), 18 nights in May 2023 (one extra night), 25 nights in June 2023 (9 extra nights) and 20 nights in July 2023 (5 extra nights).

4. According to Dr Herdman, there is no dispute regarding May and June but he says there were only 3 extra nights in April and 7 in June 2023.

5. It is clear from all of the evidence that the care occurring was not 50% to each parent prior to 10 July 2023. There is also insufficient evidence that Ms Catleugh agreed to 50% care from 10 July 2024, until the subsequent care change on 30 July 2023.

6. I am not satisfied that as of 10 July 2023 both parents had decided that the care percentage will be 50% to each. Accordingly I consider that it is appropriate to decide the care percentage from 10 July 2023 by looking at the care occurring in the previous 3 months from 10 April 2023 to 10 July 2023, in order to establish the likely future pattern of care.

7. I find that based on Ms Catleugh’s care calendar, she had 61 of 91 days of care in this period. This equates to 67% care. I also find that there are 4 nights of care in dispute by Dr Herdman in this period. If I find that the care by Ms Catleugh was 57 out of the 91 days then this equates to 63%.   I note the objections officer found a care percentage of 65% which I find appropriate in the circumstances.

8. Having considered all the evidence available to me, I am satisfied that the likely pattern of care based on the care in the months leading up to the child support assessment dated 10 July 2023 reflects a care percentage of 65% for Ms Catleugh and 35% for Dr Herdman, which is the percentage of care found by the objections officer.

DECISION

The decision under review is affirmed.