Heston and Ketchum (Child support)

[2023] AATA 3739

Heston and Ketchum (Child support) [2023] AATA 3739 (5 October 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/PC026179

APPLICANT:  Ms Heston

OTHER PARTIES:  Child Support Registrar

Mr Ketchum

TRIBUNAL:Member J Thomson

DECISION DATE:  5 October 2023

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that new percentages of care for [the child] of 10% to Mr Ketchum and 90% to Ms Heston should apply in the assessment from 3 February 2023.

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. Ms Heston and Mr Ketchum are the parents of [the child], born 2009.

2. Ms Heston seeks review of an objection decision made by Services Australia (Child Support) on 26 May 2023. This decision disallowed her objection to an earlier decision made by Child Support on 22 March 2023 to refuse to reflect the care of [the child] as 13% to Mr Ketchum and 87% to Ms Heston from 3 February 2023, notified on 3 February 2023.

3. The Tribunal heard the matter on 5 October 2023. Both parents attended the hearing via conference telephone and gave affirmed evidence. The Tribunal had before it documentation provided by Child Support (folios 1 to 115), admitted into evidence and marked Exhibit 1. Both parents had copies of these documents with them at the hearing.

ISSUES

1. The statutory provisions relevant to this review are found in the Child Support (Assessment) Act 1989 (the Act). Sections 49 and 50 of the Act provide for new care decisions to be made. Section 49 applies, relevantly, if the parent:

   has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances.

   Section 50 applies, relevantly, if the parent:

   has had, or is likely to have a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances.

2. The issues which arise in this case are:

   ·      Has there been a change in the pattern of care for [the child] which requires the existing percentages of care to be revoked and a new care percentage determination made? And, if so,

   ·      From what date should the new percentages of care determination apply?

CONSIDERATION

1. In reaching its decision, the Tribunal has considered the affirmed evidence given by the parents at the hearing and the documentation contained in Exhibit 1 before the Tribunal at the hearing.

2. Ms Heston notified Child Support of a change in care for [the child] on 3 February 2023. Prior to her notification the care percentages being assessed by Child Support were 14% to Mr Ketchum and 86% to Ms Heston from 18 November 2022, notified on 13 December 2022.

3. To consider whether there has been a change in the pattern of care and whether the existing care percentages should be changed, it is necessary to examine the actual or likely pattern of care being had by the parents by reference to an appropriate care period. Child Support generally considers a care period of 12 months to be appropriate. However, as a later determination of the care percentages for [the child] was made on 22 August 2023 (see pages 102 to 105 of Exhibit 1) effective in the assessment from 9 May 2023, the Tribunal will therefore consider a care period from 3 February 2023 to 8 March 2023 as the appropriate care period in this case.

4. Ms Heston gave evidence that she had maintained a record of the care the parents were having of [the child] from January 2023 throughout the remainder of the 2023 calendar year. These calendar records were before the Tribunal at pages 70 and 101 of Exhibit 1.

5. She gave evidence that she had notified Child Support of a change in care on 3 February 2023 consequent upon a change in Mr Ketchum’s fly in/fly out work roster which provided that he would be working a three weeks on/one week off shift which would no longer coincide with the care pattern he had been having prior to 3 February 2023 of two nights of care per fortnight plus some holiday care, and that the likely pattern of care he would be having from February 2023 onward would be regulated to two nights of care every three weeks.

6. Neither parent disputed that Mr Ketchum’s pattern of care of [the child] up until 3 February 2023 was generally two nights of care per fortnight, and both parents agreed and acknowledged that there had been a further care percentage determination by Child Support on 22 August 2022, determining the care percentages for [the child], effective in the assessment from 9 May 2023 of 9% to Mr Ketchum and 91% to Ms Heston. Both parents acknowledged this determination was currently the subject to objection by Mr Ketchum and not part of the decision under review by the Tribunal.

7. Mr Ketchum gave evidence that he had not maintained records of the care he was having of [the child] for the period under consideration in this case and acknowledged and agreed that he was not in a position to challenge the accuracy of Ms Heston’s calendar records at pages 70 and 101 of Exhibit 1, save and except with respect to two nights of care on 31 March 2023 and 1 April 2023 reflected as nights of care had by him in the calendar at page 70 but not accorded to him in the calendar at page 101.

8. At the hearing, Ms Heston acknowledged and agreed that Mr Ketchum had care of [the child] on the nights of 31 March  and 1 April 2023, and Mr Ketchum acknowledged and agreed that the nights of care recorded for the months of February, March and April  2023 in Ms Heston’s care calendar at page 101 of Exhibit 1 plus the two additional nights of care referred to earlier in this paragraph was an accurate record of the nights of care he had in that period.

9. Mr Ketchum acknowledged and agreed that although he was available to have care of [the child] in May 2023, he did not have any care in that month because the child was not made available to him. At page 64 of Exhibit 1 Ms Heston is recorded as informing [a Child Support officer] on 17 May 2023 that [the child] (age 13 at that time) had not gone to stay with Mr Ketchum on the previous Thursday, 11 May 2023 to Sunday 14 May 2023 because of her personal anxiety issues. The Tribunal accepts Ms Heston’s evidence and is satisfied she was not withholding care of the child.

10. The Tribunal is satisfied there was a change in Mr Ketchum’s pattern of care of [the child] on 3 February 2023 from two nights of care per fortnight to two nights of care on an approximately three weekly cycle with additional care for four nights during the April school holidays, 19 April to  22 April 2023, and finds Mr Ketchum had a total of 10 nights of care over the period 3 February 2023 to 8 May 2023, a total of 95 nights, equating to 10% care of [the child] (10 / 95 x 100 = 10.52%, rounded down pursuant to section 54D of the Act to 10%).

11. The Tribunal is satisfied Ms Heston notified Child Support of the change in care within 28 days of the change in care date on 3 February 2023, and, pursuant to the provisions of subsection 54F(1) of the Act, revokes the pre-existing care percentages of 14% to Mr Ketchum and 86% to Ms Heston from 2 February 2023, the day before the date of notification on 3 February 2023, and determines new care percentages of 10% to Mr Ketchum and 90% to Ms Heston to apply from 3 February 2023. The Tribunal notes that as a subsequent care determination has been made by Child Support, these care percentages will be revoked and replaced with different care percentages from 9 May 2023.

12. As the Tribunal has reached a different conclusion to that reached by the objections officer in the decision under review, the Tribunal sets aside that decision and determines new care percentages of 10% to Mr Ketchum and 90% to Ms Heston should apply for [the child] from 3 February 2023.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that new percentages of care for [the child] of 10% to Mr Ketchum and 90% to Ms Heston should apply in the assessment from 3 February 2023.