Houchen and Child Support Registrar (Child support)

[2021] AATA 4525

Houchen and Child Support Registrar (Child support) [2021] AATA 4525 (28 September 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/AC021964

APPLICANT:  Mr Houchen

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member M Manetta (Presiding),

Member M Kennedy.

DECISION DATE:  28 September 2021

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the objection is disallowed.

This means that the care percentage determination in effect from 5 June 2021 reflects Mr Houchen having 7% care.

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 – not appropriate to determine care percentage by reference to hours – 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. Prior to 5 June 2021, Mr Houchen and Ms Bayntun had the care of their daughter, [Child 1] in respective proportions of 0% and 100%. That changed as of 5 June 2021 when fresh court orders provided for Mr Houchen to have the care of his daughter one night per fortnight.

2. On 10 June 2021 the Child Support Agency made a fresh care percentage determination designed to reflect the change which attributed 7% care to Mr Houchen and 93% care to Ms Bayntun. On 1 July 2021, Mr Houchen objected to that decision. On 20 July 2021 his objection was allowed, and the new care percentages were varied so as to attribute 10% care to Mr Houchen and 90% care to Ms Bayntun.

3. Mr Houchen appealed to this Tribunal.

ISSUES

1. The issue which arises in this case is what are the correct care percentages to attribute to Mr Houchen and Ms Bayntun after 5 June 2021.

2. The statutory provisions relevant to this case are found:

   ·in sections 50, 54A and 54H of the Child Support (Assessment) Act 1989, which relate to the revocation of existing care percentage determinations and the making of fresh care percentage determinations; and

   ·in paragraph 2.2.1 of the Child Support Guide, which deals with the basis on which care percentage calculations are to be made.

CONSIDERATION

1. Under section 54H, where, as here, the pattern of actual care is at variance with an existing care percentage determination, the existing determination may be revoked. Under section 50, where an existing care determination is revoked, a fresh care percentage determination must be made having regard to the new pattern of care. The issue in this appeal is not whether the existing determination should be revoked but rather how the new pattern of care should be expressed in terms of a percentage.

2. The original percentage for Mr Houchen (7%) was based on his having one night’s care per fortnight over a care period of one year. The objection officer has decided that it was appropriate to depart from the general rule (which calculates care percentages by reference to nights in care) and recalculate Mr Houchen’s attribution by reference to hours in care and so increased the attribution to 10%.

3. Mr Houchen has the care of [Child 1] from 7.30am on the Saturday to 6.30pm on the Sunday. He contends that, practically speaking, this amounts to two days and should be treated the same as if he had the care of [Child 1] over Sunday night. He argued that there was no added effort in caring for [Child 1] overnight on Sunday and that, in fairness, he should be attributed with the equivalent of two nights care which increases his attribution to 14%. In addition, Mr Houchen argued that he had incurred a greater outlay in providing weekend meals and entertainment for his daughter than compared with weekday requirements, which were significantly lessened by the fact of her attendance at school during the week. He contended that imbalances of this kind should be reflected in the percentage of care calculation.

4. The general rule is set out in section 54A which provides:

   (1)  The actual care of a child that a person has had, or is likely to have, during a care period may be worked out based on the number of nights that the Registrar is satisfied that the child was, or is likely to be, in the care of the person during the care period.

5. In other words, the general rule is that the care percentage is based on the number of nights spent in care.

6. The administrative policy behind the legislation is set out in the Child Support Guide which states (at paragraph 2.2.1):

   Care other than in nights

   Generally, the number of nights a person cares for a child will be the best measure of their percentage of care. However, there may be some occasions where only counting the nights in care does not accurately reflect the caring arrangements for the child. For example, one parent may provide care every night while the other parent provides care from 8am to 6pm every weekday.

   In such cases, at the request of a parent or non-parent carer, the number of hours of care may be calculated for each carer in determining the pattern of care and then converted into a care percentage. The Registrar will take into account the information from each parent or non-parent carer about the care they provide and why they think nights or hours is the better measure of care.

7. The objection officer considered that it was appropriate to express the percentage of care based on hours rather than nights. It is not apparent to this Tribunal why that was thought to be so. Of course, there will be exceptional cases where calculation by reference to nights significantly distorts the true pattern of care, such as in the case of night-shift workers. Such circumstances will justify a departure from the normal rule; but these cases must be exceptional. The general rule must be presumed to have been fashioned taking into account the natural consequences of night-care versus day-care and weekend-care versus week-day care, in the ordinary case. In the Tribunal’s opinion, this case presents a normal picture of a fortnightly weekend care arrangement. There is no unusual feature in the circumstances of this case which distorts the true pattern of care or would otherwise warrant a departure from the normal rule of calculation, whether that be by counting hours or by counting days.

8. It follows that, in the Tribunal’s opinion there was no basis on which to depart from an attribution of 7% to Mr Houchen and 93% to Ms Bayntun. That percentage should be restored.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that the objection is disallowed.

This means that the care percentage determination in effect from 5 June 2021 reflects Mr Houchen having 7% care.