Jackman and Harper (Child support)

[2020] AATA 2171

Jackman and Harper (Child support) [2020] AATA 2171 (28 May 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/MC018882

APPLICANT:  Ms Jackman

OTHER PARTIES:  Child Support Registrar

Mr Harper

TRIBUNAL:Member J Longo

DECISION DATE:  28 May 2020

DECISION:

The tribunal sets aside the decision and, in substitution, decides that Ms Jackman has a percentage of care of 65% for [Child 1] and Mr Harper has a percentage of care of 35% for [Child 1] from 20 September 2019.

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 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.Ms Jackman and Mr Harper are the parents of [Child 1]. Mr Harper is the parent liable to pay child support.

2.On 25 June 2019, the Department of Human Services – Child Support (the Department) determined that Ms Jackman had a percentage of care of 74% for [Child 1] and Mr Harper had a percentage of care of 26%.

3.Mr Harper lodged a change in care with the Department on 28 October 2019, stating that the care of [Child 1] had changed from 20 September 2019 due to new court orders being made between the parties. On 21 December 2019, the Department determined that Ms Jackman had a percentage of care of 66% for [Child 1] and Mr Harper had a percentage of care of 34% for [Child 1] from 18 September 2019.

4.On 3 January 2020, Mr Harper lodged an objection to the decision, stating that the new determination of care for [Child 1] had not been calculated correctly and that he had 36% care (268 nights) based on the court orders over two years. On 29 April 2020, the Department allowed the objection and made a determination that Ms Jackman had a percentage of care of 64% for [Child 1] and Mr Harper had a percentage of care of 36% for [Child 1] from 20 September 2019.

5.On 29 April 2020, Ms Jackman lodged an application to the Administrative Appeals Tribunal (the tribunal) for a review of the decision. The hearing took place on 28 May 2020. Ms Jackman and Mr Harper spoke to the tribunal via conference telephone and gave sworn evidence. In making its decision the tribunal took into consideration the documents provided by the Department (217 pages), which were also sent to Mr Harper and Ms Jackman.

CONSIDERATION

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

What is the care of [Child 1]?

7.It is not in dispute that the Department had recorded that the care of [Child 1] was Ms Jackman having 74% and Mr Harper having 26% of the care from 25 June 2019. It is also not in dispute that on 28 October 2019 Mr Harper contacted the Department to advise that the care for [Child 1] had changed according to new court orders made on 20 September 2019. A copy of the orders was provided to the Department and in the documents before the tribunal. Ms Jackman and Mr Harper both confirmed that these were final court orders made in relation to the care of [Child 1].

8.Ms Jackman’s submission to the tribunal was that the calculation of care for [Child 1] was incorrect over the 24-month period to determine the care period and it did not factor in the content of the orders. Ms Jackman confirmed that the court orders have been followed and there has not been any variation from the orders since they were made. She stated that Mr Harper’s care of [Child 1] over this period was 258 nights out of 731 nights, which equates to 35% of the care and not 36% of the care as calculated. Ms Jackman confirmed that Mr Harper has [Child 1] Friday night until Monday morning (three nights) each alternating weekend and every Wednesday night until Thursday morning. This equates to five nights per fortnight. In regard to the school holidays, the care occurs as follows:

·     From start of term 2 holiday period until 12pm day prior to the start of term 3 school period starting in 2020 and every alternate year thereafter;

·     From start of term 1 holiday period until 12pm day prior to the start of term 2 school period starting in 2021 and every alternate year thereafter;

·     From start of term 3 holiday period until 12pm day prior to the start of term 4 school period starting in 2021 and every alternate year thereafter;

·     From 5pm 29 December 2020 until 5pm 19 January 2021 and each alternate year thereafter;

·     From 4pm 25 December 2019 until 4pm 26 December 2019 and each alternating year thereafter;

·     From 24 December 2020 until 4pm 25 December 2020 and each alternating year thereafter;

·     From 5pm on day prior to Father’s Day until 5pm Father’s Day;

·     Such other days as agreed in writing.

9.Mr Harper submitted that he had a care percentage of 36% and that Ms Jackman had a care percentage of 64% from 20 September 2019. Mr Harper calculated that [Child 1] was in his care 127 nights for the period 19 September 2019 to 19 September 2020 according to the calendar provided to the department.  Ms Jackman calculates that Mr Harper had 258 nights of care out of 731 nights between 20 September 2019 and 20 September 2021, which she submits equates to 35% care of [Child 1].

10.The tribunal notes that there are 41 weeks each year during school term. The remainder are school holiday periods. Mr Harper’s fortnightly alternating care during school periods, according to the court orders, are suspended during the school holiday period and resume once school resumes. Mr Harper’s care during school holiday periods, according to the court orders, commences at the end of the last day of school until 12 pm of the day prior to the commencement of school. In Mr Harper’s calculations[1], he has included the Sunday night, that is, the last night of the school holidays, in the calculations. This night should not be included as care ends at 12 pm of that day. In addition, Mr Harper’s calculation restarts the school care period in January 2021 prior to the commencement of school. The calculations by Mr Harper amount to 268 nights of care. This is incorrect as it takes into account 7 additional nights of care, as calculated by the tribunal, which do not form part of Mr Harper’s care based on the court orders. The care determined by the tribunal is 261 nights of care for the period from 20 September 2019 to 19 September 2021.

[1]Pages 115 to 130 of the subsection 37(1) Statement and Documents provided by the Department.

11.Section 50 of the Act requires a new determination of a percentage of care to be made where the tribunal is satisfied either that the person has had, or is likely to have, a pattern of care during a care period as considered to be appropriate having regard to all the circumstances.

Should the existing care determinations in relation to [Child 1] be revoked?

12.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. Mr Harper notified the Department that the care taking place did not correspond with the existing care of [Child 1] from 20 September 2019.

13.In this case, the tribunal has determined that a care determination was made under section 50 of the Act from 25 June 2019 and that Mr Harper had a percentage of care for [Child 1] of 26% and that Ms Jackman had a percentage of care of 74% for [Child 1]. 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 [Child 1], 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)).

14.The tribunal is required to consider what the actual care of [Child 1] was or is likely to be during the care period. The care period is such a period as the Child Support Registrar considers appropriate having regard to all the circumstances (section 50 of the Act). The Department’s policy, 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. The tribunal considers that, in the circumstances of this case, an appropriate care period is the period from 20 September 2019, being the date the change to care arrangements occurred and that the period should be a 24-month period, which would allow for the specific arrangements and take into account the alternating odd and even year arrangements for [Child 1’s] care as specified in the court orders.

15.The tribunal has therefore determined, as stated above, that the care should be changed from 20 September 2019 to reflect that [Child 1] was in Ms Jackman’s care for 65% of the time and in Mr Harper’s care 35% of the time, based on the court orders. Accordingly, the previous determination of care is revoked from 19 September 2019 and a new determination made from 20 September 2019.

16.As Mr Harper notified of the change in care on 28 October 2019 and Mr Harper is the parent liable to pay child support, the care change occurs on the date Mr Harper notified of the change and is a notification of an increase in care. For Ms Jackman, the care change occurs from 20 September 2019 even though it is more than 28 days from the date the change. this is because Ms Jackman’s care has reduced.

DECISION

The tribunal sets aside the decision and, in substitution, decides that Ms Jackman has a percentage of care of 65% for [Child 1] and Mr Harper has a percentage of care of 35% for [Child 1] from 20 September 2019.