Jansen and Jansen (Child support)

[2020] AATA 1025

Jansen and Jansen (Child support) [2020] AATA 1025 (3 March 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/MC017915

APPLICANT:  Mr Jansen

OTHER PARTIES:  Child Support Registrar

Ms Jansen

TRIBUNAL:Member J D'Arcy

DECISION DATE:  3 March 2020

DECISION:

The decision under review is set aside so that from 26 November 2018 Ms Jansen has 65% of care of [Child 1] and [Child 2]; and from 29 July 2019 Mr Jansen has 35% of care of [Child 1] and [Child 2].

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. This review concerns the care percentages used in a child support assessment made by the Department of Human Services – Child Support (Child Support) for [Child 1] and [Child 2], the children of Mr Jansen and Ms Jansen.

2. From 9 April 2018 Child Support had calculated a care percentage of 72% to Ms Jansen and 28% to Mr Jansen for the care of the children.

3. On 29 July 2019 Mr Jansen reported a change in care for [Child 1] and [Child 2] following mediation at Family Relationship Centre, [City], and the preparation of a written agreement.

4. On 29 August 2019 Child Support made a decision to change the care percentages to 63% to Ms Jansen and 37% to Mr Jansen from 1 January 2019.

5. Ms Jansen objected to the decision on the basis that the care calculated under the parenting plan should be 126 nights to Mr Jansen from 1 January 2019.

6. On 14 November 2019 an objections officer allowed Ms Jansen’s objection changing the care percentage to 67% to Ms Jansen and 33% to Mr Jansen.

7. On 26 November 2019 Mr Jansen applied for a review of the decision to the Administrative Appeals Tribunal (the tribunal).

8. Child Support provided Mr Jansen and Ms Jansen and the tribunal with the subsection 37(1) of the Administrative Appeals Tribunal Act 1975 statement and documents (111 pages).

9. The hearing took place with Mr Jansen and Ms Jansen by telephone on 3 March 2020.

ISSUES

1. The issues which arise in this case are:

   ·      whether there should be a change to the care percentages used in a child support assessment for the period; and, if so,

   ·      what care percentages should be used? and

   ·      what is the date of the change to the care percentages?

CONSIDERATION

Has there been a change to the care pattern for [Child 1] and [Child 2]?

1. Mr Jansen provided a copy of a parenting plan dated 26 November 2018 prepared following family dispute resolution at Family Relationship Centre in [City].

2. The parenting plan covers a number of different aspects of parenting [Child 1] and [Child 2] but relevantly states that the children will regularly spend time with both parents on the basis of the following routine:

   (i)The children live with Mum and Dad as is indicated above.

   (ii)Dad will have the children for Day 2 and Day 3 of his rostered days off.

   (iii)When Day 1 falls on a Friday, Saturday or Sunday, Dad will have the children for three nights.

3. The issue concerning the pattern of care arose because Mr Jansen maintained that he had care of the children for 131 nights; Ms Jansen stated that he had care of the children for 126 nights; but child support only recorded care of 122 nights of care per year.

4. Mr Jansen is [an Occupation] and works shift work, four days on and four days off.

5. After some discussion, Mr Jansen and Ms Jansen agreed that Mr Jansen would have on average 130 nights of care per year, which is equivalent to 35% of care.

Should the existing care determinations be revoked?

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

2. Child Support makes determinations of each parent’s percentage of care under sections 49 to 54L of the Assessment Act. These provisions require Child Support to determine each parent’s percentage of care when it first makes a child support assessment and when it revokes a determination because of the changes in the pattern of care for a child.

3. Section 49 applies 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”.

4. Section 50 applies 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”.

5. Under these sections, Child Support is able to make care decisions on the basis of what happened up until the change in care is considered and what is likely to happen after the change in care.

6. Revocations of an existing determination of a percentage of care are covered by sections 54F, 54G and 54H of the Assessment Act. Sections 54F and 54G deal with mandatory revocations where certain conditions apply. Section 54H allows for a discretionary revocation of an existing determination of a percentage of care even if there has been no change to the cost percentage.

7. Chapter 2.2.2 of the Child Support Guide provides some guidance to the application of the discretionary revocation:

   Whether the Registrar revokes an existing care percentage depends on the circumstances of the case. If a party to the assessment advises the Registrar of a change in care that would not affect the cost percentage and seeks to have change reflected on the Register, the Registrar should revoke the existing care percentage determination if there is evidence provided by each party, or evidence which is otherwise readily available, to allow the Registrar to determine new care percentages. This helps to ensure there is an accurate record of the care history in a case.

8. The tribunal found that the parties were in agreement that the appropriate interpretation of the parenting plan was that Mr Jansen would have 130 nights of care of [Child 1] and [Child 2] every year.

9. The tribunal also found that the change in care occurred on 26 November 2018, the date of the parenting plan, and Mr Jansen notified Child Support on 29 July 2019.

10. The tribunal decided to revoke the existing determination of care under section 54H of the Assessment Act to ensure that the percentage of care properly reflects the parenting plan and is an accurate record of that plan.

What is the date of effect of the change?

1. The tribunal finds that under subsection 54F(3) of the Assessment Act where a change in care occurred on a day on or after 1 July 2018 and notification is outside the 28-day period, then the existing determinations of care should be revoked as follows:

   ·    for the person with the reduced care, in this case Ms Jansen, the day before the change of care, that is, 25 November 2018; and

   ·    for the person with increased care the day before the notification day, that is, 28 July 2019.

1. Ms Jansen’s new care percentage of 65% will take effect from 26 November 2018 and Mr Jansen’s new care percentage of 35% will take effect from 29 July 2019.

DECISION

The decision under review is set aside so that from 26 November 2018 Ms Jansen has 65% of care of [Child 1] and [Child 2]; and from 29 July 2019 Mr Jansen has 35% of care of [Child 1] and [Child 2].