Jordan and Jenkin (Child support)

[2019] AATA 1744

Jordan and Jenkin (Child support) [2019] AATA 1744 (15 May 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/PC016071

APPLICANT:  Mr Jordan

OTHER PARTIES:  Child Support Registrar

Ms Jenkin

TRIBUNAL:Member M Martellotta

DECISION DATE:  15 May 2019

DECISION:

The decision to determine care as 59% to Ms Jenkin and 41% to Mr Jordan as from 18 September 2018 is affirmed.

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 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. Mr Jordan and Ms Jenkin are the parents of two children. On 26 October 2018 the Department of Human Services – Child Support (the Department) decided to change the care determination recorded to reflect that Mr Jordan had 44% care and Ms Jenkin had 56% care from 1 January 2018 effective from 18 September 2018.

2. Ms Jenkin objected to that decision.[1] On 22 February 2019 a Department objections officer changed the original decision and instead decided that Mr Jordan had 41% care and Ms Jenkin had 59% care as from 1 January 2018 effective from 18 September 2018.

   [1] The objection was made within the statutory timeframe of 28 days.

3. Mr Jordan made application for independent review of this decision. On 15 May 2019 the tribunal conducted a hearing at which Mr Jordan and Ms Jenkin attended by conference telephone and gave evidence under affirmation. Documents relevant to the decision had been provided by the Department (151 pages).

ISSUES

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

2. The issues which arise in this case are:

• Should the existing determination of percentage of care be revoked and replaced?

• Should a new determination of a percentage of care be made? If so, what is the percentage of care under the new determination? From when should it apply?

CONSIDERATION

1. Section 50 of the Act requires the Department to determine a person’s percentage of care where a person has had, or is likely to have, a pattern of care for a child for the care period. The percentage of care so determined must be a percentage that corresponds with the actual care of the child.

2. Section 54A of the Act sets out that actual care of a child that a person has or is likely to have may be worked out on the number of nights of care. A new percentage of care can be determined by the Department whenever the care of a child has changed pursuant to sections 54F, 54G and 54H of the Act.

3. In this matter the following evidence is not in dispute and the tribunal finds that Mr Jordan and Ms Jenkin have been separated for a number of years. In that time by agreement a care arrangement has been in place whereby the children will spend time with Mr Jordan on the basis of his availability which in turn is governed by his work roster. That work roster basically is one in which Mr Jordan works shifts over the month in which every two weeks he has seven days off for four months and then every fifth month he gets a block month off work.

4. Mr Jordan told the tribunal that the pattern of care that he had was as follows:

   Week 1 – two nights

   Week 2 – five nights

   Week 3 – two nights

   Week 4 – five nights

   On the month he had off, he and Ms Jenkin alternated care every two days (so two nights each repeated over). Mr Jordan said that this pattern of care was based upon his work roster and that even on occasions when he had an early start he would have his new partner take the children to school if needed.

5. Ms Jenkin told the tribunal that whilst she agreed with the pattern of care as described for the month that Mr Jordan did not work, the actual pattern of care was otherwise as follows:

   Week 1 – two nights

   Week 2 – four nights

   Week 3 – one night

   Week 4 – four nights

   Ms Jenkin said that this was the general pattern of care. She said that on occasions Mr Jordan may have an extra night here and there but overall the pattern was as she had described.

6. Mr Jordan referred the tribunal to his 2018 work roster in which he had annotated nights in care. Whilst that record shows on some occasions Mr Jordan had care of the children for extra nights the roster shows a pattern of care also consistent with that as described by Ms Jenkin. This also appears to be consistent with Mr Jordan’ advice to the Department that his ‘kids sometimes stay with me whenever my partner stays over for the night regardless if I’m working the next day or not.’[2]

   [2] Department document p 64.

7. At hearing Mr Jordan agreed that his calculations of nights in care did not take into account that on the basis of his roster that there would be a variation in the amount of ‘block leave’ he would have, namely that in one year he would have three blocks of leave but the next year two.

8. The tribunal is first required to consider whether the existing determination must be revoked and if so decide what the new determination is. As noted the legislation requires a percentage of care for a parent to be determined on the pattern of care that a parent has had or is likely to have for a child in a care period. This pattern of care can be established either according to a care arrangement or the actual care that is taking place. In this matter there was no relevant court order or parenting plan.

9. The primary decision-maker’s (that is, the Department’s) essential task was to consider any pattern of care based on actual care to the time of notification and likely care thereafter (for an appropriate care period). In this respect, on review, there is a clear “temporal element” in reviewing care percentage decisions, having regard to the actual or likely pattern of care at the point in time of the initial notification to the Department. It is not appropriate, in undertaking that task, to assess care based on what happened from initial notification to the Department up to the time of the tribunal’s hearing – and evidence as to care for this period is not likely to be relevant, save to the extent that such evidence may inform the actual or likely pattern of care as at the date of notification to the Department.

10. Mr Jordan stated that he felt that the care percentage was never right but he nominated 1 January 2018 as being the date that he says care changed. The record confirms that Mr Jordan contacted the Department on 18 September 2018 with details of a change in care.

11. According to the Department records, Ms Jenkin advised that the parties had always had a flexible arrangement in place however due to a disagreement over care and communication issues, that flexible arrangement changed and the pattern whereby she had 17 nights and Mr Jordan 11 nights with shared care on the months Mr Jordan had a block of leave, had been in place ‘without deviation’ since September 2018.[3] The tribunal notes that this appears to be consistent with the Department’s record of when Mr Jordan made contact with the Department advising of a change in care.[4]

    [3] Department document p 117.

    [4] Department document p 30.

12. On balance the tribunal concluded it was satisfied that there was a change in care on 18 September 2018. The tribunal was satisfied that the overall pattern of care from that date is that over a four-week period Mr Jordan has 11 nights of care and Ms Jenkin has 17 nights. During the month of block leave the tribunal is satisfied that on average Mr Jordan has 15 nights of care. Factoring the variations as noted the tribunal is satisfied that Mr Jordan has 153 nights of care (41%) and Ms Jenkin has 212 nights of care per annum (59%).

13. The tribunal then considered whether the care determination in relation to the children is to be revoked. In this matter the existing determination in place was that Mr Jordan had 35% care and Ms Jenkin had 65% care. The tribunal has found that as from 18 September 2018 care changed so that Mr Jordan had 41% care and Ms Jenkin 59% care. A care determination must be revoked if the Registrar is notified or otherwise becomes aware that the care of a child that is actually taking place does not correspond with the existing percentage of care for the child and the responsible person’s cost percentage would change if a new determination were made (section 54F of the Act).

14. Section 55C of the Act details how the percentage of care affects the cost percentage. In this case Mr Jordan’ change in care results in a change in the cost percentage (it increases from 25% to 37%). The tribunal concluded that the existing determination is to be revoked pursuant to section 54F of the Act. In this matter the revocation of the existing care percentage takes effect the day before the change of care day namely 17 September 2018.[5]

    [5] Subsection 54F(3) of the Act.

15. Having revoked the existing determination, the tribunal must make a new determination of percentage of care under either section 49 or section 50 of the Act. The tribunal concluded that in this matter there is a likely pattern of care for the children and that as such section 50 of the Act[6] applies.

    [6] The percentage of care of 100% is made under section 50 and 0% is made under section 49 of the Act.

16. Section 54B of the Act sets out the date of effect of the new determination of percentages of care. The percentage of care applies to each day in a child support period on and from the “application day”. In this matter the relevant application day for the new determination of percentages of care is the day after the revocation of the existing determination. The tribunal has revoked the existing determination with effect from 17 September 2018; the new determination applies from 18 September 2018.

DECISION

The decision to determine care as 59% to Ms Jenkin and 41% to Mr Jordan as from 18 September 2018 is affirmed.