Keller and Keller (Child support)

[2019] AATA 5199

Keller and Keller (Child support) [2019] AATA 5199 (18 October 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/BC017158

APPLICANT:  Ms Keller

OTHER PARTIES:  Mr Keller

Child Support Registrar

TRIBUNAL:Member P Jensen

DECISION DATE:  18 October 2019

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – no change to the likely pattern of care –- 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

1. Ms Keller and Mr Keller are the parents of [Child 1]. A child support case was registered with the Department of Human Services – Child Support (“the CSA”) in 2017. More recently, the CSA recorded Mr Keller as providing 14% care to [Child 1], with effect from 3 October 2018, on the basis that he was generally providing one night of care per fortnight during school terms, one week of care during each of the three term holidays, and two weeks of care during the Christmas holidays. Ms Keller has always been recorded as providing the balance of care and, for convenience, I will predominantly refer to Mr Keller’s care.

2. On 23 April 2019, Ms Keller reported a change in care from 25 January 2019. The CSA concluded that a change in care occurred on 25 January 2019. The CSA decided to record Ms Keller as providing 87% care with effect from 23 April 2019, and Mr Keller as providing 13% care with effect from 25 January 2019. (The different dates of effect were the result of the delay in reporting the change in care.) Mr Keller promptly objected to that decision. An objections officer allowed his objection and decided to not record a change in care. Ms Keller promptly applied to the Tribunal for further review. I heard the matter on 18 October 2019. I spoke to Ms Keller and Mr Keller by conference phone.

3. The relevant facts are not in dispute. In the ordinary course, Mr Keller would have provided a block of 14 nights of care during the Christmas 2018-19 holidays, but he provided a block of only 12 nights of care. Also, he did not provide one night of care that he ordinarily would have provided in April 2019. Ms Keller calculated that by not providing those three nights of care, Mr Keller’s pattern of care had fallen to below 14% care. It was for those reasons that the original decision maker decided to record Mr Keller as providing 13% care. Mr Keller submitted that his non-provision of two nights of care during the Christmas holidays and one night of care in April 2019 were aberrations to his general pattern of care which he had continued to provide. It was for those reasons that the objections officer decided to not record a change in care.

4. Care decisions are made pursuant to the Child Support (Assessment) Act 1989. Relevantly, section 50 requires decision-makers to ascertain the pattern of care a parent “has had, or is likely to have,” during the appropriate care period. The care decision that was made in 2018 to record Mr Keller as providing 14% care was based on his pattern of care over a 12-month period.

5. Not every deviation from an existing pattern in care constitutes a new pattern of care. Departmental policy has been developed to assist decision-makers in this regard. The relevant policy is contained at 2.2.2 of the Child Support Guide under the hearing “Change in pattern of care”. Mr Keller provided a copy of that policy to the Tribunal, and it forms part of the hearing papers. The policy includes the following:

What constitutes a change to the pattern of care will depend upon the individual circumstances of the case. For example, when considering a change that would result in a parent's care falling below 14%, after a pattern of at least 14% had been previously established, the Registrar will consider that the pattern of care has changed when:

·the parent misses 3 care events in a row

·the parent misses 5 events of care out of 8, or

·the parent misses 20% of the care over 12 months (when calculating 20% the Registrar will not include an isolated event that is clearly not a change in the pattern).

1. Ms Keller acknowledged that, according to that policy, there had not been a change to the pattern of care. The Tribunal is not bound by departmental policy, and each case must be assessed on its particular circumstances, but in my opinion, the three nights of care that Mr Keller did not provide can properly be regarded as aberrations. When Ms Keller reported a change in care, there had not in fact been a change in care. The objections officer’s decision was the preferable decision.

DECISION

The decision under review is affirmed.