Lagana and Perez (Child support)

[2019] AATA 3851

Lagana and Perez (Child support) [2019] AATA 3851 (8 August 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/MC016532

APPLICANT:  Mrs Lagana

OTHER PARTIES:  Child Support Registrar

Mr Perez

TRIBUNAL:Member J Longo

DECISION DATE:  8 August 2019

DECISION:

The tribunal affirms the decision under review.

CATCHWORDS

CHILD SUPPORT – percentage of care – 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.Mrs Lagana and Mr Perez are the parents of [Child 1], [Child 2] and [Child 3].

2.On 4 February 2019, the Department of Human Services – Child Support (the Department) determined that Mr Perez had a percentage of care of 100% for [Child 1], [Child 2] and [Child 3] and Mrs Lagana had a percentage of care of 0% from 10 December 2018.

3.On 1 March 2019, Mrs Lagana lodged an objection to the above care decision of the Department. On 9 May 2019, the Department disallowed the objection.

4.On 14 May 2019, Mrs Lagana lodged an application to the Administrative Appeals Tribunal (the tribunal) for a review of the decision. The hearing took place on 8 August 2019. Mrs Lagana and Mr Perez 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 (325 pages), which were also sent to Mr Perez and Mrs Lagana. Additional information was provided by Mrs Lagana prior to the hearing.

CONSIDERATION

5.The law that applies in this case is the Child Support (Assessment) Act 1989 (the Act). It is not in dispute that the care recorded by the Department from 20 June 2014 of [Child 1], [Child 2] and [Child 3] was shared with Mr Perez having 50% of the care and Mrs Lagana having 50% of the care.

6.Mrs Lagana and Mr Perez both confirmed that there were no court orders in relation to the care of [Child 1], [Child 2] and [Child 3]. In addition, Mrs Lagana and Mr Perez confirmed that the parties had entered into a parenting plan in relation to the children’s care in 2015 and that this was followed until December 2018.

7.Mrs Lagana stated that she doesn’t believe that there was a change in the care of the children but rather the children were on holiday during the period and so this should not result in a change in the care. Mrs Lagana stated that [Child 1] was away in [Country] from about [day] December 2018. The other children were also on holiday visiting family. Mrs Lagana stated to the tribunal that while she did not have any overnight care from December 2018, she did see the children during the period.

8.Mr Perez stated that the children came into his care 100% since 10 December 2018. Mr Perez stated that after [Child 1] returned from [Country], she did not have any further care with Mrs Lagana. Mr Perez stated that he applied for parenting orders for [Child 1], [Child 2] and [Child 3] in January 2019 and was granted interim parenting orders placing the children in his sole care. The matter is still to be finally determined by the Court. Mr Perez stated that [Child 2] and [Child 3] saw Mrs Lagana but did not stay overnight with Mrs Lagana. Mrs Lagana stated in her evidence to the Department that the parenting plan that was in place should be adhered to and that the care should continue at the previous percentages of care.

9.Section 50 of the Act requires a new determination of a percentage of care to be made where an existing determination has been revoked and the tribunal is satisfied either that the person has had, or is likely to have, a pattern of care during a care period.

Should the existing care determinations in relation to [Child 1], [Child 2] and [Child 3] be revoked?

10.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.

11.In this case, the tribunal has determined that a care determination was made under section 50 of the Act from 20 June 2014 and that Mrs Lagana had a percentage of care for [Child 1], [Child 2] and [Child 3] of 50% and that Mr Perez had a percentage of care of 50% for [Child 1], [Child 2] and [Child 3]. 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], [Child 2] and [Child 3], 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)).

12.The tribunal is required to consider what the actual care of [Child 1], [Child 2] and [Child 3] 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 but the tribunal has determined that it is appropriate to consider the policy in the circumstances of this matter. The tribunal considers that, in the circumstances of this case, an appropriate care period is the period from 10 December 2018, being the date on which Mr Perez notified that the change to care arrangements had occurred.

13.The tribunal has determined that the care for Mr Perez and Mrs Lagana accords with the oral evidence. Mrs Lagana’s evidence to the Department, as recorded in the documents before the tribunal, indicate that there was no dispute that [Child 1], [Child 2] and [Child 3] were with Perez 100% from 10 December 2018. Mrs Lagana stated to the tribunal that the children did not stay overnight with her but she did see the children during the period. While Mrs Lagana does not agree with the change and indicated that the change occurred without her agreement, the tribunal cannot take this into account. The tribunal notes that Mr Perez was granted sole care in interim parenting orders in January 2019.

14.Accordingly, the date of effect of the tribunal’s decision in respect of the change in care will be 10 December 2018, which is the date the care changed according to Mr Perez’s notification to the Department that a change in the care had occurred. The tribunal has determined that the care should be changed from 10 December 2018 to show that [Child 1], [Child 2] and [Child 3] were in Mrs Lagana’s care for 0% of the time and in Mr Perez’s care 100% of the time, in accordance with the decision of the Department.

DECISION

The tribunal affirms the decision under review.