LTRC and Child Support Registrar and TSVH (Child support second review)

[2016] AATA 782

LTRC and Child Support Registrar and TSVH (Child support second review) [2016] AATA 782 (5 October 2016)

Division	GENERAL DIVISION
File Number	2015/6349
Re	LTRC
APPLICANT
And	Child Support Registrar
RESPONDENT
And	TSVH
OTHER PARTY

DECISION

Tribunal	Member C Ermert
Date	5 October 2016
Place	Melbourne

The Tribunal varies the decision under review and finds that LTRC had 35 per cent care of the children and TSVH had 65 per cent care of the children. The matter is remitted to the Respondent for the benefits to be adjusted in accordance with this finding.

..........[sgd]....... .......................................................

Member C Ermert

It is noted that publication of this decision is approved by the Administrative Appeals Tribunal pursuant to s 110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth)

CHILD SUPPORT ASSESSMENT - period of care - whether there is a pattern of care - percentage of care - decision varied and remitted to Respondent

LEGISLATION

Child Support (Assessment) Act 1989

Child Support Guide

CASES

Parent 1 and Child Support Registrar and Parent 2 [2013] AATA 562

SECONDARY MATERIALS

Child Support Guide, Commonwealth of Australia

REASONS FOR DECISION

Member C Ermert

5 October 2016

INTRODUCTION

1. LTRC, the Applicant, and TSVH, the Other Party, are the parents of three children, two of whom, Child A and Child B, are the subject of this review. 

2. On 4 June 2015 the Federal Circuit Court of Australia made orders (the Court Orders) which set out the care arrangements for the children.

3. On 18 June 2015 an officer of the Child Support Registrar, the Respondent, made a determination that LTRC had 28 per cent care of the children and TSVH had 72 per cent care of the children from 4 June 2015.

4. LTRC requested a review of this decision.  On 28 August 2015 the Objection Officer made a new determination that LTRC had 66 per cent care of the children and TSVH had 34 per cent care.  This decision was based on his determination that LTRC cared for the children for 125 nights and TSVH cares for the children for 240 nights over the care period between 4 June 2015 and 3 June 2016.

5. On 15 September 2015 LTRC lodged an application with this Tribunal for a review of the Objection Officer’s decision.  On 23 November 2015 the Social Services and Child Support Division (the first tier) of this Tribunal found that LTRC had care of the children for 127 nights over the care period.  The Tribunal found that 127 nights care over the period represented 34 per cent of the total care. The remaining nights representing 66 per cent.  As these percentage figures are unchanged from the earlier determination the Tribunal affirmed the decision. 

6. On 8 December 2015 LTRC applied for a second tier review of the Tribunal’s decision by the General and Other Divisions on the grounds that, in calculating the percentage of care, the Tribunal did not include two nights, 24 June 2015 and 1 June 2016.  The inclusion of the two nights would change the percentage of care to 35 per cent for LTRC and 65 per cent for TSVH.  TSVH objects to this change as it would adversely affect her financial situation.

7. The matter is the second tier review of the Tribunal’s decision.

   HEARING

8. At the hearing LTRC and TSVH represented themselves and gave oral evidence under affirmation by telephone.  Ms Belinda Lewis represented the Respondent. 

9. I had before me the documents provided by the Respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (“the T-documents”).

10. For LTRC I took into evidence his application “Second Review” dated 7 December 2015, included in the T-Documents as Exhibit R1.

11. For TSVH I took into evidence:

    ·Exhibit OP1 – a letter by TSVH to the Child Support Agency dated 2 September 2016 together with an attached marked up calendar; and

    ·Exhibit OP2 – a Letter of Appeal dated 22 July 2016.

12. For the Respondent I took in for consideration the Child Support Registrar’s Statement of Facts and Contentions dated 22 June 2016 together with the attached Supplementary T-Document ST1 – Child Support Notice dated 18 June 2015.

    LEGISLATION

13. The relevant legislation is contained in the Child Support (Assessment) Act 1989 (the Act).  Policy on the application of the Act is contained in the Child Support Guide (the Guide).

14. Section 49 of the Act provides for the determination of a percentage of care when there is no pattern of care.  Section 50 of the Act applies when there is a pattern of care.

15. Section 54A provides for the determination of the actual care a person has had or is likely to have during a care period.

16. Section 54B provides that a determination of percentage of care will apply to each day in the care period.

17. The length of a care period is not specified in the Act. 

    ISSUES

18. The issues I must  determine are:

    ·the care period;

    ·whether, during the care period, there is or is not a pattern of care; and

    ·the actual percentage of care during the care period.

    EVIDENCE

    LTRC

19. LTRC referred to his application for a second review.  He reiterated his contention that 24 June 2015 and 1 June 2016 should be included in the calculation of his percentage of care.  He submitted that these additional two days would bring his total of care to 129 days and that this would result in his having 35 per cent of care between 4 June 2015 and 3 June 2016. 

20. LTRC stated that, additional to the days specified by the Court Orders, he had cared for Child B on 16, 17, 19 and 20 May 2016 when TSVH had travelled overseas.  Nevertheless, he accepted that his care for the children was in line with the Court Orders.

    TSVH

21. TSVH stated that she complied with the provisions of the Court Orders, with a one-off exception in May 2016.  TSVH then said that Child A spent most of the time with her, not in compliance with the Court Orders.  She said that Child A does not go back to her father.  TSVH said that she cannot force Child A to go to her father. 

22. TSVH said she is raising the children on her own.  She has lost her job and cannot manage on her Centrelink payments. 

23. TSVH was asked why she confirmed that care has been happening in line with the court orders since they were made as recorded in the file note at T-Documents page 75. TSVH said that Child A stopped staying with her father in January 2016. TSVH said she had advised Child Support about the situation with Child A but she did not intend to make a claim about it.

24. TSVH agreed that LTRC had cared for the children on 16 and 17 May 2016, but not on 19 and 20 May.

    TRIBUNAL CONSIDERATIONS

    Care Period

25. Section 2.2.1 of the Guide defines the care period to be the period over which care is assessed to determine the care percentages for each parent of non-parent carer.  The Guide notes that the care period is generally a 12 month period from the day on which the actual care of a child began or changed.

26. The Court Orders were made on 4 June 2015.  In the Respondent’s Statement of Facts and Contentions the  Registrar contends that based on the evidence presently available, the standard 12 month care period is likely to be appropriate in the present case.  Neither LTRC nor TSVH made submissions in regard to the care period.  The Tribunal, in its first tier decision, determined that the care period for consideration is 4 June 2015 to 3 June 2016.  I see no need to disturb this finding and affirm that the care period in this case is 4 June 2015 to 3 June 2016.

    Pattern of Care

27. The phrase pattern of care is not defined in the Act.  The meaning was considered in Parent 1 and Child Support Registrar and Parent 2 [2013] AATA 562 in which the Tribunal said at [33]:

    The phrase ‘pattern of care’ is not given any special meaning for the purposes of the Assessment Act.  Having regard to the text of ss49 and 50 of that Act, and the content and purposes of Subdivision B of Division 4 of Part 5, the phrase can be interpreted according to its ordinary meaning.  A pattern may be construed to mean a regular and intelligible form of sequence discernible in certain actions or situations, on which the prediction of successive or future events may be based.  While these features may be necessary to establish a pattern of care, to my mind, in the wide variety of circumstances that may arise between parents in respect of care for children, especially where communication is afflicted by conflict and reason may be upset by emotional turmoil, room should be given for flexibility in the arrangement of care for the children.  In other words, the pattern looked for is not one characterised by precise conformation of detail, day by day, or by unbending regularity.  Some accommodation may be expected for vicissitudes of circumstances in the care of a child, although the extent to which a pattern of care may bend of flex to accommodate variation is a matter to be determined in the facts and circumstances of each case.  This interpretation is consistent with the Guide, which provides that minor departures from the normal care of the child will not constitute a change in the pattern of care.

28. In this case I am satisfied that a pattern of care is established in the Court Orders. LTRC gave evidence of four days at variance with the Court Orders but agreed that the care of the children was in line with the Court Orders.  TSVH stated that Child A has not been to her father since January 2016. However, there is no other evidence to corroborate this statement.  In addition, TSVH said in her submissions that there have been only slight changes from the Court Orders. 

29. I accept the evidence that there is a pattern of care established in the Court Orders and that during the care period there were only minor departures from this pattern of care.  I find that for the care period there is a pattern of care as provided for in section 50 of the Act.  The pattern of care is that contained in the Court Orders.

    Percentage of Care

30. In the reasons for its first tier decision, the Tribunal found at paragraph 20 that the children will be in LTRC’s care for 127 nights over the care period.  LTRC contends that the Tribunal’s calculation was in error in the following instances:

    ·Term 2, 2015 dates should include 24 June 2015 because the term did not finish until 26 June 2015.  In support of his contention LTRC refers to a copy of the school newsletter (T-Document T1, page 5) which states School will finish at 1 pm on Friday, 26th June for the term break;

    ·The Tribunal did not include 1 June 2016 which was still within the 12 month care period.

31. TSVH made no submissions in regard to these dates.

32. I am satisfied from the evidence that the dates 24 June 2015 and 1 June 2016 are included within the care period and are nights for which LTRC had care of the children as part of the pattern of care.  I am also satisfied that all other dates shown in paragraph 20 of the Tribunal’s earlier decision are correct.

33. Accordingly, I am satisfied that, during the care period and in accordance with the pattern of care, LTRC had care of the children for a total of 129 nights.  This equates to 35.34 per cent of the time, rounded down to 35 per cent.  I find accordingly.

34. I find further that during the care period TSVH had care of the children for 65 per cent of the period.

    CONCLUSION

35. I have found:

    ·the care period to be from 4 June 2015 to 3 June 2016;

    ·during the care period there is a pattern of care; and

    ·in accordance with the pattern of care LTRC had care of the children for 35 per cent of the period and TSVH for 65 per cent of the period.

36. These percentages vary from those found in the decision under review.  There are no grounds for varying findings in the first tier decision other than those related to the dates of care and the resulting percentages of care.

    DECISION

37. The decision under review is to be varied to the extent that LTRC had 35 per cent of care of the children and TSVH had 65 per cent of care of the children.

38. The matter is to be remitted to the Respondent for the benefits to be adjusted in accordance with this finding.

I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Member C Ermert

............[sgd]..............................................

Associate

Dated   5 October 2016

Date of hearing	12 September 2016
Applicant	By telephone
Advocate for the Respondent	Ms Belinda Lewis, Department of Human Services
Joined Party	By telephone