Mathews and Child Support Registrar (Child support)

[2020] AATA 268

Mathews and Child Support Registrar (Child support) [2020] AATA 268 (23 January 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/SC017896

APPLICANT:  Miss Mathews

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member C Breheny

DECISION DATE:  23 January 2020

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – decision under 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. Miss Mathews and [Mr A] are the separated parents of [a child], born June 2012, [another child], born October 2013 and [a child], born September 2014. Since (at least) 12 December 2014, child support has been payable on the basis that Miss Mathews had 100% care and [Mr A] had 0% care of the children. Child support liability was collected privately.

2. On 27 March 2019 Miss Mathews opted-in for collection of the child support liability by the Department of Human Services – Child Support (the Department). On 29 March 2019 [Mr A] contacted the Department to advise that he had had 14% (52 nights) care of the children since 31 December 2018. Miss Mathews could not be contacted at the time and on 13 April 2019 a decision was made that [Mr A] had 14% care and Miss Mathews had 86% care of the children from 31 December 2018. This reduced [Mr A’s] child support liability from 13 April 2019.

3. On 7 May 2019, Miss Mathews objected to the decision, stating that [Mr A] did not have 14% care of the children. On 5 July 2019, an objections officer of the Department considered Miss Mathews’ objection and decided to disallow it. The objections officer stated that there was insufficient evidence to show that the care decision made on 13 April 2019 was incorrect.

4. On 25 November 2019, Miss Mathews applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal for an independent review of the objection decision. The application was heard on 7 January 2020. Miss Mathews attended the hearing by conference telephone and gave evidence on affirmation. [Mr A] did not apply to become a party to this review and did not participate in the hearing. A representative of the Child Support Registrar did not attend the hearing. I had before me the statement and documents provided by the Department pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, received on 18 December 2019 (documents numbered 1-71).

5. On 7 January 2020 I deferred making a decision to allow Miss Mathews time to provide additional evidence. I made the decision once the evidence (marked A1-A2) was received.

ISSUES and CONSIDERATION

1. The relevant legislation is the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988.

2. Sections 49 and 50 of the Act provide that a care determination must be made following an application for a child support assessment and requires consideration of the actual, or likely, pattern of care that the parents will have in relation to the children in a particular care period.

3. Section 55C of the Act contains a table that is used to work out a person’s cost percentage:

Cost percentages
Item	Column 1 Percentage of care	Column 2 Cost percentage
1	0 to less than 14%	Nil
2	14% to less than 35%	24%
3	35% to less than 48%	25% plus 2% for each percentage point over 35%
4	48% to 52%	50%
5	more than 52% to 65%	51% plus 2% for each percentage point over 53%
6	more than 65% to 86%	76%
7	more than 86% to 100%	100%

1. In this case departmental records indicate that since (at least) 12 December 2014 child support was payable on the basis that Miss Mathews had 100% and [Mr A] had 0% care of the children. As noted above child support was privately collected until Miss Mathews opted-in for collection on 27 March 2019 (folio 7).

Miss Mathews’ evidence

1. Miss Mathews stated that [Mr A] does not have regular care of the children. He only sees them when it suits him and she and the children never know when that will be. [Mr A] lives with his parents and it is difficult for him to have the children.

2. He had care of the children for a few nights (weekends) in January 2019. He spent this time at her home and she would leave for the weekend. She then asked him to take care of the children in February 2019, but he refused. Miss Mathews said that she is studying at university and her course resumed in February. It would have been helpful if [Mr A] had had some care of the children at that time, but he refused to do so.

3. [Mr A] has had more regular care of the children in June 2019, but prior to that the girls had not seen their father for about six to eight weeks (since about the beginning of April 2019). Miss Mathews noted that this seems to be [Mr A’s] pattern, i.e. he will have care of the children for a few days and then not see them again for many weeks.

4. There is an AVO in place which means that [Mr A] is not allowed to come to her home to pick up the children. He usually picks them up from school and drops them off at school.

5. [Mr A] also started a new job in about April 2019 (working shifts [for a company]) and she has asked him to provide her with his schedule (roster), so they could work out some care arrangement that would suit everyone. To date he has not provided her with any information.

[Mr A’s] evidence

1. [Mr A] is not a party to the review. He told the Department on 29 March 2019 that he had care of all children two nights per fortnight (Friday and Saturday nights) since 31 December 2018 (folio 8).

2. [Mr A] contacted the Department on 24 June 2019 (as part of the objection process) and advised that he still had regular care of the children (folio 40). He submitted that he had care from 22-24 March 2019 and from 29-31 March 2019; from 7-8 April 2019; from 21-24 May 2019 and on 29 May 2019; from 7-9 June 2019 and from 21-23 June 2019 (folio 40).

3. He provided copies of diary pages from 21 March 2019 to 23 June 2019 to verify the above dates (folios 41-50). The diary indicates that [Mr A] had five nights care in March 2019, two nights care in April 2019, five nights care in May 2019 and six nights care in June 2019: a total of 18 nights in the four-month (122 days) period from March 2019 to June 2019 or 14% care.

Additional evidence from Miss Mathews

1. Miss Mathews provided a letter of support from [Ms B], [a member] of [an organisation] (folio A2). The letter states that Miss Mathews is “the primary carer of her three daughters”. It further notes:

   On occasions I believe the children spent time with their father and are also looked after by relatives when she [Miss Mathews] is required to go to [a city] to undergo her University training blocks.

   On occasions when I have visited the property the children are always with their mother.

Conclusion

1. Care is generally calculated over a “care period”, which is a period that the Registrar or the Tribunal considers to be appropriate having regard to all the circumstances of the matter (section 50 of the Act). The Department’s policy in this regard, 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 but may be a shorter period depending on the circumstances of the case.

2. [Mr A] notified the Department on 29 March 2019 that he had two nights per fortnight (14%) care of the children since 31 December 2018. I therefore find that the relevant care period in this case is the 12-month period from 31 December 2018 to 30 December 2019.

3. Miss Mathews acknowledged that [Mr A] does have some care of the children, but not on a regular basis. The support letter from [Ms B] confirms this evidence but is not very specific as to how much care of the children [Mr A] may actually have.

4. [Mr A] provided a copy of his diary for March to June 2019 and this does confirm that he had 14% care of the children in that period.

5. I have considered the limited evidence before me and believe [Mr A’s] evidence to be more detailed and thus persuasive in this case. I thus find that [Mr A] has 14% care and Miss Mathews has 86% care of the children from 31 December 2018.

6. I have reached the same conclusion as the objections officer and affirm the decision under review.

DECISION

The decision under review is affirmed.