McAdow and Thewes (Child support)

[2020] AATA 1757

McAdow and Thewes (Child support) [2020] AATA 1757 (9 April 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/SC018332

APPLICANT:  Dr McAdow

OTHER PARTIES:  Ms Thewes

Child Support Registrar

TRIBUNAL:Member P Jensen

DECISION DATE:  9 April 2020

DECISION:

The decision under review is set aside and, in substitution:

• Dr McAdow is recorded as providing 57% care to [Child 1] with effect from 26 July 2019 and Ms Thewes is recorded as providing 43% care to [Child 1] with effect from 14 October 2019; and

• Dr McAdow is recorded as providing 53% care to [Child 2] with effect from 26 July 2019 and Ms Thewes is recorded as providing 47% care to [Child 2] with effect from 14 October 2019.

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 set aside and substituted

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. Dr McAdow and Ms Thewes are the parents of [Child 1] and [Child 2]. From 13 May 2019, when a child support case was registered with what is commonly referred to as the CSA, Dr McAdow was recorded as providing 58% care to both children on the basis that he was providing four nights of care per week. Ms Thewes has always been recorded as providing the balance of care and, for convenience, I will predominantly refer to Dr McAdow’s care.

2. On 14 October 2019, Ms Thewes informed the CSA of a change in care from 26 July 2019. The CSA decided to record Dr McAdow as providing 42% care to both children with effect from 26 July 2019, and Ms Thewes as providing 58% care to both children with effect from 14 October 2019. Dr McAdow promptly objected to that decision. An objections officer disallowed his objection. Dr McAdow promptly applied to the Tribunal for further review. I conducted a hearing on 9 April 2020. Dr McAdow and Ms Thewes gave sworn evidence by conference phone.

3. In late July 2019 the parents agreed that from 26 July 2019, Mr McAdow would provide three nights of care per week plus some additional ad hoc care. At the hearing, both parents agreed that the nights of care that the parents provided during the period from 26 July 2019 to 9 October 2019 was a fair sample of the general pattern of care that was being provided from 26 July 2019. There is no dispute that during that sample period of 76 nights, Dr McAdow provided 43 nights of care to [Child 1], which equates to 43 / 76 = 56.5%. During the same period, Dr McAdow provided 40 nights of care to [Child 2], which equates to 40 / 76 = 52.6%.

4. Care decisions are made pursuant to the Child Support (Assessment) Act 1989 (“the Act”). The relevant provisions of the Act, so far as they apply to this case, can be summarised as follows. A decision maker is required to determine the pattern of care each parent “has had, or is likely to have”, during the relevant care period: section 50 of the Act. Percentages of care that are more than 50% are rounded up to the nearest whole percentage and percentages of care that are less than 50% are rounded down to the nearest whole percentage: section 54D of the Act. If the change in care is not reported within 28 days of its occurrence, the reduced percentage of care takes effect from the date on which the change in care occurred, and the increased percentage of care takes effect from the date on which the change in care was reported. It follows that Dr McAdow’s 57% care of [Child 1] and 53% care of [Child 2] take effect from 26 July 2019 and Ms Thewes’s 43% care of [Child 1] and 47% care of [Child 2] take effect from 14 October 2019.

DECISION

The decision under review is set aside and, in substitution:

• Dr McAdow is recorded as providing 57% care to [Child 1] with effect from 26 July 2019, and Ms Thewes is recorded as providing 43% care to [Child 1] with effect from 14 October 2019; and

• Dr McAdow is recorded as providing 53% care to [Child 2] with effect from 26 July 2019 and Ms Thewes is recorded as providing 47% care to [Child 2] with effect from 14 October 2019.