McCaig and Child Support Registrar (Child support)

[2019] AATA 4351

McCaig and Child Support Registrar (Child support) [2019] AATA 4351 (9 August 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/MC016461

APPLICANT:  Mr McCaig

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member J Longo

DECISION DATE:  9 August 2019

DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that Mr McCaig has a percentage of care of 41% for [Child 1] and Ms [A] has a percentage of care of 59% for [Child 1] with effect from 27 December 2018.

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

BACKGROUND

1. Mr McCaig and Ms [A] are the parents of [Child 1]. Mr McCaig is the parent liable to pay child support.

2. On 25 May 2017, the Department of Human Services – Child Support (the Department) determined that Ms [A] had a percentage of care for [Child 1] of 78% and that Mr McCaig had a percentage of care of 22% for [Child 1].

3. Mr McCaig contacted the Department on 2 January 2019 and stated that there had been a change in the care and that the care had changed to 146 nights for Mr McCaig and 219 nights for Ms [A].

4. On 25 February 2019, the Department amended the percentage of care for [Child 1] to 33% to Mr McCaig and 67% to Ms [A] from 27 December 2018. On 26 February 2019, Mr McCaig lodged an objection to the decision of the Department. On 30 April 2019, an objections officer disallowed Mr McCaig’s objection.

5. On 3 May 2019, Mr McCaig lodged an application with the Administrative Appeals Tribunal (the tribunal) for a review of the decision. The hearing took place on 9 August 2019. Mr McCaig spoke to the tribunal via conference telephone and gave sworn evidence. In making its decision, the tribunal took into consideration the documents (numbered 1 to 82) provided by the Department.

CONSIDERATION

1. The law that applies in this case is the Child Support (Assessment) Act 1989 (the Act).

Has there been a change in the care of [Child 1]?

1. It is uncontroversial that the care arrangements for [Child 1] were, from 25 May 2017, reflected as 78% to Ms [A] and 22% to Mr McCaig.

2. Mr McCaig stated that initially there were court orders regarding care which provided for him to have [Child 1] in his care Friday and Saturday every alternate week and half of the school holidays. Mr McCaig stated that the orders specified how the care would occur during the school holidays, particularly during the long summer break. Mr McCaig stated that he contacted in December 2018 to advise the Department and they told him to contact in January 2019 when the care changed.

3. Mr McCaig stated that as [Child 1] plays [sport] on Friday night, and also on Sunday occasionally, he was staying with him every week on Friday and Saturday during the school term rather than every alternate week as per the court orders. Mr McCaig stated that Ms [A] stated to the Department that she agreed that he had extra care on a weekly basis. The issue related to the calculation of the care during school holidays. Due to the commencement date of the court orders, it resulted in him having the care of [Child 1] for January 2019 in the summer break and would also result in [Child 1] being in his care for December 2018 which increased his care for the year. Mr McCaig calculated that he would have 80 nights of care during school term and a further 70 nights during the school holidays, a total of 150 nights of care.

10.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] be revoked?

11.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.

12.In this case, the tribunal has determined that a care determination was made under section 50 of the Act from 25 May 2017 and that Ms [A] had a percentage of care for [Child 1] of 78% and that Mr McCaig had a percentage of care of 22% for [Child 1]. 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], 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)).

13.The tribunal is required to consider what the actual care of [Child 1] 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 27 December 2018, being the date from which Mr McCaig notified the Department that the change to care arrangements occurred.

1. The tribunal has determined that the care should be changed from 27 December 2018 to show that [Child 1] was in Mr McCaig’s care for 41% of the time and in Ms [A]’s care 59% of the time. The tribunal accepts that Mr McCaig’s care of [Child 1] during the school term increased to be weekly Friday and Saturday rather than fortnightly and that due to the manner in which the court orders specify care during the summer school holidays, he will have increased care for 2019. Accordingly the previous determination of care is revoked from 26 December 2018 and a new determination made from 27 December 2018.

DECISION

The tribunal sets aside the decision under review and, in substitution, decides that Mr McCaig has a percentage of care of 41% for [Child 1] and Ms [A] has a percentage of care of 59% for [Child 1] with effect from 27 December 2018.