McCarthy and Werncik (Child support)

[2018] AATA 3807

McCarthy and Werncik (Child support) [2018] AATA 3807 (25 July 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/BC014077

APPLICANT:  Mr McCarthy

OTHER PARTIES:  Child Support Registrar

Ms Werncik

TRIBUNAL:Member S Trotter

DECISION DATE:  25 July 2018

DECISION:

The decision under review is affirmed.

CATCHWORDS
Child support - Percentage of care - Whether there was a change to the likely pattern of care - Changes to the existing pattern of care - 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. Mr McCarthy and Ms Werncik are the parents of [Child 1] (born September 2000). This review application concerns a decision of the Department of Human Services – Child Support Agency (CSA) about the recorded care for [Child 1] in relation to a child support case which was registered with the CSA.

2. As at 20 December 2017, the existing level of care recorded for [Child 1] was 80% to Mr McCarthy and 20% to Ms Werncik, when Ms Werncik contacted the CSA and notified a change of care, seeking a change to the care percentages recorded for [Child 1] to 72% to her and 28% to Mr McCarthy from 26 November 2017.

3. On 7 February 2018, the CSA refused to change the existing levels of care recorded.

4. Ms Werncik objected to that decision and, on 19 April 2018, the CSA allowed Ms Werncik’s objection and decided to reflect the care of [Child 1] as 72% to Ms Werncik and 28% to Mr McCarthy from 26 November 2017.

5. Mr McCarthy lodged an application for review of that decision with the Tribunal on 15 May 2018.

6. As a person whose interests may be affected by the Tribunal’s decision, Ms Werncik was added as a party to Mr McCarthy’s application.

7. The hearing of the application took place on 25 July 2018. Mr McCarthy and Ms Werncik both spoke to the Tribunal by conference telephone and gave evidence on affirmation. The Child Support Registrar did not participate in the hearing and did not attend.

8. In considering the application, the Tribunal took into account the oral evidence of Mr McCarthy and Ms Werncik and the documentary material provided by the CSA (marked Exhibit 1).

9. The Tribunal observes that Ms Werncik also provided an email to the Tribunal subsequent to the hearing. The relevant parts of that email were read by Ms Werncik at hearing and it was therefore not necessary to accept the email into evidence and it has not of itself been taken into account by the Tribunal.

ISSUES

1. The law relevant to this review is contained in the Child Support (Assessment) Act 1989 (the Act). The Tribunal also had regard to the CSA’s Child Support Guide (the Guide) where relevant.

2. In the usual course of events, the CSA (acting for the Child Support Registrar) makes child support assessments using a statutory formula in Part 5 of the Act. The formula contains a number of elements called “particulars of the assessment”. This includes the “percentage of care” and a “cost percentage” for each parent in relation to each child.

3. The scheme of the Act is that existing care percentages generally apply until a change is notified and a new decision with mostly prospective effect is made and requires consideration of the likely pattern of care when a change is notified.

4. Section 49 applies, relevantly, if the parent “has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances.”

5. Section 50 applies, relevantly, if the parent “has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances.”

6. The “care period” will ordinarily be the period of 12 months from the date on which the actual care of a child began or changed. The same care arrangements will then be assumed to apply for the subsequent 12-month period, unless the CSA is otherwise advised and the requirements of the legislation are satisfied such that a new care decision is made. There are some circumstances where determining the care over a shorter or longer care period may be appropriate (see the Guide at 2.2.1).

7. Both sections 49 and 50 reflect the idea that point-in-time care decisions are made on the basis of what has happened up until the change in care is notified and what is likely to happen thereafter. What is likely to happen may not eventuate and when that is the case, a parent can notify the CSA and a new care determination can be made from the date of a change. However, the legislative test at first instance and on review requires assessment of the pattern of care for the care period based upon what had happened until the date of notification and what is likely to happen thereafter.

17.Any new care determination takes effect from the date that care changed or, if the Registrar is not notified within 28 days of care changing, then the date of the notification: subsection 54F(2).

18.The legislative scheme deals with any subsequent change to the likely pattern of care by requiring further notification to be made to the CSA of such changes, so that a new care percentage decision or decisions can then be considered and made if appropriate.

19.It follows that the issue to be determined by the Tribunal is the likely pattern of care of [Child 1] from 26 November 2017.

EVIDENCE

1. Mr McCarthy’s evidence to the Tribunal included as follows:

(a)The calendars he has previously provided have the correct dates of care (pages 40 and 41 of Exhibit 1). He did not record dates after December 2017 because his expectation was that as [Child 1] had finished school, child support would no longer be an issue.

(b)[Child 1] did start a job with his uncle after schoolies and only worked in that job for about three months. There was some prospect that his uncle would receive a subsidy in relation to employing [Child 1].

(c)For convenience, [Child 1] stayed at Ms Werncik’s house more when he was working with his uncle, as she lived close to work but he also did stay with him at times. [Child 1] had use of a car that Mr McCarthy had provided and there was nothing stopping him driving the 20 minutes back to Mr McCarthy’s house. Since finishing work with his uncle, [Child 1] has more or less been with him.

(d)When queried as to what was the expectation in relation to [Child 1]’s job with his uncle and how long the job was for, he stated that he had no particular expectations. He expected [Child 1] to do what he wanted to do.

1. Ms Werncik’s evidence to the Tribunal included as follows:

(a)In addition to the dates previously provided to the CSA (summarised at page 5 of Exhibit 1), her records also show that [Child 1] was with her from 18 to 28 February 2018 and 1 to 8 March 2018. She does not have any records after that time because it was all coming to an end (the child support case) and ultimately was finished on 19 April 2018.

(b)When [Child 1] commenced working for his uncle, she expected the job would be ongoing. She is not sure when exactly he finished up but does not disagree that he worked with his uncle for approximately three months. He usually stayed with her during the week when he was working with his uncle and stayed with Mr McCarthy on weekends.

CONSIDERATION

1. The relevant issue before the Tribunal is the care percentages of [Child 1] to be recorded from 26 November 2017 when Ms Werncik notified a change of care to the CSA, that is, whether there should be a change to the care percentages then recorded for Mr McCarthy and Ms Werncik.

2. It is not in dispute that from approximately 26 November 2017, [Child 1] commenced working for his uncle (after the completion of school and schoolies) and that, for convenience, [Child 1] then usually stayed at Ms Werncik’s home during the week when he was working, returning to Mr McCarthy’s home on the weekends.

3. Mr McCarthy and Ms Werncik have both provided dates that they contend that they had overnight care of [Child 1] during November and December 2017, based upon their contemporaneous records kept at the time. Ms Werncik continued to keep a record of dates up until 8 March 2018. The nights contended by Mr McCarthy and Ms Werncik from 26 November 2017 that Ms Werncik had care of [Child 1], based on each of their contemporaneous records are as follows:

Month	Mr McCarthy’s records of nights [Child 1] was with Ms Werncik	Ms Werncik’s records of nights [Child 1] was with her
November 2017	27, 28, 29 (3 nights)	26, 27, 28, 29, 30 (5 nights)
December 2017	3 – 7, 11-14, 18-20, 25-28 (16 nights)	1-7, 10-14, 17-20, 22-26, 29 (22 nights)
January 2018	No records kept	3-12, 14-19, 21-25, 27-31 (26 nights)
February 2018	No records kept	1-8, 11-15, 18-28 (24 nights)
March 2018	No records kept	1-8 (8 nights)

25.There are some differences in the contemporaneous records kept by both parents of the overnight care of [Child 1] for November 2017 and December 2017. The difference in nights is not able to be explained but is not significant. Having considered the evidence carefully, the Tribunal concludes that the likely pattern of care of [Child 1] from 26 November 2017 was that he would be spending five nights per week with Ms Werncik and two nights per week with Mr McCarthy. The Tribunal accepts that ultimately that changed after approximately three months.[1] However, as at 26 November 2017, the Tribunal is satisfied that it was generally expected that the pattern of care was likely to be consistent with [Child 1] staying with Ms Werncik when he was working (for his uncle) and that at that point, although he ultimately finished this job three weeks later, there was no expected end date for the job. The Tribunal accepts that there were variations to this pattern of care on occasion when [Child 1] chose to spend additional nights with Mr McCarthy. Minor variations can and do occur in expected or likely care patterns and in the Tribunal’s view these types of minor variations in care do not amount to a change to expected pattern of care. Having taken into account all of these matters, the Tribunal is satisfied and finds that the expected pattern of care of [Child 1] from 26 November 2017 was likely to be 28%[2] to Mr McCarthy and 72% to Ms Werncik.[3]

[1] As already noted, the legislative scheme deals with any subsequent change to the likely pattern of care by requiring further notification to be made.

[2] 2/7 = 28.5714% rounded to 28% pursuant to paragraph 54D(b) of the Act.

[3]5/7 = 71.4285% rounded to 72% pursuant to paragraph 54D(a) of the Act.

26.In reaching this decision, the Tribunal acknowledges Mr McCarthy’s submission to the Tribunal that he was not aware of the intricacies of how the legislative scheme operates and that he also has issues with the care recorded in previous years. As discussed at hearing the only decision before the Tribunal is in relation to the care percentages to be recorded from 26 November 2017. Further, it is not the role of the Tribunal to provide advice in relation to the child support scheme.

27.Having had regard to all matters, the decision under review should be affirmed.

DECISION

The decision under review is affirmed.