McFadden and Child Support Registrar (Child support)

[2019] AATA 5112

McFadden and Child Support Registrar (Child support) [2019] AATA 5112 (3 September 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/PC016798

APPLICANT:  Mr McFadden

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  03 September 2019

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides there was no change in the level of care from 16 November 2018.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no change to the likely pattern – refusal to revoke the existing percentage of care determinations – 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. This review is about a change to the percentage of care determinations for Mr McFadden and [Ms A] in respect of their children [Child 1] (born May 2005) and [Child 2] (born September 2008).  There has been a child support assessment in place since 31 May 2018 and Mr McFadden is the liable parent.

2. From 31 May 2018 the child support assessment reflected Mr McFadden as having 14 per cent care and [Ms A] as having 86 per cent care of [Child 1] and [Child 2].

3. On 20 November 2018 [Ms A] notified the Department of Human Services, Child Support (the Child Support Agency) of a change in care, stating she had 100 per cent care of [Child 1] and [Child 2] from 16 November 2018.

4. On 20 March 2019 the Child Support Agency made the decision to reflect that [Ms A] has 100 per cent care of [Child 1] and [Child 2] from 16 November 2018.

5. On 2 April 2019 Mr McFadden objected to this decision and on 31 May 2019 the Child Support Agency disallowed the objection (the objection decision).

6. On 23 June 2019 Mr McFadden applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.

7. The Tribunal conducted a hearing into the application on 3 September 2019.  Mr McFadden gave evidence on affirmation by conference telephone.  The Tribunal wrote to [Ms A] on 3 July 2019 inviting her to be added as a party to the application but she did not respond.  [Ms A] did not participate in the hearing.  The Child Support Agency provided the Tribunal and Mr McFadden with papers relevant to the matter (77 pages).

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act).

2. The Child Support Agency makes child support assessments using a formula outlined in the Act and the elements of this formula include care percentages for each parent.  The percentage of care is used in an assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they provide for that child.

3. Where a parent has a pattern of care for a child, the Child Support Agency determines care percentages that correspond with the actual care of a child the parent has, or is likely to have, during a care period (section 50 of the Act).  In other words, the Child Support Agency makes care decisions at a point in time based on what has happened up until the change in care is considered and what the likely care is thereafter.  The task of the Tribunal on review is the same.

4. The Child Support Agency revokes care percentages in the circumstances set out in sections 54F, 54G and 54H of the Act and can then make a new care determination to take account of a care change.

5. The issues which arise in this case are:

   ·      has there been a change in the pattern of care for [Child 1] and [Child 2] which requires existing percentages of care to be revoked and new care determinations to be made; and if so,

   ·      from what date should the new percentage of care determinations take effect?

CONSIDERATION

1. Mr McFadden told the Tribunal that following separation he had care of the children for at least two nights every fortnight.  He said this was based on a verbal agreement with [Ms A] as the parents communicated regularly about matters relating to the children.

2. Mr McFadden explained that care of the children changed when he moved interstate from [State 1] to [State 2] in around mid-November 2018.  Mr McFadden said prior to leaving [State 1] he had discussed ongoing care arrangements with [Ms A] and the parents had agreed the children would spend time with him during school holidays.  Mr McFadden said the parents had also planned for him to have additional care when he returned to [State 1], however, he acknowledged there was some uncertainty about how often he would return.  Mr McFadden said he had intended to return to [State 1] every six weeks or so but that had not eventuated due to his work commitments.

3. Mr McFadden told the Tribunal that since leaving [State 1] the children had spent 10 nights with him in [State 2] during the Christmas school holiday period, 14 nights with him in [State 2] during the April school holiday period and would be with him again for 16 nights during the September school holiday period.  In addition he had care of the children in [State 1] for a total of six nights from 25 May 2019 to 28 May 2019 and from 30 May 2019 to 2 June 2019.  Mr McFadden said it was very likely he would also return to [State 1] in November and have the children again for at least six nights.

4. The Tribunal notes in evidence, eTicket receipts from [Airline 1] showing:

   ·     the children travelled from [City 1] to [City 2] on 26 December 2018 and returned on 5 January 2019;

   ·     the children travelled from [City 3] to [City 2] on 12 April 2019 and returned on 27 April 2019;

   ·     Mr McFadden travelled from [City 2] to [City 3] on 23 May 2019 and returned on 2 June 2019.

5. Although [Ms A] did not participate in the hearing, the Tribunal notes that on 9 February 2019 she provided the Child Support Agency with an unsigned extract from a written care arrangement.  The extract states, in part, “The husband is seeking that the children be able to spend time with him in [State 2] during school holidays and on other occasions when the husband may return to [State 1]”.  During conversations with a child support officer on 8 February 2019 and 2 May 2019 [Ms A] agreed the children had spent 10 nights with Mr McFadden in [State 2] during the Christmas period and 14 nights with him during the April school holidays.  The record of the conversation on 2 May 2019 also confirms that [Ms A] believed Mr McFadden would have further care of the children during the September school holidays.

6. Mr McFadden told the Tribunal he believed his care would continue to be a minimum of 52 nights a year.  He acknowledged the pattern of care for [Child 1] and [Child 2] had changed but said the frequency of care would remain the same.  Mr McFadden added that he and [Ms A] continued to discuss care arrangements and given his circumstances there would be ongoing flexibility about the pattern of care for [Child 1] and [Child 2].

7. [Ms A] has confirmed that Mr McFadden had care of 10 nights during the Christmas holidays and 14 nights during the April school holidays.  She has also acknowledged that Mr McFadden would have care during the September school holidays.  The extract from the written care agreement corroborates Mr McFadden’s view he would have ongoing care of the children after relocating to [State 2].

8. Mr McFadden has provided evidence to support that his pattern of care is likely to equate to at least 52 nights during a 12 month period from mid-November 2018.

9. The Tribunal is satisfied, based on the evidence provided, there has been a change to the pattern of care for the children but Mr McFadden will continue to have at least 14 per cent care.  Therefore there is no reason for the existing percentage of care determinations to be revoked.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides there was no change in the level of care from 16 November 2018.