Mcmaster and Child Support Registrar (Child support)

[2018] AATA 1477

Mcmaster and Child Support Registrar (Child support) [2018] AATA 1477 (13 March 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/SC013318

APPLICANT:  Mr Mcmaster

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member W Kennedy

DECISION DATE:  13 March 2018

DECISION:

The decision under review is affirmed.

CATCHWORDS
Child Support – Percentage of care – Determination of the likely pattern of care – Care correctly determined by Centrelink - 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 Mcmaster and Ms Mcmaster are the parents of three children in respect of whom there is a child support assessment.  This application concerns the percentages of care of one of the children, Child 1, used in the child support assessment.

2. On 29 April 2015 the Family Assistance Office (FAO) decided that Ms Mcmaster had 100% care and Mr Mcmaster had 0% care of Child 1.  On 11 March 2016 Mr Mcmaster applied for the registration of a child support case and, after conversations with the parents, the Child Support Agency of the Department of Human Services (the Department) decided to apply the decision of the FAO to the child support assessment.

3. Following the rejection of his application made in August 2017 for a change to the percentages used in the child care assessment, on 31 October 2017 Mr Mcmaster objected to the decision made on 11 March 2016.  Mr Mcmaster stated that he had 14% care of Child 1 and supplied various third party statements and a calendar in support of his claim.  Ms Mcmaster also provided third party statements in support of her position that she continued to have 100% care of Child 1.  On 3 January 2018 a Department objections officer disallowed the objection, finding that there was insufficient evidence to determine a new pattern of care.

4. On 7 January 2018 Mr Mcmaster applied to this Tribunal.  The Tribunal considered the application on 13 March 2018.  Ms Mcmaster was invited to apply to be made a party to the application but did not respond to the invitation.  The Department provided documentary material which was numbered 1 to 148 and which was provided to Mr Mcmaster in advance of the hearing.  Mr Mcmaster attended the hearing by conference telephone and gave his evidence under an affirmation.  The Child Support Registrar did not attend the hearing and was not represented.

ISSUES

1. In this case the Tribunal has to decide the percentage of care that each of the parents has or is likely to have of the children in the care period.

CONSIDERATION

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

2. The Department (acting for the Child Support Registrar) makes child support assessments using the statutory formula found in Part 5 of the Act.  The formula contains a number of elements called “particulars of the assessment”.  This includes the “percentage of care” for each parent in relation to the children.

3. The Department makes determinations of each parent’s percentage of care in accordance with sections 49 to 54L of the Act.  These provisions require the Department to make determinations of each parent’s percentage of care when first making a child support assessment and for those determinations to be revoked and remade in specified circumstances.

4. At the hearing Mr Mcmaster said that he had always had some care of Child 1.  He said that he had not told the Department that he had no care.  The Tribunal asked Mr Mcmaster about the notes of the conversation between him and the Department on 27 January 2016, which state:

   RP Mr Mcmaster said PP Ms Mcmaster has basically 100% care of Child 1, as there is no regular pattern of care.  Although Mr Mcmaster does periodically get some care.

5. Mr Mcmaster said that the Department was mistaken.  When asked why he did not respond to the many letters (for example those at folios 22, 25, 32 and 35) which advised him that the child support assessment was based on him having 0% care of Child 1, Mr Mcmaster said that he just did not recognise the advice. 

6. The documentary evidence provided by Mr Mcmaster offers little illumination of the facts relating to the decision before the Tribunal.  The third party letters are all recent and they are mostly concerned with the care of the other children.  Insofar as they deal with the care of Child 1 they are referring to more recent events.  The decision before the Tribunal was made more than two years ago and deals with a period commencing nearly three years ago.  The care calendars provided by Mr Mcmaster commence in September 2017 and thus are of little assistance to the Tribunal in determining the care of Child 1 in 2015 and 2016.

7. On 27 January 2016 Mr Mcmaster advised the Department that he had no care of Child 1 (folio 11).  On 28 January 2016 Ms Mcmaster confirmed that she had 100% care of Child 1 (folio 13).  There is no documentary evidence before the Tribunal that refutes that advice.

8. Section 50 of the Act provides that the Child Support Agency (CSA) must determine a percentage of care if a number of criteria are met:

   Determination of percentage of care--responsible person has had etc. a pattern of care for a child

   (1)  This section applies if:

   (a)  either of the following applies:

   (i)  an application is made under section 25 or 25A for a parent to be assessed in respect of the costs of the child;

   (ii)  a parent is taken under section 73A to have had a relevant dependent child from a day specified in that section;

   and the Registrar is satisfied that a responsible person for the child 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; or

   (b)  the Registrar:

   (i)  revokes, under Subdivision C of this Division, a determination of a responsible person's percentage of a care for a child that was made under section 49 or this section; and

   (ii)  is satisfied that the responsible person 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.

   (2)  The Registrar must determine the responsible person's percentage of care for the child during the care period.

   (3)  The percentage determined under subsection (2) must be a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person has had, or is likely to have, during the care period.

   (4)  Subsection (3) does not apply if section 51 or 52 applies in relation to the responsible person.

9. An application for a child support assessment was made by Mr Mcmaster on 27 January 2016.  The Tribunal is satisfied that there is a pattern of care and therefore the Registrar is required to determine the percentage of care that corresponds with the actual care that the parents have during the care period.

10. At the time the parents agreed that Ms Mcmaster had 100% care of Child 1 and other than Mr Mcmaster’s recent oral evidence there is no evidence that that percentage was incorrect.  Accordingly the Tribunal sets Mr Mcmaster’s care percentage at 0% and Ms Mcmaster’s care percentage at 100%. 

11. Paragraph 50(1)(a) of the Act states that the care period is the period that is considered appropriate in the circumstances of the case.  The Child Support Registrar’s policy is that a care period is generally a 12 month period.  In this case the care period commences on the date of the FAO’s decision on 29 April 2015.  The Tribunal finds that in the period from 29 April 2015 to 28 April 2016 Mr Mcmaster had 0% care and Ms Mcmaster had 100% care of Child 1.   

DECISION

The decision under review is affirmed.