Mcnaught and Vernon (Child support)

[2018] AATA 539

Mcnaught and Vernon (Child support) [2018] AATA 539 (9 February 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2017/MC012686

APPLICANT:  Mr Mcnaught

OTHER PARTIES:  Child Support Registrar

Ms Vernon

TRIBUNAL:Member P Glass

DECISION DATE:  09 February 2018

DECISION:

The decision under review is affirmed.

CATCHWORDS

Child Support – Percentage of care – Determination of the likely 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 Mcnaught and Ms Vernon are the parents of [Child 1], [Child 2] and [Child 3].

2. On 24 August 2016, Mr Mcnaught advised the Department of Human Services – Child Support (the Department) of a change in [Child 3]’s care, claiming that his percentage of care was 35% and Ms Vernon’ was 65% from 23 August 2016.

3. On 19 September 2016, the Department accepted Mr Mcnaught’s advice and determined his percentage of care for [Child 3] to be 35% and Ms Vernon’ to be 65% from 23 August 2016.

4. On 26 June 2017, Mr Mcnaught objected to the Department’s decision. On 23 August 2017, an objections officer at the Department disallowed Mr Mcnaught’s objection.

5. On 13 October 2017, Mr Mcnaught applied to the Administrative Appeals Tribunal (the Tribunal) for an independent review of the objections officer’s decision. That application was heard on 9 February 2018. Mr Mcnaught and Ms Vernon appeared before the Tribunal and gave sworn evidence. The Department did not participate in the hearing.

6. The Tribunal received into evidence:

   · documents marked 1 to 143 produced by the Department pursuant to subsection 37(1) of the Administrative Appeals Tribunal Act 1975 (Exhibit 1); and

   ·      Orders made in the Family Court of Australia on 27 November 2017 (Exhibit 2).

7. The issues to be determined are the parents’ percentages of care for [Child 3] from 23 August 2016.

CONSIDERATION

1. At the time of Mr Mcnaught’s notification to the Department on 24 August 2016, his percentage of care for [Child 3] was assessed to be 0% and Ms Vernon’ was assessed to be 100%.

2. Pursuant to section 50 of the Child Support (Assessment) Act 1989 (the Act), percentages of care are to correspond with the actual care of the child each parent has had, or is likely to have, during a care period. Paragraph 50(1)(b) of the Act requires two things before a new care determination can be made:

   ·      the revocation of an existing care determination under Subdivision C of Division 4 of Part 5 of the Act; and

   ·      satisfaction of an actual or likely pattern of care during such care period as is determined to be appropriate in all the circumstances.

3. Pursuant to section 54F of the Act, an existing percentage of care must be revoked if it does not correspond with the actual care taking place and the parties’ cost percentages would change if they reflect the current care percentage. Alternatively, pursuant to section 54H of the Act, an existing percentage of care may be revoked if it does not correspond with the actual care taking place.

4. Neither Mr Mcnaught nor Ms Vernon were able to give clear evidence about [Child 3]’s care arrangements from 23 August 2016. Although Mr Mcnaught had calendars in which he had recorded [Child 3]’s care for the 2017 and 2018 years, he no longer had a calendar for 2016. Mr Mcnaught initially gave evidence that he had her “near enough” every weekend. Ms Vernon gave evidence that the Court Orders were not followed.

5. Mr Mcnaught advised the Department on 24 August 2016 that [Child 3] would be in his care for 3 nights on 3 weekends each month and half the school holidays, equating to him providing 35% of her care.[1] That advice is consistent with Orders made in the Family Court of Australia on 23 August 2016.[2] Correspondence was sent to Mr Mcnaught on 19 September 2016 advising him that his care percentage for [Child 3] was determined to be 35%.[3] That correspondence advised Mr Mcnaught that he could seek the decision be reviewed and also that he should advise the Department of any change to [Child 3]’s care arrangements within 14 days.[4] Despite that advice, there is no record of Mr Mcnaught advising the Department that its determination of [Child 3]’s care percentage was incorrect until 26 June 2017.[5]

   [1] Exhibit 1, page 27.

   [2] Exhibit 1, pages 37 to 40.

   [3] Exhibit 1, page 54.

   [4] Exhibit 1, page 60.

   [5] Exhibit 1, page 74.

6. When asked specifically about the period from 23 August 2016, Mr Mcnaught ultimately gave evidence that the number of weekends [Child 3] spent with him increased after that time to the point of spending every weekend with him. On the basis of that evidence, I cannot be satisfied that [Child 3] spent more than 3 weekends per month with Mr Mcnaught from 23 August 2016. I am unable to consider any subsequent changes to her care.

14.I find that Mr Mcnaught’s percentage of care for [Child 3] from 23 August 2016 was 35% and Ms Vernon was 65%. A change in Mr Mcnaught’s percentage of care for [Child 3] from 0% to 35% changes his cost percentage.[6] Pursuant to section 54F of the Act, the existing percentage of care determination must be revoked. Mr Mcnaught notified the Department of the change within 28 days. The existing percentage of care determination is revoked the day prior to the change, namely 22 August 2016.[7] The new percentage of care determination takes effect from 23 August 2016.

[6] Child Support (Assessment) Act 1989 section 55C.

[7] Child Support (Assessment) Act 1989 subsection 54F(2).

DECISION

The decision under review is affirmed.