Mordan and Child Support Registrar (Child support)

[2018] AATA 1476

Mordan and Child Support Registrar (Child support) [2018] AATA 1476 (14 March 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2017/SC013181

APPLICANT:  Mr Mordan

OTHER PARTY:  Child Support Registrar

TRIBUNAL:Deputy President J Walsh

DECISION DATE:  14 March 2018

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that Mr Mordan be recorded as having 100% care, with effect from 15 June 2017.

CATCHWORDS
Child support - Percentages of care - Likely pattern of care - Date of effect of the new care percentage 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. Mr Mordan seeks review of an objection decision dated 14 November 2017 which disallowed his objection to a decision attributing him with 100% care of his children from 15 June 2017, but only with effect from 3 August 2017 for child support purposes. Care had previously been assessed as 86% to Mrs Mordan and 14% to Mr Mordan from February 2012. Mr Mordan’ case on objection was that the change in care should be given effect from 15 June 2017.

2. Mrs Mordan did not participate in the CSA decision-making processes. She was invited to be added as a party to Mr Mordan’s AAT application, but did not respond. I convened a directions hearing with Mr Mordan on 6 February 2018 during which the issues arising in this matter were canvassed. I then gave Mr Mordan time to provide a written submission. Both Mr Mordan and the Registrar have consented to the matter being determined on the papers, without the need for a formal hearing.

CONSIDERATION

1. Much of the background here is not in dispute. Both Mr Mordan and Mrs Mordan are originally from [Country 1]. On 15 June 2017, Mrs Mordan departed Australia for a trip to [Country 1]; Mr Mordan expected her to be back in a month. Mrs Mordan had sought to take the children with her, but Mr Mordan did not consent to this. On 14 June 2017, she told Mr Mordan she was leaving and he would have to care for the children from 15 June 2017.

2. In fact, Mrs Mordan has not returned to Australia. She was vague and evasive in responding to Mr Mordan’ emails in early July 2017 as to an expected return date. On 31 July 2017, Mrs Mordan emailed Mr Mordan requesting that the children be sent to [Country 1]; he would not do so. It was at that stage Mr Mordan became fairly certain she did not intend to return. She confirmed this on 22 August 2017.

3. On 24 July 2017, Mr Mordan contacted the CSA and advised that, since Mrs Mordan went overseas on 15 June 2017, he had had all the children’s care. The CSA records note Mr Mordan did not want this followed up at that stage because he did not want to cause “issues” between the parents.

4. On 3 August 2017, Mr Mordan notified the CSA of a change in care and that he had had 100% of the children from 15 June 2017. A decision to that effect was made. However, because the care change was not notified within 28 days of the change in care, the new decision had effect in the child support assessment only from 3 August 2017.

5. In the usual case, notification if a change in care will only have effect for child support purposes if made within 28 days of the change in care. But, as Mr Mordan contends, assessing what amounts to the date of a change in care can be difficult.

6. His position is that both he and Mrs Mordan had previously travelled overseas for a month at a time, with the children staying in the care of the remaining parent. He did not consider that to constitute a change in the pattern of care. I accept that is a practical and appropriate view. On that view, it was not until late July 2017 that a change in care crystallised (at least in Mr Mordan’s mind).

7. During the directions hearing, I suggested it seemed clear enough that Mrs Mordan left Australia in mid-June 2017, had been evasive in confirming her intended return date and, in fact, never returned. Against that background, it seemed reasonable to conclude she left Australia, with no intention of returning. Mr Mordan accepted this and I proceed on that basis. It follows that I am satisfied that the actual change in care occurred on 15 June 2017. Whilst Mr Mordan’s notifications on 24 July and 3 August 2017 were not within 28 days, I also accept he did not consider there to be any substantive change in care until 31 July 2017.

8. In the particular circumstances here, I consider section 54G of the Child Support (Assessment) Act 1989 is engaged. Mrs Mordan was to have 86% care from 15 June 2017, but had no care despite Mr Mordan willingness for her care to resume: paragraphs 54G(1)(a), (b) and (c) are satisfied here. A question arises as to whether Mr Mordan’s notification on 3 August 2017 was made within a period that is reasonable in the circumstances: paragraph 54G(1)(d). Given my finding care changed in fact on 15 June 2017, but allowing for Mr Mordan’s own view that care really only changed from 31 July 2017 (when it became clear to him Mrs Mordan was unlikely to return to Australia), I am prepared to find his notification to the CSA on 3 August 2017 was made within a reasonable period. It then follows that the prior 86% and 14% care percentage determinations ought be revoked with effect from 14 June 2017 and 100% care in Mr Mordan’s favour has effect from 15 June 2017.               

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that Mr Mordan be recorded as having 100% care, with effect from 15 June 2017.