Norman and Walle (Child support)

[2023] AATA 3742

Norman and Walle (Child support) [2023] AATA 3742 (14 September 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/MC026123

APPLICANT:  Mr Norman

OTHER PARTIES:  Child Support Registrar

Ms Walle

TRIBUNAL:Senior Member S Trotter

DECISION DATE:  14 September 2023

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that percentage of care determinations with respect to [Child 1] are 38% to Mr Norman and 62% to Ms Walle effective from 1 December 2022, effective in the assessment from 6 February 2023.

CATCHWORDS

CHILD SUPPORT – percentage of care – what was the likely pattern of care from the start of the administrative assessment – decision under review affirmed 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. As relevant to this application, Mr Norman and Ms Walle are parties to a child support case registered with Services Australia – Child Support (Child Support) from 6 February 2023 in relation to financial support to be provided for [Child 1] (born 2006). The application concerns a single decision of Child Support about the percentage of care determinations for each parent for [Child 1] utilised in calculation of the child support liability from the commencement of the case on 6 February 2023.

2. On 17 February 2023, Child Support decided to accept an application for assessment of child support by Ms Walle and determined percentages of care of 0% for Mr Norman and 100% for Ms Walle of [Child 1] from 1 December 2022, effective from the assessment start date of 6 February 2023.

1. On 27 February 2023, Mr Norman objected to this decision and, on 15 May 2023, a Child Support objections officer disallowed the objection.

1. On 18 May 2023, Mr Norman lodged an application with the Tribunal seeking an independent review of Child Support’s decision, stating as follows:

   The applicant thought he had longer to submit documentation during the objection review process. He would like to submit further evidence that he has more than 0% care. His daughter was with him last week, for example.

1. The hearing of the application was held on 14 September 2023. Mr Norman and Ms Walle both participated in the hearing by conference telephone and gave evidence on affirmation. The Child Support Registrar did not participate in the hearing and did not attend.

2. In considering the application, the Tribunal took into account the oral evidence of Mr Norman and Ms Walle and the documentary material provided by Child Support to the Tribunal, the applicant and the second party (Exhibit 1, pages 1 to 69).

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act). Unless otherwise noted, all legislative references in these Reasons are to the Act. The legislation provides the Registrar, that is, Child Support, and the Tribunal on review, with rules for assessing and changing percentage care determinations which are then used as part of the child support formula to assess child support rates.

2. The issue to be determined by the Tribunal is the percentage of care determinations to apply in the assessment for each parent from when the child support case was registered on 6 February 2023.

CONSIDERATION

1. It was not in dispute between Mr Norman and Ms Walle that the child support case has now ceased as Ms Walle has withdrawn the case. However, Mr Norman seeks that the correct percentages of care be recorded for each parent for the time the case was on foot. Further Mr Norman and Ms Walle both agreed that the care of [Child 1] for the 12-month period commencing 1 December 2022 (and generally) corresponds with percentages of care of 38% to Mr Norman and 62% to Ms Walle, with [Child 1] generally spending a week with each of them during school term time and additional time with Ms Walle over school holidays. Mr Norman’s evidence was that at the time he was contacted by Child Support, it was school holidays such that as per their pattern [Child 1] was more with Ms Walle at that specific time resulting in a misunderstanding that [Child 1] was in Ms Walle’s care 100% of the time overall, when that is not the case.

2. Sections 49 and 50 require initial percentage of care determinations to be made upon initial registration of a child support case, and generally for new percentage of care determinations to be made when existing percentage of care determinations are revoked. Consideration is first required as to whether there is a pattern of care or no pattern of care for a child during a care period.

3. The term pattern of care is not defined in the legislation. A care period is defined in the Act as being such period as considered to be appropriate having regard to all the circumstances. The Child Support Guide states that a care period is generally the 12-month period starting from the date the actual care of the child began or changed. The same care arrangements will then be assumed to continue to apply after the end of the care period unless Child Support is notified or becomes aware that the actual care taking place does not correspond with the existing percentage of care determination and the requirements of the legislation are satisfied for new percentage of care determinations to be made.

4. Both sections 49 and 50 first require consideration of whether the relevant person has had or is likely to have, no pattern of care or a pattern of care for a child. If applicable, section 49 then requires a percentage of care determination of 0% for the person with no pattern of care. If applicable, section 50 then requires that the percentage of care determined for the relevant person must be a percentage that corresponds with the actual care … (the) person has had, or is likely to have, during the care period. Section 54A provides that the actual care of a child that a person has had, or is likely to have, during a care period may be worked out based on the number of nights that a child was, or is likely to be, in the care of a person.

5. The legislative test therefore first requires consideration of whether there is a pattern of care of a child for a care period and then assessment of the actual care a person has had, or is likely to have, during the care period.

6. The Tribunal is satisfied that a 12-month care period from 1 December 2022 is appropriate in the circumstances in relation to the percentage of care determinations to be made from the beginning of the child support case, that is, 6 February 2023.

7. The Tribunal is satisfied on the evidence that both Mr Norman and Ms Walle have had, and were likely to have, a pattern of care of [Child 1] from the start of the care period.

8. The Tribunal then considered the actual care that each of Mr Norman and Ms Walle ‘has had, or is likely to have’ during the care period based upon Mr Norman’s and Ms Walle’s evidence. Based upon the undisputed evidence of Mr Norman and Ms Walle the Tribunal is satisfied that the actual care of each corresponds to Mr Norman having actual care of 38% and Ms Walle having actual care of 62%.

9. Therefore percentage of care determinations of 38% for Mr Norman and 62% for Ms Walle will apply from the start of the child support case.

10. As this is different to the decision of the objections officer, the decision under review will be set aside and a new decision substituted.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that percentage of care determinations with respect to [Child 1] are 38% to Mr Norman and 62% to Ms Walle from 1 December 2022, effective in the assessment from 6 February 2023.