Oberlander and Worland (Child support)

[2019] AATA 2194

Oberlander and Worland (Child support) [2019] AATA 2194 (3 June 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/SC016270

APPLICANT:  Mr Oberlander

OTHER PARTIES:  Child Support Registrar

Ms Worland

TRIBUNAL:Member M Baulch

DECISION DATE:  3 June 2019

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – what was the likely pattern of care – parents living under the same roof – shared care appropriate – 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. The Child Support (Assessment) Act 1989 (the Act) provides for an administrative assessment of the child support payable by one separated parent to the other.  It uses a statutory formula which contains variables such as the parents’ adjusted taxable incomes, the number of children, their ages and their percentages of care. 

2. This application for review is about the child support assessment applying to Mr Oberlander and Ms Worland.  They are the separated parents of three children.  The child support assessments made by the Department of Human Services – Child Support (the Department) at the relevant time recorded Ms Worland as having 100% care of those three children and Mr Oberlander as having 0% care.

3. On 30 November 2018 Mr Oberlander contacted the Department to advise that he had 100% care of the children and Ms Worland had 0% care from 17 September 2018.  A departmental employee considered that information and decided, on 22 January 2019, that the percentages of care applying to the child support assessment should record Mr Oberlander as having 100% care of all three children.  This constituted a terminating event and Mr Oberlander ceased to be liable to pay child support to Ms Worland from 17 September 2018.

4. Ms Worland objected to that decision and, on 3 April 2019, that objection was partly allowed.  The objections officer decided that from 17 September 2018 the percentages of care should record Mr Oberlander as having 50% care of all three children and Ms Worland as having 50% care (the decision under review).  On 5 April 2019 Mr Oberlander applied to this tribunal seeking an independent review of the Department’s decision.

5. A hearing into the application for review was held on 3 June 2019. Mr Oberlander discussed the application for review with the tribunal by telephone and gave sworn evidence during the hearing. Neither Ms Worland nor a representative of the Child Support Registrar participated in the hearing. The tribunal had before it relevant documents provided to it by the Department pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, which were labelled folios 1 to 69, copies of which had been sent to Mr Oberlander and Ms Worland by the Department prior to the hearing.

ISSUES

1. The statutory provisions relevant to this review application are found within the Act.

2. The issue which arises in this case is whether or not there should be a change to the care percentages applying to the child support assessment in respect of Mr Oberlander’s and Ms Worland’s three children, and if so, from when the new care percentages should apply.

CONSIDERATION

1. Sections 49 and 50 of the Act require consideration of the actual, or likely, pattern of care that the parents will have in relation to their children during a care period.  Section 54A of the Act provides that the extent of care that a person is to have may be worked out on the number of nights that a child is likely to be in that person’s care in a care period.

2. The Department’s records show that since at least 27 June 2017 the percentages of care applying in respect of Mr Oberlander’s and Ms Worland’s three children recorded Ms Worland as having 100% care.   On 30 November 2018 Mr Oberlander advised the Department that he had 100% care of all three children from 17 September 2018 and that Ms Worland had no care of the three children.

3. At hearing Mr Oberlander confirmed that there are no court orders or parenting agreements applying in relation to the care of his and Ms Worland’s three children.

4. Mr Oberlander’s evidence was that he and Ms Worland continued to reside in the same home.  He stated that he paid all the expenses relating to Ms Worland and the children.  He made arrangements for the children to attend child care on Wednesday, Thursday and Friday each and they were often cared by their grandmother on other days.  Mr Oberlander stated that there were many occasions when Ms Worland was not at home overnight, and submitted that he was the carer for the children on these occasions.

5. The term care is not defined in the child support legislation.  I did, however, have regard to the decision of Federal Magistrate Hughes (as she then was) in Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959, where it was stated:

   53. Given the lack of a relevant statutory definition of “care” of a child, all parties requested that the Court provided some guidance in relation to the matters that should be taken into account in considering whether and to what extent the first respondent continued to provide care for the child the subject of these proceedings.

   …

   56. In my view, in determining whether and to what extent a person has care of a child for the purpose of the Child Support (Assessment) Act 1989 and the Child Support (Registration and Collection) Act 1988, it is necessary to consider the following:

   a.     To what extent does the person meet the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extra curricular activities?

   b.     To what extent does the person make arrangements for others to meet the needs of the child?

   c.     To what extent does the person pay for the costs of meeting the needs of the child?

   d.     To what extent does the person otherwise provide financial support for the child?

   e.     To what extent does the child provide for his or her own needs or have those needs met from another source?

   f.      To what extent is the child financially independent or financially supported from another source?

6. I also noted the Department’s policy, set out in the Child Support Guide, at 2.2.1, that:[1]

   Where parents are separated but living in the same house, the Registrar will determine each parent's percentage of care for a child based on the individual circumstances of the case and evidence available. Generally, where the parents contribute in a similar manner to the care of the child, they will be regarded as sharing equally in the care of the child. In this case, the Registrar will determine that each parent has a care percentage of 50%. This care percentage will remain in place until either parent is able to demonstrate that the actual care of the child is something other than equally shared.

   [1] Guides to Social Policy Law, Child Support Guide, Department of Social Services, version 4.40. Can be found at >

   Having regard to Mr Oberlander’s evidence, it appeared to me that he and Ms Worland contributed equally to the children’s care.  I therefore found that there was a pattern of care such that Mr Oberlander had 50% care of the children and Ms Worland had 50% care. 

7. According to section 54F of the Act, an existing care percentage decision must be revoked if the Department is notified, or becomes aware, that the actual care that is taking place does not correspond with the existing percentages of care recorded and that change would alter the cost percentage used for the parent in the administrative assessment.  Section 55C of the Act contains a table that is used to work out a person’s cost percentage:

Cost percentages
Item	Column 1 Percentage of care	Column 2 Cost percentage
1	0 to less than 14%	Nil
2	14% to less than 35%	24%
3	35% to less than 48%	25% plus 2% for each percentage point over 35%
4	48% to 52%	50%
5	more than 52% to 65%	51% plus 2% for each percentage point over 53%
6	more than 65% to 86%	76%
7	more than 86% to 100%	100%

1. I identified that the change in care percentage will result in a change to the cost percentages applying for both parents and therefore decided that the existing care percentage determinations must be revoked.

2. Subsection 54F(2) of the Act prescribes when a care percentage revocation takes effect.  If the Department is advised of the change in the care arrangements within 28 days of that change occurring, the revocation takes effect on the day before the change in care.  However, if notification occurs more than 28 days after the change in care arrangements, the revocation of the care determinations takes effect on the day before the day the Department was notified of the change in care.

3. The change in care is reported to have occurred on 17 September 2018 and Mr Oberlander advised the Department that care had changed on 30 November 2018, which was more than 28 days after the change in care arrangements occurred.  Therefore the existing care determinations are revoked from 29 November 2018.

4. As I have revoked the existing care percentage determinations that apply in respect of the three children, I must make new care percentage determinations that reflect the current pattern of care for the children.  Accordingly:

   ·       Pursuant to section 50 of the Act, I determined that Mr Oberlander’s percentage of care for the three children was 50%.

   ·       Pursuant to section 50 of the Act, I determined that Ms Worland’s percentage of care for the three children was 50%.

   According to section 54B of the Act, the new care determinations apply from the day after the previous care determinations were revoked, that is, from 30 November 2018.

5. Having arrived at a decision that is identical to that made by the objections officer, I therefore affirmed the decision under review.

DECISION

The decision under review is affirmed.