Osborn and Child Support Registrar (Child support)

[2019] AATA 4888

Osborn and Child Support Registrar (Child support) [2019] AATA 4888 (6 September 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2019/BC016691 & 2019/BC016737

APPLICANT:  Mr Osborn

OTHER PARTY:  Child Support Registrar

TRIBUNAL:Member P Jensen

DATE OF DECISION:  6 September 2019

DECISIONS:

The decisions under review are affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determinations revoked and new determinations made – 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 DECISIONS

1. Mr Osborn and Ms Osborn are the parents of [Child 1]. A child support case was registered with the Department of Human Services – Child Support (“the CSA”) on 8 May 2016.

2. On 17 May 2016 the CSA decided to record Mr Osborn as providing 50% care and Ms Osborn as providing 50% care to [Child 1] from 8 May 2016.

3. On 5 October 2017 the CSA decided to record Mr Osborn as providing 14% care and Ms Osborn as providing 86% care to [Child 1] from 25 September 2017.

4. On 27 March 2019, Mr Osborn objected to both care decisions. An objections officer disallowed both objections. Mr Osborn applied to the Tribunal for further review. Ms Osborn was invited to apply to be made a party to the applications for review, but did not do so. I heard the matters on 6 September 2019. Mr Osborn participated in the hearings by conference phone.

5. According to CSA file notes, Ms Osborn stated on 10 May 2016 that she was providing 100% care. The following day, at 2:56 pm, Mr Osborn confirmed that Ms Osborn was providing 100% care. At 3:00 pm, the CSA noted:

   [Ms Osborn] was with [Mr Osborn] during his pre reg interview and asked to speak to me regarding changes in care and collection.

   Care:

   [Ms Osborn] changed care recorded and said both parties had negotiated shared care 50/50

   One week on one week off

   Collection:

   [Ms Osborn] changed her mind from CSA collect to private collect
   Discussed 3mth safety net

   [Ms Osborn] said she would rather [Mr Osborn] pay her directly

6. On 17 May 2016 the CSA wrote to both parents and informed them that the child support case had been registered, and that each parent had been recorded as providing 50% care, and that Mr Osborn’s rate of child support payable was $3,477 per annum. Neither parent contacted the CSA to suggest that that recorded care was incorrect until 8 November 2018, when Mr Osborn informed the CSA that he had always provided 100% care. I consider the contemporaneous file notes, and the absence of any relevant contact by either parent with the CSA following the making of that decision, to be the best evidence on point. I find that in May 2016 each parent had been providing, and had been likely to continue to provide, 50% care.

7. Care decisions are made pursuant to the Child Support (Assessment) Act 1989 (“the Act”). Decision makers are required to determine the pattern of care a parent “has had, and is likely to have,” during the appropriate care period: sections 49 and 50 of the Act. The decision to record each parent as providing 50% care, with effect from 8 May 2016, will be affirmed.

8. On 25 September 2017, Ms Osborn informed the CSA that there had been a change in care and the parents had agreed that Mr Osborn would provide one night of care per week. On the same day, the CSA contacted Mr Osborn and confirmed the change in care. On 5 October 2017 the CSA decided to record Mr Osborn as providing 14% care and Ms Osborn as providing 86% care, with effect from 25 September 2017. The CSA wrote to both parents and informed them of the decision it had made, and that Mr Osborn’s rate of child support payable had increased to $4,174 per annum. Again, neither parent contacted the CSA to suggest that that recorded care was incorrect until 8 November 2018, when Mr Osborn informed the CSA that he had always provided 100% care. Again, I consider the contemporaneous file notes, and the absence of any relevant contact by either parent with the CSA following the making of that decision, to be the best evidence on point. The decision to record Mr Osborn as providing 14% care and Ms Osborn as providing 86% care, with effect from 25 September 2017, will be affirmed.

9. It is worth noting one further matter. It appears that at some point in time, which may have been late 2018, Ms Osborn applied to the CSA to have it collect the ongoing child support payable, which in turn appears to have prompted Mr Osborn to dispute the recorded care of [Child 1]. On 8 November 2018, Ms Osborn stated that Mr Osborn “is lucky to have regular care”, i.e. care that falls within the range from 14% to less than 35%: section 5 of the Act. However, on 20 November 2018 the CSA noted:

   Asked [Ms Osborn] about the care and she advised that she believes the care is 50/50. Asked [Ms Osborn] from what date this occurred. [Ms Osborn] believes within the last 2 months as [Mr Osborn] has stopped drinking. [Ms Osborn] said that [Mr Osborn] cannot have full care of the child because he works full time.

10. On 21 November 2018 the CSA noted:

    [Ms Osborn] confirmed that child is sleeping over nearly all nights at [Mr Osborn’s] house, although she claims that she travels to [Mr Osborn’s] house every day to help [Child 1] get ready for school etc then picks him up after school.

    [Ms Osborn] states this has been going on for some time.

11. Notwithstanding those concessions by Ms Osborn, the CSA decided on 28 December 2018 to not record a further change in care, but it based its decision on the care provided from 8 May 2016 to 7 May 2017: page 57 of the hearing papers. It is not immediately apparent that the CSA has made a care decision in respect of the change in care that Ms Osborn reported on 20 November 2018. The CSA may wish to give further consideration to that matter.

DECISIONS

The decisions under review are affirmed.