PHHZ and Child Support Registrar (Child support second review)

[2018] AATA 2595

PHHZ and Child Support Registrar (Child support second review) [2018] AATA 2595 (6 August 2018)

Division:GENERAL DIVISION

File Number(s):      2016/6482

Re:PHHZ

APPLICANT

AndChild Support Registrar

RESPONDENT

AndVYYN

OTHER PARTY

DECISION

Tribunal:Senior Member M J McGrowdie

Date:6 August 2018

Place:Sydney

The Tribunal affirms the decision under review.

.............................[SGD]...........................................

Senior Member M J McGrowdie

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.

CATCHWORDS

SOCIAL SECURITY - child support - percentage of care – whether there was a change in care – actual care - decision affirmed

LEGISLATION

Child Support (Assessment) Act 1989 (Cth)

Child Support (Registration and Collection) Act 1988 (Cth)

SECONDARY MATERIALS

Department of Social Services – “Child Support Guide”

REASONS FOR DECISION

Senior Member M J McGrowdie

6 August 2018

1. The Applicant is the mother of “C”, a daughter of the Applicant and the Other Party.

2. The Applicant and the Respondent have shared care of C but in different percentages.  The Other Party lives outside of the state of NSW.

3. The issues are as follows:

   (a)whether there was a change in care that the Applicant and the Other Party provided to C from 27 December 2015; and

   (b)what the percentage of care attributed to the Applicant and the Other Party is for the relevant care period.

4. The relevant legislative provisions are contained in the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act).  Of further relevance is the Child Support Guide (the Guide).

5. Part 5, Division 4 of the Assessment Act provides for the determination of the percentage of care of a child.

6. The assessment of a care percentage applies in respect of an applicable period.  That period may be for 12 months but can be greater or less depending on the particular circumstances of the case. The period is determined by the Child Support Registrar (the Registrar) or the Tribunal, as the case may be.

7. Such an assessment is to be made if and when there has been a change in care that the Applicant and the Other Party provided that to the child. Clearly, there was a change in care on or after the commencement of the end of year holidays in 2015. A question arises as to the date this occurs.

8. In the present matter, the final determination of the Registrar was that the Applicant’s share percentage was 86% and the other party’s was 14% as from 27 December 2015 (the objection decision).  This was affirmed by the Tribunal (AAT1) on 27 October 2016 in a first level review of the decision of the Registrar (the reviewable decision).

9. The relevant care period is a period of two years with the commencement of the care period being 27 December 2015, which is when the actual care of C by the Other Party commenced for the December/January school holidays.

10. A person’s care percentage will generally be based on the number of nights that the child was, or was likely to be, in the care of a person during the care period under the care arrangement (Section 54A of the Assessment Act).

11. Also, the following is to be found in the Guide at 2.2.2:-

    The Registrar will usually determine a percentage of care based on the actual care that each parent or carer has of the child. The only circumstance in which the Registrar will not use actual care to determine the care percentage is in limited circumstances where a parent or carer is not complying with a written agreement, court order or parenting plan and an interim care decision is in effect.

12. In the present matter, there was an Order made in the Federal Circuit Court on 7 May 2014 in respect of C which the Applicant and Other Party have generally sought to follow.

13. Clause 7 of the Order operated such that, from the end of the school term in 2015 through to 2017, Christmas was to be spent by C with the Applicant in 2015 and with the Other Party in 2016.  The Order sets out that in the 2015/16 holiday period C spend time with the Other Party from 27 December 2015 to 3 January 2016, and from 11 January 2016 to 23 January 2016.

14. Certainly, it is appropriate for the care period to extend over two years given that each parent had alternate care of C for Christmas, and a two year period accommodates the need to balance this arrangement.

15. It then becomes necessary to make an assessment of the actual care in the relevant two year period.

16. The Applicant says that the period should commence at the date of the commencement of the school holiday in 2015, whereas the Other Party says it should be 27 December 2015 when actual care commenced in that period.

17. Given that a two year period from 27 December 2015 does cover two Christmas dates, I would consider that it is appropriate to take the commencement date from the date which the Other Party had care of C in the end of year holiday period in 2015, as did AAT1.  That was the date that the actual care of C changed.  This is also consistent with the Orders of the Federal Circuit Court.

18. The percentage of care is to be based on actual care (s.54A of the Assessment Act).

19. It seems to generally be the case that care of C followed the Orders of the Federal Circuit Court.  However, there are two matters of interpretation in relation to the Orders.

20. Firstly, the Orders provide that “…for the purposes of these orders all references made to school and school holidays refer to the New South Wales Gazette school term and holiday periods”.

21. In fact, there is no publication called “the New South Wales Gazette”.  There is the “Education Gazette” from the Department of Education and Training which sets out school term dates.  Further, there is the website of the NSW Board of Studies which includes “school development days” in the term dates.  This information could be said to inform teachers whereas the Education Gazette sets out “holidays” for the information of students and parents.

22. It seems to me that the Education Gazette sets out what periods are to be treated as school holidays. This is what AAT1 also concluded.

23. The effect of this is to “limit” the school holiday periods by reference to school days.   This is supported by the information from the Roads & Maritime Services that the 40km/h speed limit for school zones is enforced on “school development days”, as students can still attend school on those days. Accordingly, school holidays would not include “school development days”.

24. The second matter regarding the interpretation of the orders is Order 23(c) which provides that “The conclusion of the Father’s 2^nd half of each short holiday period shall be 1 day prior to the day that [C] is to attend school in the forthcoming school term”.

25. The intention of the orders is clearly to equally divide between the Applicant and the Other Party, C’s care during holidays and so it makes sense that “1 day prior” means the day immediately before and not one clear day of the school term. This was the approach of AAT1.

26. I consider that the dates of care of the Other Party set out in the decision of AAT1 for the care period 27 December 2015 to 26 December 2017 are correct and accurately set out the actual care in respect of the care period. It was on 27 December 2015 that there was a change in care consistent with the Federal Court Orders and the Other Party commenced actual care for the end of year holidays in 2015.

27. It might be that the pattern of care has now altered. However, that would not be something that comes within the ambit of this determination.

28. Accordingly, the decision of AAT1 is affirmed.

I certify that the preceding 28 (twenty -eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member M J McGrowdie

.................................[SGD].......................................

Associate

Dated: 6 August 2018

Date(s) of hearing:	13 March 2017 and 28 April 2017
Applicant:	In person
Solicitors for the Respondent:	Mr K Eskerie - Sparke Helmore
Other Party:	By telephone