Prickett and Child Support Registrar (Child support)

[2022] AATA 1176

Prickett and Child Support Registrar (Child support) [2022] AATA 1176 (23 March 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC022682

APPLICANT:  Mr Prickett

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member P Noonan

DECISION DATE:  23 March 2022

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that from 8 February 2021 Mr Prickett has 38% care of the child [Child 1] and [Ms A] has 62% care of [Child 1] with effect from 8 November 2021.

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 – tribunal declines to make a determination under subsection 95N(2) – 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 omitted 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 Prickett and [Ms A] are the parents of [Child 1] (the child) and [Child 2] under a registered child support assessment. This review is about a decision made by Services Australia (the Agency) that the care of [Child 1] is 65% to [Ms A] and 35% to Mr Prickett from 8 February 2021.

2. The care of [Child 1] was previously recorded as 49% to [Ms A] and 51% to Mr Prickett from 5 April 2020. On 4 March 2021 Mr Prickett is recorded as advising the Agency that he has 5 nights care of [Child 1] per fortnight from 8 February 2021. On 8 March 2021 the Agency calculated his care as being 35%.

3. On 18 March 2021 Mr Prickett objected to this decision. On 19 April 2021 an objections officer disallowed his objection.

4. On 8 November 2021 Mr Prickett lodged an appeal with the Administrative Appeals Tribunal. [Ms A] advised the Tribunal that she did not wish to participate in the hearing and that she did not wish to be added as a party to the matter. A hearing into the matter was held on 28 February 2022 by conference telephone and Mr Prickett gave evidence to the Tribunal on affirmation. The Child Support Registrar did not participate in the hearing but supplied papers applicable to the matter which were numbered 1 to 263. In addition, the Tribunal had regard to a care diary submitted by Mr Prickett after the hearing.

CONSIDERATION

1. The law that applies in this case is contained in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration Act).

2. The law relevant to care percentage determinations is found in the Act. Sections 49 and 50 of the Act provide for new care decisions to be made. Section 49 applies if the parent “has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Section 50 applies, if the parent “has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Both sections reflect the idea that the Agency makes point-in-time care decisions on the basis of what had happened up until the care decision is made and what is likely to happen thereafter. If for some reason what is likely to happen does not eventuate, a parent can notify the Agency and a new care determination can be made. However, the legislative test in the first instance and on review remains the same: what had happened until the date of the original decision, in this case until 8 March 2021, and what was likely to happen thereafter.

3. Where the care of the child has changed this may result in a decision to revoke the care percentages with respect to the child and replace them with new percentages. However, to do so, the Tribunal must first determine whether the care of the child has changed.

4. The actual or likely pattern of care is generally assessed over a care period to determine the care percentages for each parent, the Tribunal first considered the appropriate care period in this case. In this instance the Tribunal will consider the 12-month period from the care change being 8 February 2021 as an appropriate period.

5. Mr Prickett stated that in early 2020 he and [Ms A] had agreed to 50/50 care due to the uncertainty around the pandemic. Subsequently on 8 February 2021 they had reverted care back to reflect the terms of the court-ordered care and informed the Agency of this; however, in hindsight the school holidays had not been adequately taken into account. In fact care was to be 50% each over the school holidays. He now is faced with situation where he has care recorded by the Agency as 38% for [Child 2] but only 35% for [Child 1] even though he cares for them both at the same time. The Court Orders actually reflect that he has 142 nights per year or 38% care of both children. Mr Prickett noted that he maintains a care record on a printed out monthly calendar reflecting the days and nights care he has of them. He never has one child without the other and the Court Orders are being adhered to, and he just wants the record to correctly reflect his care of the children going forward. The Tribunal notes that Mr Prickett subsequently submitted care records that reflect care as he submitted and finds that he has 142 nights care or 38% care of [Child 1] from 8 February 2021.

6. The Act sets out certain circumstances in which a determination of a percentage of care must be revoked. Specifically, it states that an existing determination must or may be revoked if the Registrar is notified that the care taking place does not correspond with the responsible person’s existing care of the child. In this instance section 54F is applicable as the cost percentage to each of the parents changes as per section 55C of the Act. In the circumstances pertaining to this matter, the Tribunal is satisfied that revoking the earlier care determination is appropriate. Accordingly, the Tribunal revokes the existing determination.

7. The date of effect for the new determination is the date of application to the Tribunal as the application was made more than 28 days after notice of the decision was given as per section 95N of the Registration Act. Accordingly, Mr Prickett has 38% care of the child [Child 1] from 8 February 2021 with effect from 8 November 2021. The Tribunal does not consider special circumstances are relevant in this matter, noting that it was Mr Prickett himself who originally agreed to the incorrect care change with respect to [Child 1] directly with the Agency and there was nothing preventing him from attempting to correct the care record earlier.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that from 8 February 2021 Mr Prickett has 38% care of the child [Child 1] and [Ms A] has 62% care of the child [Child 1] with effect from 8 November 2021.