PTKW and Child Support Registrar (Child support second review)

[2015] AATA 889

PTKW and Child Support Registrar (Child support second review) [2015] AATA 889 (20 November 2015)

Division	GENERAL DIVISION
File Number	2015/2574
Re	PTKW
APPLICANT
And	Child Support Registrar
RESPONDENT
And	XXRS
OTHER PARTY

DECISION

Tribunal	Deputy President PE Hack SC
Date	20 November 2015
Place	Brisbane

The decision under review is set aside and a decision substituted that in the period from 21 November 2014 onwards the applicant and the joined party each had 50% of the care of the child S.

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Deputy President PE Hack SC

It is noted that publication of this decision is approved by the Administrative Appeals Tribunal pursuant to section 110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).

CATCHWORDS

CHILD SUPPORT – percentage of care – child “S” engages with both parents – “S” lives with both parents – “S” will be in each residence three to four times per day – nights in care calculation not possible – determination of equal care – evident pattern one of equality – decision under review set aside and substituted.

LEGISLATION

Child Support (Assessment) Act 1989 (Cth), ss 50, 54A

CASES

P v Child Support Registrar [2014] FCAFC 98

REASONS FOR DECISION

Deputy President PE Hack SC

20 November 2015

1. The applicant is the father, and the other party the mother, of an 18 year old who I shall call S. They were, but are no longer, married to each other. They are at odds about the extent to which each of them care for S and thus their requirement to pay, or entitlement to receive, child support.

2. It is common ground that prior to 21 November 2014 the applicant had 48% of the care of S and the other party had 52%. That date is important because it is when the applicant contacted the respondent, the Child Support Registrar, and informed the Registrar that S had been in his care for a considerably greater percentage of time in the period from 26 October 2014. Despite that, on 28 November 2014 the Registrar made an assessment of child support for the 2014 calendar year and the first half of 2015 on the basis that the applicant had 48% of the care of S and the other party 52%.

3. The applicant provided information to the Registrar in early December 2014 however the Registrar determined on 17 December 2014 not to alter the assessment. The applicant objected to that decision. That objection was allowed on 16 February 2015 when a decision was made that the applicant had 83% of the care of S from 21 November 2014 and the other party 17%.

4. The other party then sought a review of the decision in the Social Security Appeals Tribunal. On 1 May 2015 that Tribunal determined that S spent roughly equal time with each parent. The result was that the objection decision was set aside and a decision substituted that the care percentage remain unchanged, that is, the applicant 48%, the other party 52%.

5. The applicant now seeks a review of that decision in this Tribunal.

6. The matter falls to be determined by reference to the Child Support (Assessment) Act 1989 (Cth) however no detailed examination of that Act is required. So far as is presently relevant, the Act requires a determination of a “percentage of care”, but it is silent on the manner in which that is determined. Where there is a “pattern of care” the Registrar must determine the responsible person’s percentage of care for the child during the care period.[1] That percentage must correspond with the actual care that the responsible person has had, or is likely to have, during the care period.[2] By virtue of s 54A of the Act the actual care of a child may be worked out based on the number of nights that the child was, or is likely to be, in the care of the person.

   [1]See s 50(2) of the Act.

   [2]See s 50(3) of the Act.

7. The Child Support Agency has published a policy guide. Understandably, the Guide suggests that “generally” the percentage of care will be worked out on a “number of nights” basis because it will “be the best measure of their percentage of care”. But the Guide recognises, correctly, that only counting nights in care may, in some cases, not accurately reflect the caring arrangement for the child. In such circumstances, the Guide suggests the hours of care may be calculated. No other alternative is suggested in the Guide however that does not mean that other measures of actual care may not be used.[3]

   [3]Cf. P v Child Support Registrar [2014] FCAFC 98 at [49].

8. I should also note that the Guide caters for the situation where the care percentage is not able to be determined by saying:

   If the Registrar is not able to determine a care percentage based upon the actual care, the Registrar will generally accept that the parents share the care of their children equally. 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.

9. As is common in cases such as the present there is a good deal of evidence directed to showing that one or other of the parties had the majority of care. Much of it was unhelpful and, on the view I take of the matter, it need not be rehearsed. What is clear is that S is strong-willed and engages considerably with both the applicant and the joined party. The applicant and the joined party reside quite close to one another – the applicant estimated the distance as 1 kilometre, the joined party referred to a 3-5 minute walking distance. But the consequence of this proximity is that S, in reality, lives with both the applicant and the joined party. She has pets in both residences, a dog with the joined party and three cats with the applicant. And, most importantly, it is common ground that on most days she will be in each residence on three or four occasions.

10. A nights in care calculation is simply not possible in these circumstances. Equally, it is not possible to undertake an hours of care calculation. That being so the Guide suggests a determination of equal care. That has the additional benefit that it reflects what appears to be the reality of the matter if it be approached in a broad-brush manner. S is cared for in each residence every day. The evident pattern is one of equality, as the applicant appeared to accept in the course of his submissions. His concern was that the question had not been decided in this manner in the past; the calculation had always been undertaken on a nights in care basis.

11. The concern is understandable however I cannot alter past determinations. I am concerned only with the pattern of care from 21 November 2014. For that period I am unable to make any meaningful determination of the percentage of care beyond the clear impression that each parent provided care equally.

12. That being so I will set aside the decision under review and substitute a decision that in the period from 21 November 2014 the applicant and the joined party each had 50% of the care of S.

I certify that the preceding 12 (twelve) paragraphs are a true copy of the reasons for the decision herein of Deputy President PE Hack SC

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Associate

Dated 20 November 2015

Date of hearing	5 November 2015
Applicant	In person
Solicitors for the Respondent	Mr A Burgess, Sparke Helmore Lawyers
Other Party	In person