Quade and Mabee (Child support)

[2018] AATA 3994

Quade and Mabee (Child support) [2018] AATA 3994 (10 August 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/MC013988

APPLICANT:  Mr Quade

OTHER PARTIES:  Child Support Registrar

Ms Mabee

TRIBUNAL:Member J Longo

DECISION DATE:  10 August 2018

DECISION:

The Tribunal affirms the decision under review.

CATCHWORDS

Child support - Percentage of care - No change to the likely pattern of care - Refusal to revoke the existing percentages of care - 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.Mr Quade and Ms Mabee are the parents of [Child 1]. Mr Quade is the parent liable to pay child support.

2.From 19 April 2017, the Department of Human Services – Child Support (the Department) had determined that Ms Mabee had a percentage of care of 86% for [Child 1] and Mr Quade had a percentage of care of 14% for [Child 1].

3.On 5 December 2017, Mr Quade notified the Department that the care of [Child 1] had changed. Mr Quade stated that [Child 1] was in his care 47% (172 nights) of the time and that Ms Mabee had 53% (193 nights) care of [Child 1] from 16 October 2017.

4.On 20 January 2018, the Department refused to change the care determination. Mr Quade disagreed with the decision and lodged an objection on 29 January 2018. On 16 April 2018, an objections officer decided to disallow Mr Quade’ objection.

5.On 4 May 2018, Mr Quade lodged an application to the Administrative Appeals Tribunal (the tribunal) for a review of the decision. The hearing took place on 10 August 2018. Mr Quade and Ms Mabee spoke to the tribunal and gave sworn evidence. In making its decision the tribunal took into consideration the documents (numbered 1 to 155) provided by the Department which were also sent to Mr Quade and Ms Mabee.

CONSIDERATION

6.The law that applies in this case is the Child Support (Assessment) Act 1989 (the Act).

Has there been a change in the care of [Child 1]?

7.Mr Quade confirmed that apart from when they initially separated there were no court orders or parenting plans in place for the care of [Child 1]. The care was determined by both parents and changed along the way. Mr Quade stated that he had greater care of [Child 1] from May 2017. Prior to this date, he confirmed that [Child 1] was predominately in Ms Mabee’s care due to the time he was spending on his school presentation night. Mr Quade confirmed that [Child 1] did not visit in May 2017 and also from February 2018 until June 2018. However, from June 2017 he had the care of [Child 1] as follows:

·31 May 2017 to 16 June 2017 — 16 nights

·26 June 2017 to 30 June 2017 — 5 nights

·14 July 2017 to 22 July 2017 — 8 nights

·30 September 2017 to 4 October 2017 — 5 nights

·16 October 2017 to 2 November — 17 nights

·3 November 2017 to 24 November 2017 — 11 nights

·10 December 2017 to 25 December 2017 — 8 nights

8.Ms Mabee stated that she did not disagree with the dates specified by Mr Quade prior to October 2017 as she did not keep records. However, from October 2017, she worked out the care Mr Quade had of [Child 1] in her diary. She calculated these dates after she spoke to the Department. Ms Mabee stated that from Christmas until June 2018, Mr Quade did not have any care of [Child 1]. She does not believe that Mr Quade had the 172 nights of care from May 2017 as he has indicated.

9.Section 50 of the Act requires a new determination of a percentage of care to be made where an existing determination has been revoked and the tribunal is satisfied either that the person has had, or is likely to have, a pattern of care during a care period.

Should the existing care determinations in relation to [Child 1] be revoked?

10.Subsection 54F(1) of 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 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 or children.

11.In this case, the tribunal has determined that a care determination was made under section 50 of the Act from 19 April 2017 and that Ms Mabee had a percentage of care for [Child 1] of 86% and that Mr Quade had a percentage of care of 14%. Therefore, paragraph 54F(1)(a) of the Act is satisfied. Mr Quade contacted the Department on 5 December 2017 to advise that the care that was taking place for [Child 1] did not correspond with the existing percentage of care as determined. Therefore, paragraph 54F(1)(c) of the Act is satisfied.

12.The Act also requires that there would be a change in the cost percentage if another percentage of care were determined for Mr Quade under section 50 of the Act. Section 50 of the Act provides that if the tribunal revokes a determination and is satisfied that a party has had, or is likely to have, a pattern of care of a child, the tribunal must determine the care during the care period. ‘Actual care’ may be worked out based on the number of nights the child was or will be in the care of the person (subsection 54A(1) of the Act).

13.The tribunal is required to consider what the actual care Mr Quade and Ms Mabee have had or are likely to have of [Child 1] during the care period. The care period is such a period as the Child Support Registrar considers to be appropriate having regard to all the circumstances (section 50 of the Act). The Department’s policy in this regard, as set out in Chapter 2.2.1 of the Child Support Guide, is that a care period is generally a 12-month period from the day on which the actual care for a child changed. This policy is not binding on the tribunal but the tribunal has determined that it is appropriate in this matter. In this case, the Department determined that the care period should start from 16 October 2017. However, Mr Quade did not contact the Department until 5 December 2017.

14.Mr Quade’ submission to the tribunal was that [Child 1]’s care changed prior to October 2017. He stated that in May 2017 he did not have care of [Child 1] due to his preparations for the school presentation but this was not the case from June 2017 onwards. From the time Mr Quade contacted the Department, the care had increased. Ms Mabee stated that from the end of December 2017 until June 2018, Mr Quade had two days of care of [Child 1].

15.The tribunal has determined that the care for Mr Quade and Ms Mabee accords with the determination of care already used by the Department at the time Mr Quade notified of a change on 5 December 2017. While there may have been a change to the care prior to the date he notified the Department, which meant he had [Child 1] for a higher percentage of care than was being used by the Department, from the time Mr Quade notified the Department of a change in care the care had reverted to the care recorded by the Department. As discussed above, while the care period usually commences from the date the care changed, in this matter the tribunal has determined that the care period should commence from the date Mr Quade notified the Department of the change in care, that is, 5 December 2017. This means that the 12-month period should start from this date. The tribunal has formed the view that as the care had reverted to what was already determined by the Department and any change in care stated to have occurred by Mr Quade could not be applied any earlier than 5 December 2017, it is more appropriate to look at a 12-month period from the date of notification.

16.Therefore, the tribunal is not satisfied that from 5 December 2017 there has been a change in the care which constitutes a change to the pattern of care, as required under section 50 of the Act. Accordingly, the tribunal has decided not to revoke the existing care determination.

17.As the tribunal has concluded that the care percentages were the same as Mr Quade and Ms Mabee’s care percentages from 19 April 2017, paragraph 54F(1)(d) of the Act is not satisfied. In the circumstances the tribunal cannot revoke the existing determinations of percentages of care as there has been no change in the care percentages.

DECISION

The Tribunal affirms the decision under review.