Rainford and Channing (Child support)

[2019] AATA 435

Rainford and Channing (Child support) [2019] AATA 435 (6 February 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/BC015563

APPLICANT:  Mr  Rainford

OTHER PARTIES:  Ms Channing

Child Support Registrar

TRIBUNAL:Member P Jensen

DECISION DATE:  6 February 2019

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT - percentage of care – shared care in accordance with court orders – whether the pattern of care changed due to overseas travel – 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

1. Mr Rainford and Ms Channing are the parents of [Child 1] and [Child 2]. A child support case was registered in 2009 and each parent was recorded as providing 50% care to both children.

2. On 3 September 2018, Mr Rainford informed the Department of Human Services – Child Support (“the CSA”) that he would be providing a one-off block of care of at least four weeks’ duration while Ms Channing was travelling overseas, and that his block of care had commenced on 31 August 2018. The CSA decided to record him as providing 100% care from 31 August 2018. Ms Channing objected to that decision. An objections officer allowed her objection and decided not to record a change in care from 31 August 2018. Mr Rainford sought further review by the Tribunal.

3. The relevant facts are not in dispute. The parents provide care pursuant to Court orders which, broadly speaking, state that each parent is to provide week-about care from Friday to Friday, and each parent “shall be entitled to spend block time with the children for up to two periods of two weeks each year”. In early 2018, Mr Rainford informed Ms Channing that he would provide a two-week block of care during the children’s spring school holidays. The last day of school prior to those holidays was Friday, 21 September 2018.

4. If Ms Channing had not travelled overseas, the parents would have provided the following care pursuant to their general pattern of annual care whereby each parent provides 50% care:

   Week commencing                    Parental care

   24 August 2018                  Mother, week-about care

   31 August 2018                  Father, week-about care

   7 September 2018                Mother, week-about care

   14 September 2018                Father, week-about care

   21 September 2018                Father, two-week block of care

   28 September 2018                Father, two-week block of care

   5 October 2018                  Mother, week-about care

5. As a result of Ms Channing travelling overseas, she did not provide care during the week commencing 7 September 2018. She otherwise continued to provide care pursuant to the parents’ general pattern of annual care.

6. Care decisions are made pursuant to the Child Support (Assessment) Act 1989 (“the Act”). Put simply, a new care decision can be made if there has been a relevant change in the parents’ pattern of care: see Division 4 of Part 5 of the Act. Not every deviation from an existing pattern of care constitutes a new pattern of care; it is a question of degree in the particular circumstances of the case. Departmental policy has been developed to assist decision-makers when deciding whether there has been a change in the pattern of care. The Tribunal is not bound by departmental policy but will apply it unless there is a reason to do otherwise. The relevant policy appears at 2.2.2 of the Child Support Guide, which includes the following:

   What constitutes a change to the pattern of care will depend upon the individual circumstances of the case. For example, when considering a change that would result in a parent's care falling below 14%, after a pattern of at least 14% had been previously established, the Registrar will consider that the pattern of care has changed when:

   ·the parent misses 3 care events in a row,

   ·the parent misses 5 events of care out of 8, or

   ·the parent misses 20% of the care over 12 months (when calculating 20% the Registrar will not include an isolated event that is clearly not a change in the pattern).

   …

   A care event is a night of care or several consecutive nights of care that follow a recurring pattern.

   …

   Where a parent or carer unexpectedly and temporarily provides 100% care of a child, the Registrar may recognise that the person has 100% care although they are not expected to continue to have that level of care. In these situations, the Registrar will determine the care over a short care period related to the unexpected circumstance (subsections 49(1)(a) and 50(1)(a)). When care returns to the normal pattern, either carer may request a new care percentage determination.

7. In the current case, each parent’s provision of 50% care pursuant to the Court orders included the occasional provision of a three-week block of care, i.e. a two-week block of care plus the one week of week-about care that precedes or follows that two-week block of care. Once that broader pattern of care is properly understood, it becomes clear that Mr Rainford did not provide an additional five-week block of care; he provided an additional one week of care, which was the one care event that Ms Channing missed. That relatively minor deviation from the existing general pattern of care did not constitute a new pattern of care. The objections officer’s decision to not record a change in care was the preferable decision in the circumstances.

DECISION

The decision under review is affirmed.