Rawding and Capstick (Child support)

[2024] AATA 381

Rawding and Capstick (Child support) [2024] AATA 381 (6 February 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/SC027000

APPLICANT:  Ms Rawding

OTHER PARTIES:  Child Support Registrar

Mr Capstick

TRIBUNAL:Member P Jensen

DECISION DATE:  6 February 2024

DECISION:

The decision under review is set aside and, in substitution, Mr Capstick is recorded as providing 12% care for [Child 1] and [Child 2] with effect from 11 April 2022 and Ms Rawding is recorded as providing 88% care for [Child 1] and [Child 2] with effect from 14 April 2023.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the pattern of care – 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

1. Mr Capstick and Ms Rawding are the parents of [Child 1] and [Child 2]. Services Australia – Child Support (Child Support) recorded Mr Capstick as providing 20% care and Ms Rawding as providing 80% care for the children from when the child support case was registered, which was 23 April 2021.

2. On 14 April 2023, Ms Rawding reported a change in care from 11 April 2022. Child Support subsequently decided to record Mr Capstick as providing 12% care for the children with effect from 11 April 2022 and Ms Rawding as providing 88% care for the children with effect from 14 April 2023. The different dates of effect were the result of the delay in reporting the change in care: sections 50, 54B and 54F of the Child Support (Assessment) Act 1989 (the Act).

3. Mr Capstick promptly objected to that decision. On 20 July 2023, Child Support spoke to Mr Capstick and noted:

   I have the children two nights every fortnight and some ad-hoc nights of around 10 nights per year so I have the care reflected as regular care and not what it is now.

4. On 2 November 2023 an objections officer allowed Mr Capstick’s objection and decided to not record a change in care from 11 April 2022. Ms Rawding promptly applied to the Tribunal for further review. I heard the matter on 6 February 2024. Ms Rawding and Mr Capstick gave sworn evidence via MS Teams.

5. Mr Capstick applied to have the hearing adjourned. He indicated that he wished to be represented by his lawyers on another day. I noted the chronology of events (including Mr Capstick’s receipt of the hearing papers on 6 December 2023); the absence of any adjournment application prior to the start of the hearing; my preparation for the hearing; and my, Ms Rawding’s and Mr Capstick’s attendance at the hearing. I invited Mr Capstick to make further submissions as to why the hearing should be adjourned in light of that chronology. He effectively withdrew his application for an adjournment. As an aside, if he had not withdrawn his application, I would have refused it. Mr Capstick’s lawyers emailed an application for an adjournment fifteen minutes after the hearing had started. That application, based on Mr Capstick’s earlier instructions, was refused.

6. The relevant facts are not in dispute. Mr Capstick was recorded as providing 20% care on the basis that he was providing two nights of care per fortnight during school terms and one week of care during school holidays. The Easter 2022 school holidays started on 11 April 2022. Mr Capstick did not provide care during that school holiday, or subsequent school holidays. After the April 2022 school holidays, he did not provide two nights of care per fortnight; he provided less than two nights of care per fortnight.

7. Mr Capstick sought to explain why he had provided less care. However, he confirmed that there had not been any formal care arrangements in force (such as a court order or written parenting plan). As I explained during the hearing, care decisions usually reflect the parents’ actual pattern of care, regardless of the reasons why they were providing that pattern of care: sections 49 and 50 of the Act. An exception can apply if there was a formal care arrangement in force: section 51 of the Act. That exception cannot apply in this case, which is why it was not necessary to hear from Mr Capstick concerning his reasons for providing less care.

8. As I explained during the hearing, if a person’s pattern of care equates to less than 14% care, their actual percentage of care below 14% does not affect the rate of child support payable. (Their “cost percentage” for the child is nil: section 55C of the Act. Similarly, if a parent provides more than 86% care for a child, their cost percentage for the child is 100%.) I explained that if a parent averages two nights of care per fortnight, it equates to 14% care. Mr Capstick confirmed that he provided an average of less than two nights of care per fortnight from 11 April 2022. I suggested that it might be appropriate to record him as providing 12% care from 11 April 2022, since the actual percentage below 14% care would not affect the rate of child support payable. Both parents were agreeable to that suggestion.

DECISION

The decision under review is set aside and, in substitution, Mr Capstick is recorded as providing 12% care for [Child 1] and [Child 2] with effect from 11 April 2022 and Ms Rawding is recorded as providing 88% care for [Child 1] and [Child 2] with effect from 14 April 2023.