Rowan and Rowan (Child support)

[2019] AATA 5419

Rowan and Rowan (Child support) [2019] AATA 5419 (31 October 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2019/MC017220    

APPLICANT:  Ms Rowan

OTHER PARTIES:  Child Support Registrar

Mr Rowan

TRIBUNAL:Member J Longo

DECISION DATE:  31 October 2019

DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that Ms Rowan has a percentage of care of 100% for [Child 1], [Child 2] and [Child 3] and Mr Rowan has 0% care for [Child 1], [Child 2] and [Child 3] from 1 January 2019.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely 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 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 Rowan and Ms Rowan are the parents of [Child 1], [Child 2] and [Child 3]. Mr Rowan is the parent liable to pay child support.

2. On 2 January 2017, the Department of Human Services – Child Support (the Department) determined that Ms Rowan had a percentage of care of 100% for [Child 1], [Child 2] and [Child 3] and Mr Rowan had a percentage of care of 0%.

3. On 10 May 2019, Mr Rowan contacted the Department which resulted in a change in the care of [Child 1], [Child 2] and [Child 3]. On 23 May 2019 the Department determined that Mr Rowan determined to have 14% care of the children and Ms Rowan determined to have 86% care of the children from 1 January 2019 with effect from 10 May 2019.

4. Ms Rowan lodged an objection to the above care decision of the Department on 24 May 2019, stating that the care for [Child 1], [Child 2] and [Child 3] had not changed. On 23 July 2019, the Department disallowed the objection.

5. On 22 August 2019, Ms Rowan lodged an application to the Administrative Appeals Tribunal (the tribunal) for a review of the decision. The hearing took place on 31 October 2019. Ms Rowan and Mr Rowan spoke to the tribunal via conference telephone and gave sworn evidence. In making its decision the tribunal took into consideration the documents provided by the Department (110 pages), which were also sent to Ms Rowan and Mr Rowan.

CONSIDERATION

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

What is the care of [Child 1], [Child 2] and [Child 3]?

1. It is not in dispute that the Department had recorded that the care of [Child 1], [Child 2] and [Child 3] was Ms Rowan having 100% and Mr Rowan having 0% of the care from 2 January 2017. Ms Rowan stated that there had never been a change in the care and that while Mr Rowan was happy to have the children three nights a fortnight and for half the school holidays, this never eventuated. The care of the children has not been subject to any court orders or parenting plan but rather as agreed, determined by the children’s activities. Ms Rowan stated that the Department asked her provide evidence of the care and she thought that this was unfair and so she asked Mr Rowan to speak to child support, which he did, but the care was not changed.

2. Mr Rowan confirmed that he had initially contacted the Department on 10 May 2019 to change his address details and had been asked about the care of the children during this conversation. He stated that it was his intention, going forward, that he would like to have the children every fortnight but this is yet to occur. Mr Rowan stated to the tribunal that he had hoped that this would occur, but instead it resulted in a change in the care which was not intended. Mr Rowan confirmed that he does see the children but not with the regularity he had hoped for, due to their respective activities.

3. Section 50 of the Act requires a determination of a percentage of care to be made where the tribunal is satisfied either that the person has had, or is likely to have, a pattern of care during a care period as considered to be appropriate having regard to all the circumstances. According to both Ms Rowan’s and Mr Rowan’s evidence, it is clear that while Mr Rowan intended that his care of [Child 1], [Child 2] and [Child 3] would increase, this did not occur. Accordingly, the tribunal determines that no care change occurred which required the previous determination of care to be revoked and a new care determination to be made for the care of [Child 1], [Child 2] and [Child 3].

4. The tribunal has decided to set aside the decision of the objections officer and determine that the care of [Child 1], [Child 2] and [Child 3] was 100% for Ms Rowan and 0% for Mr Rowan from 1 January 2019.

DECISION

The tribunal sets aside the decision under review and, in substitution, decides that Ms Rowan has a percentage of care of 100% for [Child 1], [Child 2] and [Child 3] and Mr Rowan has 0% care for [Child 1], [Child 2] and [Child 3] from 1 January 2019.