Rowell and Gowland (Child support)

[2023] AATA 2927

Rowell and Gowland (Child support) [2023] AATA 2927 (22 August 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/BC025923

APPLICANT:  Miss Rowell

OTHER PARTIES:  Child Support Registrar

Mr Gowland

TRIBUNAL:Member P Jensen

DECISION DATE:  22 August 2023

DECISION:

The decision under review is set aside and, in substitution, Miss Rowell is recorded as providing 17% care and Mr Gowland is recorded as providing 83% care for [Child 1] and [Child 2] with effect from 5 December 2022.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determinations revoked and new determinations made – 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. This case concerns Miss Rowell’s and Mr Gowland’s recorded care for [Child 1] and [Child 2]. By way of background, Services Australia – Child Support (Child Support) recorded Miss Rowell as providing 14% care and Mr Gowland as providing 86% care for the children with effect from 11 January 2022. Miss Rowell and Mr Gowland were both living in Sydney.

2. On 12 December 2022, Mr Gowland reported a change in care from 5 December 2022. Child Support subsequently decided to record Miss Rowell as providing 0% care and Mr Gowland as providing 100% care for the children with effect from 5 December 2022. Miss Rowell promptly objected to that decision. An objections officer disallowed her objection. Miss Rowell promptly applied to the Tribunal for further review. I heard the matter on 22 August 2023. Miss Rowell and Mr Gowland gave sworn evidence via MS Teams.

3. Miss Rowell explained that she lost her accommodation in late 2022 and she was living with her family in Sydney on a temporary basis. She had a long discussion with Mr Gowland in November 2022 about her situation. She ultimately decided to move to Queensland. She said she moved to Queensland on 17 December 2022.

4. On 12 December 2022, Mr Gowland informed Child Support that the change in care occurred on 5 December 2022. At the hearing, he could not recall why he had specified that date. Both parents agreed that Miss Rowell made the decision to move to Queensland at some point between November 2022 and 12 December 2022. Doing the best I can in the circumstances, I find that she made that decision on 5 December 2022. That was when the parents’ pattern of care changed.

5. At the hearing, Miss Rowell said the parents had agreed in December 2022 that she would provide care during all of the school holidays. Mr Gowland said he had not agreed to Miss Rowell providing care during all of the Christmas school holidays; he had agreed to her providing care during half of those holidays (and all of the other school holidays). Miss Rowell acknowledged that Mr Gowland’s position had been likely to prevail. The parents agreed that Miss Rowell had actually provided care during the nights of 11 to 27 January 2022 inclusive. They agreed that there are six weeks of Christmas school holidays and two weeks of holidays in autumn, winter and spring, and Miss Rowell’s general pattern of care would equate to (21 + 14 + 14 + 14) / 365 = 17.2%.

6. Care decisions are made pursuant to the Child Support (Assessment) Act 1989 (the Act). Percentages less than 50% are rounded down to the nearest whole percentage: section 54D of the Act. Changing Miss Rowell’s recorded care from 14% to 17% and Mr Gowland’s recorded care from 86% to 83% will not change the parents’ respective cost percentages: section 55C of the Act. It will not affect the rate of child support payable vis-à-vis the earlier administrative assessment. However, section 54H grants a discretion to change the parents’ percentages of care even though it will not affect the parents’ cost percentages and it is appropriate to exercise that discretion to reflect the fact that Miss Rowell was providing fortnightly care and she is now providing holiday care.

DECISION

The decision under review is set aside and, in substitution, Miss Rowell is recorded as providing 17% care and Mr Gowland is recorded as providing 83% care for [Child 1] and [Child 2] with effect from 5 December 2022.