Sacker and Hatherall (Child support)

[2019] AATA 1194

Sacker and Hatherall (Child support) [2019] AATA 1194 (11 April 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/SC015271

APPLICANT:  Ms Sacker

OTHER PARTIES:  Child Support Registrar

Mr Hatherall

TRIBUNAL:Member F Hewson

DECISION DATE:  11 April 2019

DECISION:

The decision under review is affirmed.

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 affirmed

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

BACKGROUND

1. Ms Sacker and Mr Hatherall are the parents of a child, aged four, in respect of whom there is a child support assessment.  This review is about the percentages of care for the child used in the child support assessment.

2. The Department of Human Services – Child Support (the Department) recorded that from 23 October 2015 Ms Sacker had a percentage of care of the child of 100% and Mr Hatherall had a percentage of care of 0% (the existing care).

3. Following notification by Mr Hatherall on 3 July 2018 of a change in the care, the Department made a decision on 9 August 2018 to make new percentage of care determinations on the basis that Ms Sacker had a percentage of care of the child of 86% and Mr Hatherall had a percentage of care of 14% from 25 June 2018.

4. On 21 August 2018, Ms Sacker lodged an objection to the care decision and on 19 October 2018 an objections officer decided to disallow the objection.

5. On 20 October 2018, Ms Sacker lodged an application for review by this tribunal. The application was heard on 11 April 2019. Ms Sacker spoke to the tribunal by conference telephone. Mr Hatherall also spoke to the tribunal by conference telephone. The Child Support Registrar did not attend the hearing. As well as the evidence of Ms Sacker and Mr Hatherall, the tribunal had regard to the documents provided by the Department (numbered 1–281), a copy of which was sent to the parties.

ISSUES

1. The relevant law in this case is in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988. A parent or non-parent carer’s percentage of care for a child is determined based on the care he or she is likely to provide for the child in a care period. The percentage of care is used in a child support assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they are providing for the child.

2. The issues for the tribunal to determine in this case are:

   ·     Whether there should be a change to the percentages of care in respect of the child used in the child support assessment for the relevant period; and, if so,

   ·     What percentages of care should be used? And

   ·     What is the date of effect of the change?

CONSIDERATION

1. In this case, the existing care determinations, from 23 October 2015, reflected that Ms Sacker had a percentage of care of the child of 100%. The documents provided by the Department, however, include a copy of Court Orders made by consent on 12 April 2018, which show that from 25 June 2018 Mr Hatherall was to have overnight care of the child on a Monday night, as well as day time care on a Saturday. That is not disputed. It was Ms Sacker’s contention, however, that Mr Hatherall had forfeited a night of care on 20 August 2018, as shown in the Court Orders, and no make-up care had been requested or confirmed. Ms Sacker argued, therefore, that Mr Hatherall was only to have care on 51 nights, which is less than the percentage of care of 14% assessed. She also argued that on the basis of past experience, Mr Hatherall was likely to miss some of the care in the Court Orders. Mr Hatherall disputed that assertion. He agreed that he was not to have care of the child on the night of 20 August 2018, due to a prior commitment, but argued that as the totality of his care of the child was greater than 14%, it would be unfair to assess him as having a lesser amount.

2. The tribunal referred Ms Sacker to the dates of Mr Hatherall’s care of the child, set out in the decision statement of the objections officer, which amounts to 52 nights. Ms Sacker said she had not identified which date or dates were incorrect, but said it could not amount to 52 Monday nights if the night of 20 August 2018 was not included. The tribunal noted that it had calculated that in the period from 25 June 2018 to 24 June 2019, which begins and ends on a Monday, there are 53 Monday nights (although there are only 52 weeks in a year (364 days) there is always an additional day (two on a leap year)).   

3. The provisions applying in relation to the revocation of a determination of a person’s percentage of care are in Subdivision C of Division 4 – Percentage of Care, of Part 5 of the Act. Section 54F is relevant in this case. It sets out when the Registrar must revoke the existing care determinations, including if the new care percentage determination would change the cost percentage and certain other conditions in subsection 54F(1) of the Act are met.  

4. In this case, the tribunal found that there were existing percentage of care determinations made under section 49 and 50 in relation to the child, and that the Registrar was notified that the actual care of the child did not correspond with the percentage of care in the existing care determinations.

5. The tribunal was satisfied that, in accordance with the Court Orders of 12 April 2018, Mr Hatherall was to have care of the child on each Monday night in the period from 25 June 2018 to 24 June 2019 (the care period). This amounts to 52 nights of care in the care period, which is equivalent to a percentage of care of 14%. The tribunal notes that the clear pattern of the care in this case, despite the forfeiture of care on the night of 20 August 2018, is for Mr Hatherall to have care on one night a week. If, as Ms Sacker believed, the care amounted to only 51 nights (14% using usual rounding rules but only 13% using the specific rounding rules in the Act), the tribunal was of the view that it would be appropriate to assess Mr Hatherall on the basis of the overall pattern (i.e. of care on one night a week), particularly as Mr Hatherall also has weekly daytime care of eight hours on a Saturday. According to the objections officer, Mr Hatherall’s percentage of care, having regard to hours of care, is 15%. In the particular circumstances of the case, the tribunal was satisfied that the pattern of the care in the care period from 25 June 2018 to 24 June 2019 was for Mr Hatherall to have a percentage of care of the child of 14% and Ms Sacker to have a percentage of care of 86%.

6. The tribunal decided that it is appropriate in the circumstances of this case to revoke the existing determinations of the percentages of care for the child under section 54F of the Act, as the new percentage of care determinations would change the cost percentage and the other requirements of subsection 54F(1) are met. Subsection 54F(3) of the Act sets out when the revocation of the determination takes effect, in this case on 24 June 2018, being the end of the day before the day on which the previously established pattern of care ceased.

7. As the existing determinations have been revoked, new determinations of Ms Sacker and Mr Hatherall’s percentage of care, under section 50 of the Act, must be made. To make new determinations, the actual care of the children that was likely to occur during the care period (in this case from 25 June 2018 to 24 June 2018) must be considered. As discussed above, the tribunal determined that Ms Sacker’s percentage of care of the child was likely to be 86% and Mr Hatherall’s percentage of care was likely to be 14%. The date of effect of the tribunal’s decision is 25 June 2018.

DECISION

The decision under review is affirmed.