Standen and Amstead (Child support)

[2018] AATA 1220

Standen and Amstead (Child support) [2018] AATA 1220 (9 March 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2017/MC013115

APPLICANT:  Mr Standen

OTHER PARTIES:  Child Support Registrar

Ms Amstead

TRIBUNAL:Member J Longo

DECISION DATE:  09 March 2018

DECISION:

The tribunal sets aside the decision under review and, in substitution, decides:

a)that commencing 31 January 2017, Mr Standen had 42% and Ms Amstead 58% of [Child 1]’s care; and

b)not to make a determination under subsection 95N(2) of the Child Support (Registration and Collection) Act 1988 with the consequence that the date of effect of the Tribunal’s decision is 15 December 2017 (when Mr Standen lodged his application for review).

CATCHWORDS

Child support - Percentages of care - Likely pattern of care - Decision under review set aside and substituted - Late lodgement of the application for review - Special circumstances did not prevent the late lodgement - Date of effect of the Tribunal’s decision is the date application for review was lodged

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 Standen and Ms Amstead are the parents of [Child 1]. Mr Standen is the parent liable to pay child support.

2. From 3 May 2016 the Department of Human Services – Child Support (the Department) determined that Ms Amstead had a percentage of care for [Child 1] of 93% and that Mr Standen had a percentage of care of 7% for [Child 1]. 

3. On 31 January 2017 Mr Standen contacted the Department and advised that his care percentage had changed to six nights per fortnight from 22 July 2016.

4. On 16 February 2017 the Department determined that Mr Standen had 42% (156 nights) care of [Child 1] and that Ms Amstead had 58% (209 nights) care of [Child 1] from 31 January 2017.

5. On 23 February 2017 Ms Amstead lodged an objection to the decision of the Department.

6. On 21 April 2017, an objections officer allowed Ms Amstead’s objection and determined that Ms Amstead had a percentage of care for [Child 1] of 93% and that Mr Standen had a percentage of care of 7% for [Child 1].

7. On 15 December 2017 Mr Standen lodged an application to this tribunal for an independent review of the decision. The hearing took place on 9 March 2018. Mr Standen and Ms Amstead participated in the hearing in person and gave sworn evidence. In making its decision the tribunal took into consideration the documents (numbered 1 to 76) provided by the Department which were also sent to Mr Standen and Ms Amstead.

CONSIDERATION

1. The law that applies in this case is the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration Act).

Has there been a change in the care of [Child 2] and [Child 3]?

1. It is uncontroversial that the care of [Child 1] changed from the care percentages previously determined by the Department. Mr Standen was assessed from 31 January 2017 as having a care percentage for [Child 1] of 42% (156 nights) and Ms Amstead had a percentage of care of 58% (209 nights). The tribunal is satisfied that Mr Standen contacted the Department on 31 January 2017 to advise of a care change that commenced from 22 July 2016.

10.Mr Standen stated to the tribunal that he contacted the Department about the care change because the care used by the Department was incorrect. He stated that he discussed the care percentage with Ms Amstead and that it was agreed that he had six nights per fortnight care of [Child 1]. Mr Standen stated that he would collect [Child 1] from school from Wednesday to Sunday on one week and then have her in his care from Wednesday to Friday afternoon in the alternate week. He updated child support in January 2017 even though the change started in July 2016. He stated that he was only interested in having the change recognised from January 2017 and not before this date.

11.Mr Standen confirmed that he did not keep records of the care, except on the occasion he had extra care. Mr Standen confirmed that there was no written agreement for the care, only their oral agreement. He stated that his mother would come down from [a particular town] every Wednesday and would look after [Child 1] while he was at work and then he would be there after work.

12.Ms Amstead confirmed that there was no written agreement in place in regard to the care of [Child 1] and that Mr Standen would have care and she never prevented him from having care of [Child 1]. Ms Amstead confirmed that she had initially stated to the Department that she agreed with the care change but later changed her view. Ms Amstead did not dispute, at the hearing, that Mr Standen had [Child 1] six nights per fortnight. She stated that there was some inconsistency in Mr Standen’s care of [Child 1] because of his work during the period and so therefore she had stated to the Department that she no longer agreed with the care change.

Should the existing care determinations in relation to [Child 2] and [Child 3] be revoked?

13.Subsection 54F(1) of the Act sets out certain circumstances in which a determination of a percentage of care must be revoked. Specifically, it states that an existing determination must be revoked if the Registrar is notified that the care taking place does not correspond with the responsible person’s existing care of the child.

14.In this case, the tribunal has determined that a care determination was made under section 50 of the Act from 3 May 2016 that Mr Standen had a percentage of care of [Child 1] of 7% and that Ms Amstead had a percentage of care of [Child 1] of 93% from the same date. Therefore, paragraph 54F(1)(a) of the Act is satisfied. Section 50 of the Act provides that if the tribunal revokes a determination and is satisfied that a party has had, or is likely to have, a pattern of care of [Child 1], the tribunal must determine the care during the care period. “Actual care” may be worked out based on the number of nights the child was or will be in the care of the person (subsection 54A(1)).

15.The tribunal is required to consider the actual care of [Child 1] during the care period. The care period is such a period as the Child Support Registrar considers to be appropriate having regard to all the circumstances (section 50 of the Act). The Department’s policy in this regard, as set out in Chapter 2.2.1 of the Child Support Guide, is that a care period is generally a 12-month period from the day on which the actual care for a child changed. This policy is not binding on the tribunal but the tribunal has determined that it is appropriate to consider the policy in the circumstances of this matter. The tribunal considers that, in the circumstances of this case, an appropriate care period is the period from 22 July 2016, being the date on which Mr Standen stated that a change to care arrangements had occurred. The tribunal notes that Ms Amstead did not dispute that care had changed from this date. 

16.Mr Standen’s submissions to the tribunal were that [Child 1] was in his care for 156 nights for the 12-month period from 22 July 2016. The tribunal has determined that Mr Standen had 156 nights of care of [Child 1] and Ms Amstead had 209 nights of care from 22 July 2016. This equates to 42% care for Mr Standen and 58% care for Ms Amstead for the 12-month period. As the tribunal has concluded that Mr Standen’s and Ms Amstead’s care percentages were not the same as their determined care percentages and their cost percentages would change if new determinations were to be made, paragraph 54F(1)(d) of the Act is satisfied and as section 54G does not apply (paragraph 54F(1)(e)), the tribunal must revoke the existing determinations of percentages of care from 30 January 2017, the date Mr Standen contacted the Department and make new determinations of care from 31 January 2017.

Date of effect of the tribunal’s decision

17.Section 95N of the Registration Act provides that a review decision will have effect from the date the application for review was made if the application was lodged more than 28 days after the objection decision. However, if there are special circumstances that prevented the person from lodging the application within the 28 days, the tribunal may allow for a longer application period.

18.Mr Standen told the tribunal that the only reason for the delay in requesting a review of the decision was that he was simply unaware that the care had reverted back to the previous decision. He stated that he was sent the letter but he did not note that the care had changed as they were in private collect at the time. It was only when the Department started collecting child support in around November 2017 that he was aware that the care had not changed. The tribunal is therefore not satisfied that there are special circumstances which prevented lodgement and the discretion contained in section 95N should not be exercised in Mr Standen’s favour.

19.Accordingly, the date of effect of the tribunal’s decision in respect of care will be 15 December 2017, the date Mr Standen made his application for review with the tribunal.

DECISION

The tribunal sets aside the decision under review and, in substitution, decides:

a)that commencing 31 January 2017, Mr Standen had 42% and Ms Amstead 58% of [Child 1]’s care; and

b)not to make a determination under subsection 95N(2) of the Child Support (Registration and Collection) Act 1988 with the consequence that the date of effect of the tribunal’s decision is 15 December 2017 (when Mr Standen lodged his application for review).