Stenhouse and Child Support Registrar (Child support)

[2018] AATA 536

Stenhouse and Child Support Registrar (Child support) [2018] AATA 536 (19 January 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2017/MC012204

APPLICANT:  Ms Stenhouse

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member P Glass

DECISION DATE:  19 January 2018

DECISION:

The decision under review is affirmed.

CATCHWORDS
Child Support – Percentage of care – Determination of the likely pattern of care – Care equally shared - Decision under review affirmed

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. Ms Stenhouse and [Mr A ]are the parents of a child. [Mr A] is the parent liable to pay child support.

2. On 24 April 2017, [Mr A] notified the Department of Human Services – Child Support (the Department) of a change in the child’s care percentages. He advised that his care percentage was 49% and Ms Stenhouse’s was 51% from 1 July 2010.

3. On 24 April 2017, the Department determined Ms Stenhouse’s percentage of care was 51% and [Mr A’s] was 49% from 1 July 2010, with effect from 24 April 2017.

4. On 3 May 2017, Ms Stenhouse’s objected to the Department’s decision. On 30 June 2017, an objections officer at the Department found the parents’ care percentages for the child were 50% each from 1 July 2010, with effect from 24 April 2017.

5. On 26 July 2017, Ms Stenhouse’s applied to the Administrative Appeals Tribunal (the Tribunal) for an independent review of the objections officer’s decision. That application was heard on 19 January 2018. Ms Stenhouse’s appeared before the Tribunal and gave evidence on affirmation. Neither [Mr A] nor the Department participated in the hearing.

6. The Tribunal received into evidence:

   ·documents marked 1 to 108 produced by the Department pursuant to subsection 37(1) of the Administrative Appeals Tribunal Act 1975 (Exhibit 1); and

   ·a medical certificate dated 18 January 2018 provided by Ms Stenhouse at the hearing (Exhibit 2).

7. The issues to be determined are the parents’ percentages of care for the child.

CONSIDERATION

1. At the time of [Mr A’s] notification of a change in care on 24 April 2017, his percentage of care was assessed by the Department to be 0% and Ms Stenhouse’s to be 100%.

2. Pursuant to section 50 of the Child Support (Assessment) Act 1989 (the Act), percentages of care are to correspond with the actual care of the child each parent has had, or is likely to have, during a care period. Paragraph 50(1)(b) requires two things before a new care determination can be made:

   ·the revocation of an existing care determination under Subdivision C of Division 4 of Part 5 of the Act; and

   ·satisfaction of an actual or likely pattern of care during such care period as is determined to be appropriate in all the circumstances.

3. Pursuant to section 54F of the Act, an existing percentage of care determination must be revoked if it does not correspond with the actual care taking place and the parents’ cost percentages would change if they reflect the current care percentage. Alternatively, pursuant to section 54H of the Act, an existing percentage of care determination may be revoked if it does not correspond with the actual care taking place.

4. Pursuant to section 54A of the Act, the parents’ actual care of the child may be worked out based on the number of nights he was, or was likely to be, in their care during a care period. In Polec & Staker (SSAT Appeal) [2011] FMCAfam 959, Federal Magistrate Hughes (as her Honour then was) stated at paragraph 56:

   In my view, in determining whether and to what extent a person has care of a child for the purpose of the Child Support (Assessment) Act 1989 and the Child Support (Registration and Collection) Act 1988, it is necessary to consider the following:

   a.To what extent does the person meet the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extracurricular activities?

   b.To what extent does the person make arrangements for others to meet the needs of the child?

   c.To what extent does the person pay for the costs of meeting the needs of the child?

   d.To what extent does the person otherwise provide financial support for the child?

   e.To what extent does the child provide for his or her own needs or have those needs met from another source?

   f.To what extent is the child financially independent or financially supported from another source?

1. Ms Stenhouse gave evidence that she and [Mr A] have lived under the same roof since approximately 2007. Nevertheless, she claimed to provide more care for the child than [Mr A]. When asked by the Tribunal what percentage of care she asserted she had, she estimated it to be 75%.

2. With respect to the child’s supervision arrangements, Ms Stenhouse gave evidence that she attends to the child’s school drop offs and pick-ups and looks after him after school until approximately 6:00pm when [Mr A] returns home from work. She gave evidence of being responsible for the child’s care during school holidays. Her evidence was that when [Mr A] is not working, they share in the child’s care. She estimated [Mr A] has been working for the last four or five years.

3. Ms Stenhouse gave evidence that she is responsible for arranging the child’s attendance at appointments with his doctor and [specialist]. She buys clothes and food for the child and pays the rent. [Mr A] pays the household utilities. She advised the Department on 3 May 2017 that [Mr A] takes the child to [martial arts] on Saturdays and meets its cost.[1]

   [1] Exhibit 1, page 82.

4. Ms Stenhouse uncontradicted evidence is that the child’s care is shared between his parents outside of work hours, that the child’s household expenses are shared between his parents and the cost of his needs and activities is also shared. Although Ms Stenhouse places emphasis on the additional hours she is responsible for the child’s care before and after school, attendance at doctors’ appointments and food and clothing costs, I am not satisfied that those arrangements suggest that the child’s overall care is anything other than shared equally between his parents.

5. A change from 100% to 50% care changes the parents’ costs percentages.[2] Pursuant to section 54F of the Act, the existing percentage of care must be revoked. The change in care occurred more than 28 days prior to the date of [Mr A’s] notification to the Department on 24 April 2017. Pursuant to subsection 54F(2), the revocation will take effect on the day prior to that notification, namely 23 April 2017. I find the parents’ percentages of care for the child to be 50% each with effect from 24 April 2017.

   [2] Child Support (Assessment) Act 1989 section 55C.

6. Since 1 July 2010, determinations of care under the Act have applied for other social security purposes.[3] Although the evidence supports a finding that the change in care occurred prior to the date, I find the date of the change should be recorded on 1 July 2010 so that care records can be aligned.

   [3] For example, A New Tax System (Family Assistance) Act 1999 sections 35T and 35U.

DECISION

The decision under review is affirmed.