Summers and Beal (Child support)

[2018] AATA 542

Summers and Beal (Child support) [2018] AATA 542 (13 February 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2017/PC012848

APPLICANT:  MrSummers

OTHER PARTIES:  Child Support Registrar

Ms Beal

TRIBUNAL:Member W Budiselik

DECISION DATE:  13 February 2018

DECISION:

The decision under review is affirmed.

CATCHWORDS
Child Support – Percentage of care – Determination of the likely pattern of care – Care period – 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. Mr Summers (the father) and Ms Beal(the mother) are the parents of [Child 1] (born 2008) (the child). From 25 February 2016, the Department of Human Services Child Support (the department) has attributed the father 44% of the child’s care percentage and the mother 56% of the child’s care percentage.

2. On 12 October 2017, an objections officer of the department affirmed a decision made by a departmental officer on 5 July 2017, to not change the child’s care percentages attributed to the father to 47% and to the mother to 53%, from 25 February 2017.

3. On 6 November 2017, the father lodged an application with the Administrative Appeals Tribunal (the tribunal) for a review of the department’s decision. On 13 February 2018, the tribunal conducted a hearing into the application. The parents participated in the hearing via telephone conference. Prior to the hearing the Department provided the tribunal and the parents with a bundle of documents (folios 1 – 295) taken from the parents’ child support records.

ISSUES

1. The statutory provisions relevant to this review are contained in in the Child Support (Assessment) Act 1989 (the Act).

2. The issue which arises in this case is whether there had been a change to the care pattern for the child such that the care percentages used in the child support assessment should be revoked.

CONSIDERATION

Was there a change to the pattern of care for the child such that the care percentages used in the child support assessment should be revoked?

1. The relevant provisions in this case are sections 50, 54F and 55C of the Act which provide that if there is a change to a parent’s percentage of care, and that change would cause a change to the parent’s cost percentage then the care determination that is in place must be revoked and replaced by a percentage of care determination that reflects the actual care that the person will have, or is likely to have in the care period.

2. In this case on 25 February 2016 the Family Law Court of Western Australia (the Court) certified consent orders setting out a care arrangement for the child.

3. The parents’ evidence was that the intention of the Court’s consent orders was that during the school year the child would be in the care of the father for three nights each week and be in the care of the mother for four nights each week. Their intention was that the child’s care would be shared 50/50 between the father and mother for the school holidays.

4. In addition there was a provision at paragraph 5 of the consent orders that subject to compliance with a communication protocol the parents on an alternating annual basis could have the child for an extra seven nights in January (the January option) so the child could have an extended holiday with a parent. Thus far the father has exercised the January option and the mother has not. The mother said the father had agreed she could have an extra seven nights care for the child when a convenient time could be arranged, to make up for the lost care time. Neither parent wanted the tribunal to consider the distortion that would occur if one parent exercised the January option to have the child for an extra seven days in one year and the other parent chose not to exercise the option in the following year.

5. The tribunal calculated a percentage of care in the following way:

   a)   There are 40 school weeks in a year (reference: ). The father therefore cares for the child for 3 x 40 or 120 nights throughout the school year and the mother cares for the child for 4 x 40 nights or 160 nights throughout the school year;

   b)   The 12 weeks of school holidays are divided equally between the parents. That is each parent is attributed 42 school holiday nights;

   c)   Therefore in a year when the January extension is not operationalized the father cares for the children for 162 nights and the mother cares for the child for 202 nights. In percentage terms this equates to 44% (rounded down) and 56% (rounded up) of the child’s care (section 54D of the Act sets out the rounding rule).

6. The father said that when he used the care estimator he arrived at different percentages of care. The mother said she believed the care percentages were correctly reflected over a two year period, but that in shorter periods there were distortions.

7. The tribunal reviewed the Court orders and was satisfied over a two year period the Court orders give effect to the parents’ intention. The tribunal concluded in this case it was appropriate for the child care period to be greater than one year.

8. The tribunal is satisfied there has not been a change to the care pattern since 25 January 2017, such that the care percentages attributed to the parents should be revoked.

DECISION

The decision under review is affirmed.