Tatham and Child Support Registrar (Child support)

[2020] AATA 1402

Tatham and Child Support Registrar (Child support) [2020] AATA 1402 (11 March 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/MC018229

APPLICANT:  Mr Tatham

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member F Staden

DECISION DATE:  11 March 2020

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – likely pattern of care from beginning of assessment – 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 Tatham and Ms Tatham are the separated parents of [Child 1], born 2004.

2. On 30 September 2019, Ms Tatham contacted the then Department of Human Services – Child Support (Child Support) in relation to her 22 September 2019 application for a child support assessment. She stated that Mr Tatham had care of [Child 1] on three nights a fortnight, a care percentage of 21%, and that she provided the remainder of care, a care percentage of 79%.

3. On 2 October 2010, Child Support contacted Mr Tatham who advised that he cared for [Child 1] three nights a fortnight but was currently going through court to get a written agreement increasing that care to four nights a fortnight. Mr Tatham was advised to inform Child Support once a changed care arrangement was in place.

4. On 2 October 2019, Child Support accepted Ms Tatham’s application for a child support assessment and attributed Mr Tatham a care percentage of 21% and Ms Tatham a care percentage of 79%.

5. On 1 November 2019, Mr Tatham informed Child Support that he had been providing four nights of care a fortnight for [Child 1] since 17 October 2019. He additionally provided a calendar of the nights he would be providing that care over a 12 month period from 1 November 2019.

6. Also on 1 November 2019, Mr Tatham lodged an objection to the care percentages being used in the assessment. In support of his objection, he provided draft, unsigned consent orders under which he would provide four nights of care for [Child 1] a fortnight commencing on the Thursday after the date on which the orders were made.

7. On 7 November 2019, Ms Tatham informed Child Support that Mr Tatham was providing three nights of care for [Child 1] a fortnight, not four.

8. On 18 December 2019, an objections officer disallowed Mr Tatham’s objection on the basis that the consent orders were undated and unsigned and so the date of commencement was unknown and that there was anyway no evidence that care was occurring in line with the consent orders.

9. On 15 January 2020, Mr Tatham applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal) for review of the objections officer’s decision. 

10. A hearing was conducted on 11 March 2020. Mr Tatham gave sworn evidence by telephone. Ms Tatham did not request to be an added party. The tribunal had before it documents provided by Child Support (49 pages), a copy of which was sent to Mr Tatham before the hearing. Prior to the hearing Mr Tatham provided the tribunal with additional material consisting of court approved consent orders (A1 to A17), a copy of which was given to Child Support.

11. Relevant aspects of the evidence before the tribunal are referred to in the consideration below.

ISSUES

1. The relevant legislation in this case is the Child Support (Assessment) Act 1989 (the Assessment Act). The tribunal also had regard to the Child Support Guide, Child Support’s online technical and policy guide to the administration of the child support scheme.

2. Child Support, acting for the Child Support Registrar, generally makes child support assessments using a statutory formula in Part 5 of the Assessment Act. This formula contains a number of elements called the particulars of the assessment. They include a care percentage and a cost percentage for each parent in relation to each child.

3. Child Support decides each parent’s care percentage in line with sections 49 to 54L of the Assessment Act. These provisions require Child Support to decide each parent’s care percentage when first making a child support assessment and to revoke and remake those decisions in specific circumstances.

4. Sections 49 and 50 of the Assessment Act require Child Support, or here the tribunal, to determine the likely pattern of care for a child during a care period that is considered appropriate, usually 12 months. A care period begins on the day the actual care of a child began or changed and the same care arrangements are assumed to apply for the care period unless Child Support or Department of Human Services - Centrelink are informed otherwise.

5. The issue which arises in this case is what care percentages should be attributed to Mr Tatham and Ms Tatham in relation to [Child 1’s] care from 22 September 2019.

CONSIDERATION

Issue 1: What care percentages should be attributed to Mr Tatham and Ms Tatham in relation to [Child 1’s] care from 22 September 2019?

1. Here the tribunal is concerned with the likely pattern of care for [Child 1] from 22 September 2019, the start date of the assessment. Mr Tatham agreed that his then pattern of care for [Child 1] was three nights a fortnight, a care percentage of 21%. There is therefore no basis on which to change the care percentage determinations in place from the beginning of the assessment. They are correct. Mr Tatham agreed with this finding.

Other

1. The tribunal noted, as did the objections officer, that there is a current pending decision about a change in care arrangements for [Child 1] from 17 October 2019. This pending decision relates to Mr Tatham’s informing Child Support on 17 October 2019 that he had care of [Child 1] for four nights a fortnight from that date. Once Child Support makes a decision about whether to accept Mr Tatham’s 17 October 2019 change of care arrangements notification, it will be open to Mr Tatham to object to that decision if he does not agree with it.

DECISION

The decision under review is affirmed.