Tatro and Tatro (Child support)

[2021] AATA 3846

Tatro and Tatro (Child support) [2021] AATA 3846 (24 August 2021)

DIVISION:Social Services & Child support Division

REVIEW NUMBER:  2021/BC021740

APPLICANT:  Mr Tatro

OTHER PARTIES:  Ms Tatro

Child Support Registrar

TRIBUNAL:  Member A Barry   

DECISION DATE:  24 August 2021

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that Mr Tatro had a percentage of care of 88% and Ms Tatro had a percentage of care of 12% for [the child] from 21 September 2020.

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 set aside and substituted

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. Mr Tatro and Ms Tatro are the parents of [the child].

2. On 9 November 2020, Ms Tatro contacted Services Australia – Child Support (Child Support) to report that she had 18% care of [the child] from 21 September 2020. Prior to this notification, the percentage of care of [the child] recorded by Child Support was 100% to Mr Tatro and 0% to Ms Tatro. 

3. On 13 March 2021, Child Support made the decision to accept the percentage of care as 82% to Mr Tatro and 18% to Ms Tatro.

4. On 25 March 2021, Mr Tatro lodged an objection to the decision of 13 March 2021.

5. On 28 May 2021, Child Support partly allowed the objection and made the decision to reflect the percentage of care of [the child] as 86% to Mr Tatro and 14% to Ms Tatro from 21 September 2020.

6. On 15 June 2021, Mr Tatro lodged an application to the Administrative Appeals Tribunal (the Tribunal) for a review of the decision. The Tribunal heard the matter on 24 August 2021. Mr Tatro and Ms Tatro participated in the hearing via Microsoft Teams audio and both gave sworn evidence. In making its decision, the Tribunal took into consideration the documents provided by Child Support (150 pages) which were provided to the parties prior to the hearing.

CONSIDERATION

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

What is the care of [the child]?

1. The oral and documentary evidence shows there was no court order or parenting plan in place over the relevant period.

2. In his oral testimony, Mr Tatro told the Tribunal that for the 2020 calendar year, he calculates that [the child] stayed with Ms Tatro for 11 nights at her home on the Sunshine Coast. Mr Tatro further calculates that [the child] has stayed with Ms Tatro for 16 days to date in 2021. Mr Tatro told the Tribunal that on 21 September 2020, [the child] travelled to the Sunshine Coast to stay with Ms Tatro for six nights.

3. In his testimony, Mr Tatro told the Tribunal that over the relevant period, [the child] spent part of most of the school holidays with Ms Tatro. In her testimony, Ms Tatro said that over the September 2020 school holidays [the child] spent six nights with her and over the Christmas school holiday period [the child] was in her care from 14 December 2020 to 18 December 2020 and then for another period from 18 January 2021 to 24 January 2021. Over the Easter school holiday period, Ms Tatro told the Tribunal that [the child] spent seven nights in her care.

4. Mr Tatro told the Tribunal that since 21 September 2020, [the child] has travelled to the Sunshine Coast for a weekend with Ms Tatro on three to four occasions. Mr Tatro acknowledged that in addition to those weekends there had been some weekends where [the child] had stayed with his maternal grandmother in [City]. Ms Tatro told the Tribunal that on these occasions she had travelled from the Sunshine Coast to spend the weekend with [the child] to save him travelling by train for approximately 12 hours return. In her testimony, Ms Tatro said that she does not recall having a weekend with [the child] in May 2021 or March 2021 in addition to the month of September 2020 where he spent several nights with her in the late part of the month of his school holiday, but otherwise she believes he has spent one weekend a month with her.  

12.During the relevant period, Mr Tatro said that he consults with [the child’s] school regarding his tuition and related matters. Mr Tatro told the Tribunal that he has removed Ms Tatro as a contact point from the school records. Ms Tatro told the Tribunal that she was unaware she was no longer one of the contact points.

13.Mr Tatro told the Tribunal that [the child’s] main extra-curricular activities include [activity], which he does most weekends. Mr Tatro also said that he spends most weekends driving [the child] to visit school friends and his girlfriend in [Town], approximately a one hour round trip.  

14.According to their testimonies, both Mr Tatro and Ms Tatro have been separately involved with [the child’s] health care needs and where needed, have each made relevant appointments as required.

15.Section 50 of the Act requires a determination of a percentage of care to be made where the Tribunal is satisfied either that the person has had, or is likely to have, a pattern of care during a care period as considered to be appropriate having regard to all the circumstances. It is apparent from the information above that the care percentage for [the child] from 21 September 2020 that Mr Tatro and Ms Tatro had was not the pattern of care as previously determined by Child Support from 19 November 2019.

Should the existing care determinations in relation to [the child] be revoked?

16.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 or children.

17.Care is usually determined on the basis of the overnight arrangements in place. The Tribunal is satisfied, based on the evidence provided to Child Support and to the Tribunal, that [the child] is predominately in the care of Mr Tatro and that Ms Tatro has care of [the child] for some period over school holidays and on one weekend a month for most months.

18.The Tribunal has also taken into account other evidence provided after the hearing from Mr Tatro – mobile phone accounts of [the child] that shows when he was at the Sunshine Coast. The Tribunal considered these records but also notes that it does not account for those occasions when Ms Tatro travelled to [City] and she and [the child] stayed at his maternal grandmother’s house.

19.Accordingly, the Tribunal has decided that the care determination should reflect that from 21 September 2020, Mr Tatro had 88% care and Ms Tatro had 12% care of [the child]. This reflects that [the child] has spent some overnight care under Ms Tatro’s roof or with Ms Tatro at his maternal grandmother’s house. It also reflects Mr Tatro’s care of [the child] for major decisions including health, education, discipline and social activities. 

20.Accordingly, the determination of care made on 19 November 2019 is revoked from 20 September 2020 and a new determination made from 21 September 2020, which reflects that Mr Tatro had a percentage of care of 88% and Ms Tatro had a percentage of care of 12% for [the child] from this date. This sets aside the objection decision and changes the care determination from 21 September 2020.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that Mr Tatro had a percentage of care of 88% and Ms Tatro had a percentage of care of 12% for [the child] from 21 September 2020.