Ultan and Elwes (Child support)

[2021] AATA 4244

Ultan and Elwes (Child support) [2021] AATA 4244 (13 October 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/MC022085

APPLICANT:  Mr Ultan

OTHER PARTIES:  Child Support Registrar

Mrs Elwes

TRIBUNAL:Member J Prentice

DECISION DATE:  13 October 2021

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no care change – later care change subject of new decision – decision under review affirmed

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 Ultan and Mrs Elwes are the parents of [the child], born 8 December 2016, who was recorded by the Child Support Agency (CSA) as being in 0% care of Mr Ultan and 100% care of Mrs Elwes.  This review concerns a decision by the CSA about the recorded levels of care for [the child].

2. The CSA assessed that from 14 August 2020, Mrs Elwes had 79% care of [the child] and Mr Ultan had 21%.

3. On 18 May 2021 the CSA made the decision to reflect that Mrs Elwes had 100% care and Mr Ultan had 0% care of [the child] from 8 January 2021.

4. On 24 May 2021, Mr Ultan objected to this decision on the grounds that he has a minimum of two nights per week and sometimes four nights per week care of [the child].

5. On 3 August 2021 the CSA disallowed Mr Ultan’s objection to the care decision made on 18 May 2021 which reflected the care of [the child] from 8 January 2021.

6. On 12 August 2021 Mr Ultan sought further review by the Administrative Appeals Tribunal (the Tribunal).

7. At the Hearing on 29 September 2021 the Tribunal heard sworn evidence from Mr Ultan and Mrs Elwes who participated by conference telephone. In reaching a decision, the Tribunal has considered that evidence, together with the statements and documents provided by the CSA under subsection 37(1) of the Administrative Appeals Tribunal Act 1975.

CONSIDERATION

1. Care decisions are made pursuant to the Child Support (Assessment) Act 1989 (“the Act”). Put simply, a new care decision can be made if there has been a relevant change in the parents’ pattern of care: see Division 4 of Part 5 of the Act. Not every deviation from an existing pattern of care constitutes a new pattern of care; it is a question of degree in the particular circumstances of the case. Departmental policy has been developed to assist decision-makers when deciding whether there has been a change in the pattern of care. The Tribunal is not bound by departmental policy but will apply it unless there is a reason to do otherwise.[1] The relevant policy appears at 2.2.2 of the Child Support Guide, which includes the following:

   What constitutes a change to the pattern of care will depend upon the individual circumstances of the case. For example, when considering a change that would result in a parent's care falling below 14%, after a pattern of at least 14% had been previously established, the Registrar will consider that the pattern of care has changed when:

   ·the parent misses 3 care events in a row,

   ·the parent misses 5 events of care out of 8, or

   ·the parent misses 20% of the care over 12 months (when calculating 20% the Registrar will not include an isolated event that is clearly not a change in the pattern).

   …

   [1] Re Drake and Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 and Re Drake and Minister for Immigration and Ethnic Affairs(No 2) [1979] AATA 179.

2. When determining the date of effect of a care change, the Registrar must first determine if a parent or non-parent carer’s care has increased or decreased (paragraphs 54F(3)(b) and 54H(3)(b)).  The Registrar will determine if a parent or non-parent carer’s care has increased or decreased by comparing it to the care used in the child support assessment, for that parent or non-parent carer, on the day the care changed.  The date of the care change will be the point of comparison even if a later care change is used in the assessment prior to the Registrar being notified of the care change currently being applied.

3. Mr Ultan told the Tribunal that he objects to Mrs Elwes being credited with 100% care of [the child].  Mr Ultan informed the Tribunal that from May 2021 [the child] has been spending three nights a fortnight with him.  Mrs Elwes did not dispute this.

4. However, today’s hearing is with respect to the pattern, or likely pattern, of care for [the child] as of 8 January 2021.  This is a “point in time” assessment.  There appears no dispute that Mrs Elwes had 100% care of [the child] from 8 January 2021.

5. The Tribunal notes that subsequent changes to the care arrangement is the subject of a fresh notification, and a fresh decision by the CSA.  As at 3 August this was at a status of pending.

6. As a result, [the child]’s care is to be recorded in accordance with the actual care being provided by the parents at 8 January 2021. As this is the same conclusion as the objections officer, the decision under review will be affirmed.

DECISION

The decision under review is affirmed.