Watson and Barker (Child support)

[2018] AATA 3986

Watson and Barker (Child support) [2018] AATA 3986 (4 September 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/BC014368

APPLICANT:  Mr Watson

OTHER PARTIES:  Miss Barker

Child Support Registrar

TRIBUNAL:Member P Jensen

DECISION DATE:  4 September 2018

DECISION:

The decision under review is affirmed.

CATCHWORDS
Child support - Percentage of care - Days in the child support period to which the new determination of percentages of care apply - Start date correctly determined - 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

1. Mr Watson and Miss Barker are the parents of [Child 1]. On 11 August 2017, Miss Barker applied to the Department of Human Services – Child Support (“the CSA”) to register a child support case. On 12 September 2017 the CSA decided to grant her application, with effect from 11 August 2017. It also decided to record Mr Watson as providing 0% care and Miss Barker as providing 100% care to [Child 1] from 11 August 2017. For convenience, I will predominantly refer to Mr Watson’s care.

2. On 28 September 2017, Mr Watson queried the CSA’s decision to record him as providing 0% care from 11 August 2017. The CSA’s contemporaneous file note of the conversation includes the following:

   *Mr Watson has provided the following grounds for his objection:
   I get her for one night per week when I am home.

   I have 28 days on and 28 days off as a fly in fly out worker, sometimes it ends up being two nights.

   *Mr Watson agrees that the above record is a true representation of the grounds he is relying on for his objection

   An administrative remedy is not applicable
   Mr Watson does not intend to object for the following reasons:

   explained no change to current cost percentage, Mr Watson not proceeding with the obj., asked about what happens if he regains care as per order, adv to call within 28 days of changes to care arrangements.

3. The CSA’s decision to record Mr Watson as providing 0% care from 11 August 2017 is not under review in the current proceedings. In fact, the Tribunal currently does not have jurisdiction to review that decision because it has not been reviewed by an objections officer: sections 80A and 89 of the Child Support (Registration and Collection) Act 1988 (“the Registration Act”).

4. On 17 January 2018, Mr Watson informed the CSA that he had calculated that he was providing 55 nights of care per year. 55 / 365 = 15.1%. Percentages less than 50% are rounded down to the nearest whole percentage: section 54D of the Child Support (Assessment) Act 1989 (“the Assessment Act”). On 27 February 2018 the CSA made a new care decision. It appears that the CSA intended to record Mr Watson as providing 15% care, with effect from 17 January 2018, but it mistakenly recorded him as providing 15% care, with effect from 11 August 2017. Miss Barker objected to that decision. On 4 May 2018 an objections officer allowed her objection and recorded Mr Watson as providing 15% care, with effect from 17 January 2018. On the same day it wrote to both parents and informed them of its decision, and that they could seek further review of the decision by the Tribunal, in which case they should lodge their application for review within 28 days of being notified of the decision. Six and a half weeks later, on 19 June 2018, Mr Watson applied for further review by the Tribunal. I heard the matter on 4 September 2018. I spoke to Mr Watson and Miss Barker by conference phone.

5. If the CSA is informed of a change in care, it must determine the pattern of care that each parent “has had, or is likely to have,” during such period as the decision-maker considers appropriate: see, in particular, sections 50 and 54F of the Assessment Act. I questioned both parents about the pattern of care they had been providing, and had been likely to continue to provide, as at January 2018. Mr Watson confirmed that he worked as a fly-in-fly-out worker. He said he generally alternated between working in [Country 1] for 28 days and returning to Australia for 28 days. He said he generally provided two nights of care per week when he was in Australia, but he provided three nights of care if his weekend care was followed by a public holiday, and he provided care for half of each school holiday if he was in Australia at the time. Miss Barker agreed that Mr Watson generally provided two nights of care per week while he was in Australia. She said he sometimes provided three nights of care if his weekend care was followed by a public holiday, although that occurred infrequently, and he provided additional care during school holidays, but it was less than half the school holidays. She also said he missed six nights of overnight care in or around May 2018 when he went on a three-week overseas holiday.

6. If Mr Watson were only providing two nights of care per week for four weeks out of every eight weeks, his care would equate to (2 x 4) / (8 x 7) = 14.3%. Both parents agreed that he provided more than that level of care, although they disagreed on the details. During the hearing I explained that if Mr Watson were recorded as providing at least 14% care and less than 35% care, the actual percentage of care would not affect the rate of child support payable: see, in particular, sections 35A and 55C of the Assessment Act. After some discussion concerning the available evidence, both parents agreed that, as at January 2018, Mr Watson had been providing, and had been likely to continue to provide, 15% care, and I find accordingly.

7. The effect of Mr Watson’s evidence was that when he contacted the CSA on 17 January 2018, he had been providing 15% care for more than 28 days. I accept his evidence on that point and, for the reasons that follow, it is not necessary to make a specific finding of fact as to when he started providing 15% care.

8. The Assessment Act relevantly provides that if the CSA is notified of a change in care more than 28 days of it occurred, the new care decision has effect from the date of notification: sections 50 and 54F of the Act. During the hearing I noted that, according to the CSA’s records, Mr Watson first notified the CSA on 17 January 2018 that he was providing 15% care. Mr Watson disagreed. He said he notified the CSA of his 15% care “right from the start”. He was unable to specify a particular date. I gather that he was referring to his dealings with the CSA up until 28 September 2017 when he decided not to object to the earlier care decision to record him as providing 0% care. As noted earlier, I am not reviewing that earlier care decision. As an aside, if Mr Watson were to argue that when he contacted the CSA on 17 January 2018 he was belatedly objecting to that earlier care decision, then the date of effect of any objections officer’s decision to vary that earlier care decision would be governed by section 87AA of the Registration Act. However, the better view is that when Mr Watson contacted the CSA on 17 January 2018 he was belatedly advising of a change in care, and for the reasons stated above, the new percentage of care has effect from the date of notification, i.e. 17 January 2018. For those reasons, the objections officer’s decision to record Mr Watson as providing 15% care, with effect from 17 January 2018, will be affirmed. I therefore do not need to investigate Mr Watson’s apparent delay in applying to the Tribunal for review of the objections officer’s decision. That issue would have only become relevant if I were changing the objections officer’s decision: section 95N of the Registration Act.

DECISION

The decision under review is affirmed.