Weng and Child Support Registrar (Child support)

[2019] AATA 567

Weng and Child Support Registrar (Child support) [2019] AATA 567 (26 February 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/SC015394

APPLICANT:  Ms Weng

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member J Leonard

DECISION DATE:  26 February 2019

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the care percentages to be used in the child support assessment from 13 August 2018 are 0% for Ms Weng and 100% for Mr Weng.

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 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. This review concerns the care percentages used in a child support assessment.

2. Ms Weng and Mr Weng are the parents of [Child 1].  From 19 April 2018, the assessment of child support was based on a care percentage of 58% for Ms Weng and a care percentage of 42% for Mr Weng in respect of [Child 1].

3. On 14 August 2018, Mr Weng contacted the Department of Human Services (the Department) and advised care of [Child 1] had changed as [Child 1] had left Ms Weng’s care and was living with him since 13 August 2018. 

4. On 29 August 2018, a decision was made to vary the care percentages used in the child support assessment to reflect Mr Weng had a care percentage of 100% and Ms Weng had a care percentage of 0% affecting the assessment from 13 August 2018.

5. Ms Weng objected to the decision on 31 August 2018 and on 2 November 2018 her objection was partly allowed. It was decided that from 13 August 2018 Ms Weng had a care percentage of 28% and Mr Weng had a care percentage of 72%.

6. On 8 November 2018, Ms Weng lodged an application for review with the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal). The application was heard on 26 February 2019. The Tribunal spoke to Ms Weng by telephone conference. The Child Support Registrar was not represented at the hearing and Mr Weng did not apply to be added as a party to the review. In addition to oral evidence, the Tribunal had regard to documents provided by the Department (folios 1 to 185).

ISSUES

1. The issue the Tribunal must decide is whether there was a change to the pattern of care for [Child 1], and if so, the appropriate care percentages to be used in the child support assessment.

CONSIDERATION

1. The Department makes determinations of each parent’s percentage of care (a care percentage decision) in accordance with sections 49 to 54L of the Child Support (Assessment) Act 1989 (the Assessment Act). These provisions require the Department to make determinations of each parent’s percentage of care when first making a child support assessment and if there is a change to the care pattern which means that an earlier determination should be revoked.

2. Sections 49 and 50 require the Registrar, or the Tribunal, to determine the likely pattern of care for a child during a period that is considered appropriate (a care period).

Was there a change to the care pattern for [Child 1]?

1. There are no care orders in respect of [Child 1].

2. Mr Weng advised the Department on 6 September 2018 that [Child 1] requested he pick him up on 13 August 2018. He had not wanted to return to Ms Weng’s care and that there was no set plan as to when [Child 1] would spend time overnight with Ms Weng.

3. Ms Weng stated at hearing that there had been an argument with [Child 1]. She had been under considerable stress following a recent bereavement. [Child 1] decided to go to Mr Weng’s home, but it was not a permanent arrangement and she wanted to have 50/50 care of him. She also wanted to give [Child 1] some ownership of the decisions as to how often he spent time with Mr Weng. In the past, the arrangement with Mr Weng had been flexible and even immediately following 13 August 2018 she anticipated she would have 50% care of [Child 1] over a 12 month period.

4. [Ms A], [Child 1]’s maternal grandmother, stated in a letter dated 10 October 2018 that she was in contact with Mr Weng on 13 August 2018 regarding [Child 1] staying with him, however it was never intended to be a permanent arrangement. She stated Ms Weng needed some time out and counselling following a recent bereavement.

5. The original decision was made on 29 August 2018. At that time, Ms Weng had not had any overnight care of [Child 1] since 13 August 2018.  Ms Weng supplied copies of text messages between herself and Mr Weng. They indicate that in August 2018 Mr Weng was unsure how often [Child 1] would be in the care of Ms Weng and that he wanted [Child 1] to have some choice in the matter. It is also evident that despite [Child 1]’s own preferences, Ms Weng wanted to have care of [Child 1] for 50% of the time.

6. Overnight care of [Child 1] after 13 August 2018 is not in dispute between the parents. [Child 1] was in Ms Weng’s overnight care on 4 September 2018, and then again from 2 to 12 October 2018. The Tribunal notes the Department was notified of a further change to the care of [Child 1] and a decision was made to change the assessment effective from 8 November 2018 to reflect that Ms Weng had 50% care of [Child 1] from 2 October 2018. That decision is not before the Tribunal to review.

7. The Tribunal finds there was a change to the care of [Child 1] on 13 August 2018 when he went to live with Mr Weng. The Tribunal finds that Ms Weng had no actual overnight care of [Child 1] up until the time of the original decision as [Child 1] did not want to return to her overnight care. Mr Weng did not withhold care of [Child 1]. Although Ms Weng wanted to have 50% care of [Child 1], there was no agreement to this arrangement with Mr Weng. Evidence of the care Ms Weng did actually have after 29 August 2018 supports a finding that she had not established a pattern of care at the date of the determination.

8. The previous care determination must be revoked under subsection 54G(1) of the Assessment Act because Ms Weng has had less than regular care of [Child 1], despite Mr Weng making the child available.

9. The previous determinations as to the care of [Child 1] are revoked from 12 August 2018. From 13 August 2018 the care percentages to be used in the child support assessment are 0% for Ms Weng and 100% for Mr Weng.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that the care percentages to be used in the child support assessment from 13 August 2018  are 0% for Ms Weng and 100% for Mr Weng.