Wentworth and Brownlow (Child support)

[2019] AATA 4883

Wentworth and Brownlow (Child support) [2019] AATA 4883 (20 September 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/SC016892

APPLICANT:  Mr Wentworth

OTHER PARTIES:  Ms Brownlow

Child Support Registrar

TRIBUNAL:Member P Jensen

DECISION DATE:  20 September 2019

DECISION:

The decision under review is varied so that Mr Wentworth is recorded as providing 27% care and Ms Brownlow is recorded as providing 73% care to [Child 1], with effect from 13 December 2018.

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

1. Mr Wentworth and Ms Brownlow are the parents of [Child 1] and [another child]. A child support case was registered with the Department of Human Services – Child Support (“the CSA”) in 2009. This case concerns the parents’ recorded care of [Child 1].

2. Court Orders were made on 24 January 2017 concerning the parents’ care of the children. Pursuant to those Orders, the CSA recorded Mr Wentworth as providing 36% care and Ms Brownlow as providing 64% care to [Child 1]. Broadly speaking, Mr Wentworth provided three blocks of three nights’ care every four weeks during school terms, and he provided care during half of the school holidays. Each block of three nights’ care occurred on Friday, Saturday and Sunday nights.

3. On 13 December 2018, Ms Brownlow informed the CSA of a change in care. The CSA subsequently decided to record Mr Wentworth as providing 21% care and Ms Brownlow as providing 79% care to [Child 1], with effect from 13 December 2018. Mr Wentworth promptly objected to that decision. An objections officer disallowed his objection. He promptly applied to the Tribunal for further review. I heard the matter on 20 September 2019. Mr Wentworth and Ms Brownlow participated in the hearing by conference phone.

4. There is no dispute that [Child 1] enrolled in [a course] in May 2018 and participated in that activity every Friday night, starting on 1 June 2018. From that date, Mr Wentworth ceased providing Friday night care during school terms, and Ms Brownlow provided that care.

5. Broadly speaking, there are 40 weeks of school and 12 weeks of school holidays per year. From 1 June 2018, Mr Wentworth’s pattern of care equated to:

   ·     (10  4-week periods) x (3 blocks of care per 4-week period) x (2 nights of care per block of care) = 60 nights of care during school terms; and

   ·     12 weeks of school holidays x 7 nights per week x ½ the school holidays =  42 nights of care during school terms.

6. For those reasons, Mr Wentworth’s pattern of care from 1 June 2018 equated to (60 + 42) / 365 = 27.9% care, which is rounded down to 27% pursuant to 54D of the Child Support (Assessment) Act 1989 (“the Act”), which states that percentages less than 50% are rounded down to the nearest whole number. As an aside, if a person is recorded as providing at least 14% but less than 35% care, changes in percentages of care within that range of percentages do not change the rate of child support payable: section 55C of the Act.

7. Mr Wentworth submitted, in effect, that a decision should have been made to continue to record him as providing his Court-ordered pattern of care, i.e. 36% care, rather than his actual pattern of care, i.e. 27% care. Such a decision is called an interim determination. When the change in care occurred, section 51 of the Act allowed for the making of an interim determination if certain requirements were satisfied, including a requirement that “[the] person who has reduced care … has taken reasonable action to ensure that the [Court Order] is complied with.” Section 51 has subsequently been amended.

8. Shortly after Mr Wentworth ceased providing care on Friday nights, he organised mediation which concluded on 11 July 2019 when the parents reached an agreement concerning the circumstances surrounding changeovers and the care to be provided on the Mother’s Day weekend and the Father’s Day weekend. At the hearing, Mr Wentworth acknowledged that after 11 July 2019, he did not take any action to ensure that he provided Friday night care pursuant to the Court Orders. Ms Brownlow continued to provide that care.

9. It is not necessary to examine the requirements of section 51 of the Act in detail because even if all the requirements were satisfied, an interim determination could only have applied until Mr Wentworth ceased taking reasonable action to ensure that the Court Order was complied with: subparagraph 54C(2)(b)(ii) of the Act. At most, an interim determination could have applied from 1 June 2018 to 11 July 2018. However, because neither parent reported the change in care within 28 days of it occurring, the change in care has effect for child support purposes from the date of notification, i.e. 13 December 2018: sections 50, 54B and 54F of the Act. The delay in notifying the CSA of the change in care has resulted in Mr Wentworth continuing to be recorded as providing 36% care until 13 December 2018. Whether he could have been recorded as providing 36% care from 1 June 2018 to 11 July 2018 pursuant to an interim determination is therefore irrelevant.

DECISION

The decision under review is varied so that Mr Wentworth is recorded as providing 27% care and Ms Brownlow is recorded as providing 73% care to [Child 1], with effect from 13 December 2018.