Wheatcroft and Picone (Child support)

[2018] AATA 4591

Wheatcroft and Picone (Child support) [2018] AATA 4591 (26 October 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/AC014741

APPLICANT:  Mr Wheatcroft

OTHER PARTIES:  Child Support Registrar

Ms Picone

TRIBUNAL:Member J Longo

DECISION DATE:  26 October 2018

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that Mr Wheatcroft has a percentage of care of 0% for [Child 1] and Ms Picone has a percentage of care of 100% for [Child 1] from 7 January 2018 to 3 February 2018.

CATCHWORDS
CHILD SUPPORT – percentage of care – likely pattern of care changed – existing determination revoked and new determination 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.Mr Wheatcroft and Ms Picone are the parents of [Child 1]. Mr Wheatcroft is the parent liable to pay child support.

2.On 19 May 2014, the Department of Human Services – Child Support (the Department) determined that Ms Picone had a percentage of care for [Child 1] of 80% and that Mr Wheatcroft had a percentage of care of 20% for [Child 1]. 

3.Ms Picone contacted the Department on 29 January 2018 and stated that there had been a change in the care and that the care had changed to 0% for Mr Wheatcroft and 100% for Ms Picone for [Child 1] from 8 January 2018.

4.On 5 April 2018, the Department amended the percentage of care for [Child 1] to 0% to Mr Wheatcroft and 100% to Ms Picone from 8 January 2018. On 30 May 2018, Mr Wheatcroft lodged an objection to the decision of the Department. On 19 July 2018, an objections officer disallowed Mr Wheatcroft’s objection.

5.On 7 August 2018, Mr Wheatcroft lodged an application with the Administrative Appeals Tribunal (the tribunal) for a review of the decision. The hearing took place on 26 October 2018. Mr Wheatcroft and Ms Picone spoke to the tribunal via conference telephone and gave sworn evidence. In making its decision, the tribunal took into consideration the documents (numbered 1 to 210) provided by the Department, which were also sent to both parties.

CONSIDERATION

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

Has there been a change in the care of [Child 1]?

7.It is uncontroversial that the care arrangements for [Child 1] were, from 19 May 2014, reflected as 80% to Ms Picone and 20% to Mr Wheatcroft.

8.Mr Wheatcroft stated that they had made a parenting plan but this was never signed. The care has therefore occurred between Mr Wheatcroft and Ms Picone without any written agreement with Mr Wheatcroft having the care of [Child 1] two nights (Friday and Saturday nights) every three weeks and for one week during the school holidays. Ms Picone did not dispute that these were the care arrangements prior to 7 January 2018.

9.Mr Wheatcroft stated that in January 2018 [Child 1’s] care changed due to the onset of anxiety from the separation of Ms Picone from her husband. He had his care with [Child 1] as normal but on this occasion, he began to scream and cry inconsolably. He would not settle or sleep and was disturbing the others. He decided to take [Child 1] to Ms Picone’s home and his demeanour changed. [Child 1] had a medical appointment to discuss these issues on 7 January 2018 and then remained in Mr Wheatcroft’s care for the week but due to his uncontrollable behaviour, he returned to Ms Picone’s care until 3 February 2018. From 3 February 2018, the care resumed to the previous level prior to this change.

10.Section 50 of the Act requires a new determination of a percentage of care to be made where an existing determination has been revoked and the tribunal is satisfied either that the person has had, or is likely to have, a pattern of care during a care period.

Should the existing care determinations in relation to [Child 1] be revoked?

11.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.

12.In this case, the tribunal has determined that a care determination was made under section 50 of the Act from 19 May 2014 and that Ms Picone had a percentage of care for [Child 1] of 80% and that Mr Wheatcroft had a percentage of care of 20% for [Child 1]. Therefore, paragraph 54F(1)(a) of the Act is satisfied. Section 50 of the Act provides that if the tribunal revokes a determination and is satisfied that a party has had, or is likely to have, a pattern of care of [Child 1], the tribunal must determine the percentage of care during the care period. ‘Actual care’ may be worked out based on the number of nights the child was or will be in the care of the person (subsection 54A(1)).

13.The tribunal is required to consider what the actual care of [Child 1] was or is likely to be during the care period. The care period is such a period as the Child Support Registrar considers appropriate having regard to all the circumstances (section 50 of the Act). The Department’s policy, as set out in Chapter 2.2.1 of the Child Support Guide, is that a care period is generally a 12-month period from the day on which the actual care for a child changed. This policy is not binding on the tribunal but the tribunal has determined that it is appropriate to consider the policy in the circumstances of this matter. The tribunal considers that, in the circumstances of this case, an appropriate care period is the period from 7 January 2018 to 3 February 2018, being the date on which Mr Wheatcroft stated that a change to care arrangements had occurred.

14.The tribunal has determined that the care for Mr Wheatcroft and Ms Picone accords with the oral evidence. Ms Picone did not dispute Mr Wheatcroft’s evidence and agreed the care changed on 7 January 2018 due to [Child 1’s] psychological state. He underwent treatment and counselling and Ms Picone confirmed that the care resumed with Mr Wheatcroft from 3 February 2018 to the level of care as recorded from 19 May 2014, that is 80% of the care with Ms Picone and 20% of the care with Mr Wheatcroft in relation to [Child 1].

15.Accordingly, the date of effect of the tribunal’s decision in respect of care will be 7 January 2018, the date Ms Picone notified the Department that a change in the care had occurred. The tribunal has determined that the care should be changed from 7 January 2018 to show that [Child 1] was in Ms Picone’s care for 100% of the time.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that Mr Wheatcroft has a percentage of care of 0% for [Child 1] and Ms Picone has a percentage of care of 100% for [Child 1] from 7 January 2018 to 3 February 2018.