Wickstead and Wickstead (Child support)

[2021] AATA 3695

Wickstead and Wickstead (Child support) [2021] AATA 3695 (9 August 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/AC021536

APPLICANT:  Ms Wickstead

OTHER PARTIES:  Child Support Registrar

Mr Wickstead

TRIBUNAL:Member J Thomson

DECISION DATE:  9 August 2021

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that, in respect of the children, [Child 2] and [Child 1]:

• The existing care percentage determination of 70% to Mr Wickstead is revoked from 25 March 2020 and replaced with a new care percentage determination of 56%; and

• The existing care percentage determination of 30% to Ms Wickstead is revoked from 23 March 2021 and replaced with a new care percentage determination of 44%.

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 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. Ms Wickstead and Mr Wickstead are the parents of [Child 1], born 2010, and [Child 2], born 2008.

2. Prior to Mr Wickstead’s notification of a change in care for [Child 1] and [Child 2], notified on 24 March 2021, the care percentages being assessed by the Child Support Agency (the Agency) were 30% to Ms Wickstead and 70% to Mr Wickstead.

3. Ms Wickstead seeks review of an objection decision made by the Agency on 20 May 2021. This decision allowed her objection to a decision made by the Agency on 8 April 2021 to reflect the care of [Child 1] and [Child 2] as 56% to Mr Wickstead and 44% to Ms Wickstead with effect from 22 March 2020, notified on 24 March 2021,and in substitution, determined new care percentages of 37% to Ms Wickstead and 63% to Mr Wickstead from 26 March 2020, notified on 24 March 2021.

4. The Tribunal heard the matter on 27 July 2021. Both parents attended the hearing via conference telephone and gave affirmed evidence. The Tribunal had before it copies of documentation provided by the Agency (Exhibit 1) and each of the parents (Exhibits A and B respectively).

5. The parents had copies of these documents with them at the hearing.   

CONSIDERATION

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act). Sections 49 and 50 of the Act provide for new care decisions to be made. Section 49 applies, relevantly, if the parent “has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Section 50 applies, relevantly, if the parent “has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Both sections reflect the idea that the Agency makes point-in-time care decisions on the basis of what has happened up until the change in care is considered and what is likely to happen thereafter. Of course, what is likely to happen may not eventuate and when such a divergence occurs, a parent can notify the Agency, and a new care determination can be made. However, the legislative test at first instance and on review remains the same: what had happened until the date of the notification and what was likely to happen thereafter?

2. At the hearing, both parents acknowledged and agreed that a change in care with respect to the children had occurred on 26 March 2020 as a consequence of changes to the respective parents’ work rosters, and that the date of notification of that change in care had not occurred until 24 March 2021. The issue at the hearing was therefore the correct reflection of their care percentages based on their changed work rosters.

3. At the outset of the hearing, Mr Wickstead gave evidence that he had compiled a fresh spreadsheet analysis of the respective parents’ new work rosters applying from 26 March 2020, which he said he and Ms Wickstead had discussed, but which he had only recently submitted to the Tribunal (Exhibit B). Although Ms Wickstead did not have a copy of this exhibit at the commencement of the hearing, Mr Wickstead sent her a copy of this Exhibit to her via email during the course of the hearing.

4. During the hearing, Ms Wickstead acknowledged she had received and considered the copy of Mr Wickstead’s spreadsheet analysis of the parents’ work rosters, reflecting the calculation of their respective care percentages for the children, [Child 1] and [Child 2], as 160 nights to Ms Wickstead, equating to 44% (43.9% rounded up to 44%), and 205 nights of care to Mr Wickstead, equating to 56% care. Ms Wickstead said she accepted Mr Wickstead’s spreadsheet analysis and the care percentages reflected therein.

5. The Tribunal has considered Mr Wickstead’s spreadsheet analysis of the parents’ new revised work rosters and is satisfied the care percentages reflected therein are an accurate reflection of the care percentages of 56% to Mr Wickstead and 44% to Ms Wickstead.

6. The Tribunal will therefore revoke Mr Wickstead’s existing care percentage of 70% from 25 March 2020 (the day before the actual date of the change in care occurring on 26 March 2020) and replace it with a new care percentage determination of 56%, and revoke Ms Wickstead’s existing care percentage of 30% from 23 March 2021 (the day before the date of notification of the change in care occurring on 24 March 2021), and replace it with a new care percentage determination of 44%.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that, in respect of the children, [Child 2] and [Child 1]:

·     The existing care percentage determination of 70% to Mr Wickstead is revoked from 25 March 2020 and replaced with a new care percentage determination of 56%; and

·     The existing care percentage determination of 30% to Ms Wickstead is revoked from 23 March 2021 and replaced with a new care percentage determination of 44%.