Wilbor and Wilbor (Child support)

[2019] AATA 1740

Wilbor and Wilbor (Child support) [2019] AATA 1740 (2 May 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/MC015903

APPLICANT:  Mrs Wilbor

OTHER PARTIES:  Child Support Registrar

Mr Wilbor

TRIBUNAL:Member C Breheny

DECISION DATE:  02 May 2019

DECISION:

The decision under review is set aside and a decision substituted that Mrs Wilbor has 59% and Mr Wilbor has 41% care of the children from 18 September 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

BACKGROUND

1. Mrs Wilbor and Mr Wilbor are the separated parents of [three children, dates of birth specified]. Since August 2014, child support has been payable on the basis that the children have been in shared care (Mrs Wilbor had 58% and Mr Wilbor had 42% care). Mr Wilbor is the parent liable to pay child support to Mrs Wilbor.

2. On 16 October 2018, Mrs Wilbor contacted the Department of Human Services – Child Support (the Department) to advise that she had care of the children nine nights per fortnight from 18 September 2018. Mr Wilbor stated that there had only been a temporary change to the existing care arrangements. On 30 October 2018, a decision was made that Mrs Wilbor had 65% and Mr Wilbor had 35% care of the children from 18 September 2018.

3. On 8 November 2018, Mr Wilbor objected to the decision and on 8 February 2019, an objections officer of the Department decided to allow the objection. The objections officer found that there had not been a change of care, thus the exiting care percentages continued to apply.

4. On 9 February 2019, Mrs Wilbor applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal for an independent review of the objection decision. The application was heard on 2 May 2019. Mrs Wilbor and Mr Wilbor attended the hearing by conference telephone and gave evidence on affirmation. A representative of the Child Support Registrar did not attend the hearing. I had before me the Statement and Documents provided by the Department pursuant to subsection 37(1) of the Administrative Appeals Tribunal Act 1975, received on 12 March 2019 (documents numbered 1–171).

ISSUES AND CONSIDERATION

1. The relevant legislation is the Child Support (Assessment) Act 1989 (the Act). The issue for me to consider in this review is whether a care change occurred on 18 September 2018 such that the existing care determination for the children should be revoked and a new care determination made and, if so, from what date it should apply.

2. Sections 49 and 50 of the Act require consideration of the actual, or likely, pattern of care that the parents will have in relation to the children. Section 54F of the Act provides that an existing care percentage decision must be revoked if the Department is notified, or becomes aware, that the actual care that is taking place does not correspond with the existing percentages of care recorded and that a care change would alter the cost percentage used for the parent in the administrative assessment. Section 55C of the Act contains a table that is used to work out a person’s cost percentage:

Cost percentages
Item	Column 1 Percentage of care	Column 2 Cost percentage
1	0 to less than 14%	Nil
2	14% to less than 35%	24%
3	35% to less than 48%	25% plus 2% for each percentage point over 35%
4	48% to 52%	50%
5	more than 52% to 65%	51% plus 2% for each percentage point over 53%
6	more than 65% to 86%	76%
7	more than 86% to 100%	100%

1. In this case, departmental records indicate that Mrs Wilbor had 58% and Mr Wilbor had 42% care of the children since 18 August 2014 (folio 170). Records also show that Mrs Wilbor contacted the Department on 16 October 2018 to advise that care of the children changed from 18 September 2018 (folio 26).

2. Both Mr Wilbor and Mrs Wilbor confirmed that Mr Wilbor usually has care of the children six nights each fortnight from Thursday night to Tuesday night (156 nights per annum or 42%). In early September 2018, Mr Wilbor informed Mrs Wilbor that he could not have the children on Tuesday nights as he was attending medical appointments.

3. Both parties agreed that the children were in Mrs Wilbor’s care for five Tuesday nights: 4 September, 18 September, 2 October, 16 October and 30 October 2018. The children went back into Mr Wilbor’s care from 13 November 2018 and the usual care arrangement recommenced.

4. Mrs Wilbor said that she does shift work. She usually does evening shifts (to 11:00 pm) and is on call throughout the night (to 8:00 am), when the children are in Mr Wilbor’s care. She needed to rearrange her roster to an early shift (to finish at 6:00 pm) for those extra Tuesdays that Mr Wilbor was unable to care for the children. This meant that she lost additional income of about $200 to $400 for each of those five shifts.

5. Mrs Wilbor agreed that they do not have a formal care arrangement and that there is some flexibility in the care that they provide for the children, but in this case she actually lost a significant amount of income.

6. Mrs Wilbor confirmed that Mr Wilbor told her that he had medical appointments on Tuesday nights and could not have care of the children, but she did not know whether this was a temporary or a permanent arrangement. She notified the Department because there had been a change in care.

7. Mr Wilbor stated that the care change was never intended to be permanent. He had consulted his doctor and had been referred to a [specialist] for [treatment]. He was given six sessions and the [specialist] was only available on Tuesday nights, so he was unable to look after the children at that time. He was aware that Mrs Wilbor needed to change her roster and gave her an extra $50 for each of those Tuesday nights. He was not aware that Mrs Wilbor contacted the Department to notify a care change until they contacted him.

8. A text message from Mr Wilbor dated 31 August 2018 (folio 11) notes “I’ll have them the first week then. I’m not sure if it’s going to be permanent quite yet…”

9. A further text message of 16 October 2018 (folio 68) states “We agreed many week ago that you were having them on Tuesday until further notice. The kids know that…”

10. A text message from Mr Wilbor dated 26 October 2018 (folio 66) indicates, “I have just spoken to CSA. They indicated you have requested a change of care. I have indicated that I don’t wish this to change and that the Tuesday nights were temporary…I have one more appointment next Tuesday. Then return back to normal…”

Conclusion

1. Care is generally calculated over a “care period”, which is a period that the Registrar or the Tribunal considers to be appropriate having regard to all the circumstances of the matter (section 50 of the Act). The Department’s policy in this regard, 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, but may be a shorter period depending on the circumstances of the case.

2. In this case, there is evidence that Mr Wilbor informed Mrs Wilbor that he could not have care of the children on Tuesday nights due to medical appointments and both parties agreed that Mr Wilbor did not have care for the children for five Tuesday nights. Mrs Wilbor however notified the Department that a change of care occurred from 18 September 2018. This means that over a 12-month care period from 18 September 2018 to 17 September 2019, Mr Wilbor had four nights less care, amounting to 152 nights[1] per annum or 41%. In accordance with section 55 of the Act, that changes Mr Wilbor’s cost percentage from 39% to 37%.

   [1] 26 fortnights x 6 nights = 156 nights – 4 nights = 152 nights/365 = 41.6%

3. As stated above, section 54F of the Act provides that an existing care determination must be revoked if the Registrar becomes aware that the person’s actual care does not correspond with the existing care percentage and the Registrar is satisfied that the cost percentage would change if another care percentage were to be determined.

4. In this case, I am satisfied and find that Mr Wilbor’s care percentage decreased from 42% to 41% from 18 September 2018. The decreased care percentage changes the cost percentage and, in accordance with section 54F of the Act, the existing care determination is to be revoked.

5. Paragraph 54F(3)(a) of Act provides that the revocation of the determination takes effect on the day before the change of care day, if the Registrar is notified within 28 days of the care change. Mrs Wilbor notified the Department on 16 October 2018 that care had changed from 18 September 2018. This means the existing care determination is revoked on 17 September 2018 and the new care determination applies to the child support assessment from 18 September 2018.

6. This is a different conclusion to that reached by the objections officer and I therefore set aside the decision under review and substitute my decision that Mrs Wilbor has 59% and Mr Wilbor has 41% care of the children from 18 September 2018.

DECISION

The decision under review is set aside and a decision substituted that Mrs Wilbor has 59% and Mr Wilbor has 41% care of the children from 18 September 2018.