Wilshere and Wilshere (Child support)

[2020] AATA 574

Wilshere and Wilshere (Child support) [2020] AATA 574 (28 January 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/SC017714

APPLICANT:  Ms Wilshere

OTHER PARTIES:  Mr Wilshere

Child Support Registrar

TRIBUNAL:Member P Jensen

DECISION DATE:  28 January 2020

DECISION:

The decision under review is varied so that Ms Wilshere is recorded as providing 65% care and Mr Wilshere is recorded as providing 35% care to [Child 1] with effect from 1 March 2019.

The Child Support Registrar is referred, in particular, to paragraph 7 of the Tribunal’s Reasons for Decision.

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. Ms Wilshere and Mr Wilshere are the parents of [Child 1]. A child support case was registered with the Department of Human Services – Child Support (“the CSA”) on 17 July 2017. This case concerns the parents’ recorded care of [Child 1] from 1 March 2019. For convenience, I will refer to Mr Wilshere’s care. Ms Wilshere has always provided the balance of care.

2. By way of background, Mr Wilshere was recorded as providing 22% care from 17 July 2017, and 23% care from 30 July 2018.

3. [In] February 2019, Interim Court Orders were made concerning the care of [Child 1] from 1 March 2019. Mr Wilshere promptly advised the CSA of the change in care. The CSA decided to record Mr Wilshere as providing 35% care with effect from 1 March 2019. Mr Wilshere promptly objected to that decision.

4. [In] October 2019, Final Court Orders were made concerning the care of [Child 1]. Ms Wilshere promptly advised the CSA of the change in care. Ms Wilshere calculated that Mr Wilshere would provide 39% care pursuant to the Final Court Orders. Mr Wilshere disagrees with those calculations.

5. On 24 October 2019 an objections officer allowed Mr Wilshere’s objection and decided to record him as providing 39% care with effect from 1 March 2019. Ms Wilshere promptly applied to the Tribunal for further review. I conducted a hearing on 28 January 2020. Ms Wilshere and Mr Wilshere gave sworn evidence by conference phone.

6. Care decisions are made pursuant to the Child Support (Assessment) Act 1989 (“the Act”). Decision-makers are required to determine the pattern of care that each parent has provided, and is likely to provide, over the relevant care period: sections 49 and 50 of the Act. At the hearing, both parents submitted that Mr Wilshere should be recorded as providing 35% care with effect from 1 March 2019. Ms Wilshere provided detailed calculations of Mr Wilshere’s care pursuant to the Interim Court Orders from [March] 2019 to [February] 2020, which supported the parents’ submissions, and I accept those submissions. Mr Wilshere will be recorded as providing 35% care with effect from 1 March 2019.

7. Both parents also stated, in effect, that the issue in dispute is their recorded care from 10 October 2019. According to the documentation provided by the CSA, Ms Wilshere promptly advised the CSA of a change in care from 10 October 2019 but the CSA has not yet made a decision in respect of that change in care. If that is the case, then the CSA is required to make a care decision in respect of that reported change in care, and both parents will have review rights in respect of that care decision once it has been made.

8. However, at the hearing both parents stated that the CSA had in fact made that decision — it decided to not record a change in care from 10 October 2019 — and it notified them of that decision via letters dated 10 January 2020. If that is the case, then, as was discussed during the hearing, each parent already has review rights in respect of that care decision.

DECISION

The decision under review is varied so that Ms Wilshere is recorded as providing 65% care and Mr Wilshere is recorded as providing 35% care to [Child 1] with effect from 1 March 2019.

The Child Support Registrar is referred, in particular, to paragraph 7 of the Tribunal’s Reasons for Decision.