Wirth and Child Support Registrar (Child support)

[2021] AATA 2911

Wirth and Child Support Registrar (Child support) [2021] AATA 2911 (21 June 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/BC021205

APPLICANT:  Mr Wirth

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member H Moreland

DECISION DATE:  21 June 2021

DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that from 27 January 2021, Mr Wirth had 79% of care and [Ms A] had 21% of [Child 1] and [Child 2]’s care.

CATCHWORDS

CHILD SUPPORT – percentage of care – what was the likely pattern of care from the start of the administrative assessment – 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. Mr Wirth and [Ms A] are the parents of [Child 1] and [Child 2]. Mr Wirth is the parent liable to pay child support.

2. On 25 February 2021, the Department of Human Services (now Services Australia) – Child Support (Child Support) determined that Mr Wirth had a percentage of care for [Child 1] and [Child 2] of 50% and that [Ms A] had a percentage of care of 50% from 27 January 2021, the day [Ms A] made an application for an assessment of child support in respect of the two children.

3. Mr Wirth lodged an objection to this decision on 8 March 2021. This objection was disallowed by an objections officer on 7 April 2021. On 9 April 2021, Mr Wirth lodged an application to the Administrative Appeals Tribunal (the tribunal) for a review of the decision. The hearing took place on 21 June 2021. Mr Wirth spoke to the tribunal via conference telephone and gave sworn evidence. [Ms A] did not respond to an invitation to be an added party and was consequently not a party to the application. In making its decision, the tribunal considered the documents provided by Child Support (71 pages), which were also sent to Mr Wirth.

CONSIDERATION

1. The law that applies in this case is the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration Act).

What was the care of [Child 1] and [Child 3] on 27 January 2021?

1. As shown in the Child Support papers, Child Support accepted the pre-existing care determinations made by the Family Assistance Office.[1] The Child Support papers also show that when Mr Wirth objected to the original decision he was given the opportunity to submit evidence to support his assertion that his care percentage in relation to [Child 1] and [Child 2] was 50% from 27 January 2021 and none was received by the time the objection decision was made.[2] The tribunal observes that there was no third party evidence in the original hearing papers sent to it by Child Support. Mr Wirth told the tribunal that he had problems uploading the evidence before the objection decision was made.

   [1] Child Support papers p, 53.

   [2] Child Support papers, pp 54-55.

2. The tribunal received additional evidence from Child Support, which had been provided by Mr Wirth, on 1 June 2021. It included a letter which Mr Wirth said was from his mother, as well as a letter from [Name] Day Care.[3] The letter from [Name] Day Care is dated 9 April 2021 and states that [Child 1] attended the day care centre and was collected by Mr Wirth or his partner “the majority of the time” and [Child 1] and [Child 2] are collected by [Ms A], or an authorised nominee, every second Friday.

   [3] Child Support papers, pp 69-70.

3. Mr Wirth told the tribunal that this was the arrangement that was in place prior to and since 27 January 2021 but that there is no formal parenting plan or court order in relation to [Child 1] and [Child 2]’s care. He said that the children are in his care for 11 nights per fortnight and attend a combination of school, out of hours school care and child care. Mr Wirth said that [Ms A] collects [Child 1] and [Child 2] every second Friday night and drops them off at school and child care on the following Monday.

4. Having reviewed the evidence before it, the tribunal is satisfied that this was the pattern of care for [Child 1] and [Child 2] from 27 January 2021. This means the tribunal finds, pursuant to section 50 of the Act, that from 27 January 2021, Mr Wirth had a care percentage of 79% in relation to [Child 1] and [Child 2], and [Ms A] had a care percentage of 21% in relation to [Child 1] and [Child 2].

DECISION

The tribunal sets aside the decision under review and, in substitution, decides that from 27 January 2021, Mr Wirth had 79% of care and [Ms A] had 21% of [Child 1] and [Child 2]’s care.