Worton and Worton (Child support)

[2018] AATA 1729

Worton and Worton (Child support) [2018] AATA 1729 (4 May 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/SC013629

APPLICANT:  Mr Worton

OTHER PARTIES:  Child Support Registrar

Ms Worton

TRIBUNAL:Member K Timbs

DECISION DATE:  4 May 2018

DECISION:

The Tribunal sets aside the decision under review. It substitutes the decision that care percentages of 15% for Mr Worton and 85% for Ms Worton apply from 26 September 2017.

CATCHWORDS
Child support – Percentages of care – Change to likely pattern of care – 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 Worton and Ms Worton are the parents of [Child 1] and [Child 2]. At relevant times, the Department of Human Services made child support assessments for them on behalf of the Child Support Registrar. Mr Worton is the parent liable to pay child support.

2. In September 2017, the Department used care percentages in the assessment of 0% for Mr Worton and 100% for Ms Worton (existing care percentages). On 26 September 2017, Mr Worton asked the Department to change the care percentages because they did not correspond with the actual care of the children. On 22 November 2017, the Department decided not to change the care percentages.

3. On 18 December 2017, Mr Worton objected to that decision. On 5 February 2018, an Objections Officer of the Department partly allowed the objection and changed the care percentages to 11% for Mr Worton and 89% for Ms Worton. The change in the care percentages had no effect on the annual rate of child support.

4. On 2 March 2018, Mr Worton applied for review of that decision. The Tribunal heard the application for review on 4 May 2018.    

ISSUES

1. The Registrar makes child support assessments using a formula in the Child Support (Assessment) Act 1989. The elements of the formula include care percentages and cost percentages for each parent for each child.

2. Cost percentages must correspond to the actual care a parent has, or is likely to have, during a care period (section 50). The care percentage is 0% for a parent who has, or is likely to have, no pattern of care (section 49).

3. The Registrar revokes care percentages in the circumstances set out in sections 54G and 54F (discussed below) and determines new care percentages to apply from the day after the revocation day.

4. To deal with Mr Worton’s application for review, the Tribunal will consider whether to revoke the existing care percentages and to determine new care percentages.

CONSIDERATION

Evidence considered

1. The Tribunal considered documents relevant to the decision under review provided by the Tribunal and written submissions provided by Mr Worton. Mr Worton and Ms Worton gave evidence at hearing.

Revocation of care percentages

1. Section 54G does not apply unless a parent who was to have care corresponding to a care percentage of at least 14% (at least regular care) ceases to have a pattern of care. It does not apply in this case.

2. Section 54F applies in this case if:

   ·         the existing care percentages do not correspond with the actual pattern of care; and

   ·         the cost percentages in the assessment would change if the Registrar determined care percentages that correspond with the actual pattern of care.

1. The annual rate of child support changes if cost percentages change. In this case, the cost percentages would change if Mr Worton had at least regular care and Ms Worton had a care percentage of 86% or less.

2. Mr Worton and Ms Worton agreed he had overnight care in accordance with a parenting agreement for 33 nights in any relevant 12-month care period. That is six nights during each mid-year school holidays (18 nights) and 15 nights in the long holiday, including Christmas Eve.

3. Mr Worton provided a list of his additional ad hoc overnight care of the children from August 2017 to March 2018. Ms Worton agreed the information was correct. It averages two nights per month for that period.

4. Mr Worton had three additional nights during the long school holidays in January 2018 and the Tribunal noted care during the long holiday period might not be typical. However, it also noted he had three additional nights care during February and March 2018. On balance, it accepts his assertion that he is likely to have ad hoc overnight care of the children for an average of two nights per month in any 12-month care period from September 2017 when he contacted the Department about the care percentages. That is an additional 24 nights.

5. It follows that Mr Worton has a pattern of caring for the children overnight for 57 nights (33 + 24) in any relevant care period. That is at least regular care because it corresponds with a care percentage of 15% (rounded down). Section 54F applies in that case.

6. Mr Worton’s evidence is that the current pattern of care applied for some time before September 2015. In that case, the date of revocation of the existing care percentages is 25 September 2016, which is the day before Mr Worton contacted the Department about the care percentages.

Making new care percentages

1. Section 50 applies and the care percentages are to correspond with the existing pattern of care. In the usual case, the Registrar will calculate them according to overnight care (section 54A). In this case, Mr Worton submitted his care percentage would be 23% if the Tribunal included other care of the children.

2. A cost percentage of 24% applies for parents with regular care percentages of 14% to 34% and the annual rate would be the same in this case if the Tribunal did, or did not, have regard to the additional care. There is no practical reason to do so and the Tribunal will disregard it for that reason.

3. The Tribunal determines new care percentages of 15% for Mr Worton and 85% for Ms Worton to apply from 26 September 2017, which is the day after the revocation day.  

DECISION

The Tribunal sets aside the decision under review. It substitutes the decision that care percentages of 15% for Mr Worton and 85% for Ms Worton apply from 26 September 2017.