WQSX and Child Support Registrar (Child support second review)

[2019] AATA 2373

WQSX and Child Support Registrar (Child support second review) [2019] AATA 2373 (2 August 2019)

Division:  GENERAL DIVISION

File Number:      2019/0092

Re:         WQSX

APPLICANT

And        Child Support Registrar

RESPONDENT

And        LRHC

OTHER PARTY

Decision

Tribunal:  The Hon. John Pascoe AC CVO, Deputy President

Date:      2 August 2019

Place:     Sydney

The decision of the Social Services and Child Support Division dated 4 December 2018 which found that the pre-existing care percentages of 50% to each parent from 1 May 2018 should continue to apply is affirmed.

.................................[sgd].......................................

The Hon. John Pascoe AC CVO, Deputy President

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.

Catchwords

CHILD SUPPORT – review of decision of Social Services and Child Support Division – percentage of care – where father claimed the child lived entirely with him for the relevant period – contradictory documentary evidence – where mother had made a later notification of a change of care with Child Support Registrar – decision affirmed

Legislation

Child Support (Assessment) Act 1989 (Cth) – ss 49, 50

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President

2 August 2019

1. This is an application for review of a decision of the Social Services and Child Support Division of the Tribunal (‘AAT1’) dated 4 December 2018 whereby the Tribunal set aside the previous decision of the Child Support Registrar dated 28 August 2018 and decided that there was no change in the percentage of care that the Applicant (WQSX, the father) and the Other Party (LRHC, the mother) had in respect of their son  from 1 May 2018 and that the pre-existing care percentages of 50% to each parent should continue to apply.

2. The Applicant applied to the Tribunal for a review of the decision of the AAT1 on the grounds that the child (aged 16) had lived entirely with him from 1 May 2018.

3. The relevant legislation that applies when determining the percentage of care for a child for the purposes of child support is the Child Support (Assessment) Act 1989 (Cth), namely sections 49 and 50. Section 49 is to be applied where the Child Support Registrar (or in this case the Tribunal) is satisfied that a responsible person for the child ‘has had, or is likely to have, no pattern of care for the child’ during the relevant period. Section 50 is to be applied where the Registrar is satisfied that the responsible person for the child has had, or is likely to have, a pattern of care.

4. The Other Party claimed that the child had in fact shared time equally between both parties from 1 May 2018 until 29 October 2018 when he commenced an apprenticeship with the Applicant and lived primarily with him from that time. On 7 May 2019 the Other Party filed a notice with the Respondent setting out that change in circumstances. In turn, the Child Support Registrar notified the Other Party that no changes by the Registrar would be made to any determination of a percentage of care pending the outcome of these proceedings.

5. At the hearing the Registrar adopted a neutral position saying that it would follow the decision of the Tribunal.

6. The Tribunal in the AAT1 proceedings highlighted the conflicting nature of the evidence given by each of the parties, and the difficulties in reconciling that evidence and coming to a conclusion. Similar contradictory evidence was filed in relation to these proceedings.

7. At the hearing, each of the parties initially gave evidence to the Tribunal broadly in line with the material each had filed. Thus, the hearing started out with very conflicting versions as to the situation in relation to the child.

8. During the course of proceedings however, the parties were able to agree on the time the child had spent with each of them during the period from May to October 2018, and then from October onwards when the child commenced his apprenticeship with the father. It was agreed that during the period from May to October the child moved freely between the residence of the Applicant and the residence of the Other Party. At this time the parties lived close to one another.

9. Once the child commenced his apprenticeship with the Applicant he spent considerably more time with the Applicant, living almost full-time with him at the beginning of that period but later spending time on most weekends with the Other Party. It is commendable that the parties were able to work together in the best interests of the child in facilitating regular contact, looking after the child’s best interests and enabling him to successfully undertake his apprenticeship.

10. Accordingly, for the period May 2018 to May 2019, as the child moved freely between both parties, the decision of AAT1 reflected the position as agreed by the parties and should therefore be affirmed.

11. As the Other Party has already filed a notification with the Child Support Registrar for a change in care from 29 October 2019, the percentage of care from that date should now be assessed by the Registrar. The Child Support Registrar will no doubt be assisted by the agreement between the parties as to the changed arrangements for the child from October 2018.

12. I note the willingness of the parties to work together during the course of the hearing to settle disputes as to care arrangements and to do so in a way that reflects the best interests of the child.

I certify that the preceding 12 (twelve) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

...............................[sgd].........................................

Associate

Dated: 2 August 2019

Date of hearing:

15 July 2019

Applicant:

In person

Advocate for the Respondent:

Ms E Ulrick

Solicitors for the Respondent:

Department of Human Services

Other Party:

In person