Confidential and Social Security Appeals Tribunal and Confidential (Party Joined) [2010] AATA 83 (5 February 2010)

Last Updated: 16 February 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 83

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/1020

GENERAL ADMINISTRATIVE DIVISION		)
	Re		CONFIDENTIAL

Applicant

And

SOCIAL SECURITY APPEALS TRIBUNAL

Respondent

And

CONFIDENTIAL

Party Joined

DECISION

Tribunal

Mr John Handley, Senior Member

Date 5 February 2010

Place Melbourne

Decision

The decision under review is varied and the application is remitted to the respondent with a Direction that it notify the Child Support Agency of this decision and the liability of the father for child support payments be calculated by regard to the findings at paragraph 14 herein.

Sgd John Handley

Senior Member
It is noted that publication of this decision is approved by the Administrative Appeals Tribunal pursuant to s 110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).

CATCHWORDS – assessment of percentage of care by Child Support Agency during a care period – extent of care between July and December 2008 agreed – parenting plan negotiated – SSAT varied primary decision in anticipation father would establish regular care during a care period commencing in January 2009 – pattern of care was less than regular care – decision of SSAT varied and remitted to Child Support Agency to calculate percentage of care and assess liability

REASONS FOR DECISION

5 February 2010

Mr John Handley, Senior Member

1. The applicant and the mother are the father and mother respectively of a child born in 1991.
2. The background of these proceedings may be briefly summarised as follows.
3. Consent Orders were made at the Magistrate’s Court in Kyneton on 2 December 1996, with respect to the care, custody and access between the father and the mother of their daughter.
4. On 14 August 2008, an officer of the Child Support Agency made a finding that the father had 20 per cent and the mother had 80 per cent of the care of their daughter. The officer determined that the percentage of care at 20 per cent was regular care – (refer later). The mother objected to that decision and on review the Child Support Agency disallowed her objection. The mother sought review of that decision by the SSAT and on 23 February 2009, it decided that the father had 8 per cent care and the mother had 92 per cent care of their daughter with effect from 1 July 2008. The father applied by these proceedings to review that decision.
5. The expression regular care is found at s 5(2) of the Child Support (Assessment) Act 1989 (the Act). It provides that a person has regular care of a child if the person has at least 14 per cent but less than 35 per cent of the care of a child during a care period. The expression care period is found at s48 of the Act and it is a period of 12 months commencing when a parent is assessed with respect to the cost of the child or, relevantly for these proceedings, there is a change in the percentage of care for that child. The expression percentage of care is not defined but in a notation at the conclusion of s 48 of the Act there is a recording that the percentage of care is calculated having regard to the number of nights that a child is likely to be in the care of a person during the care period.
6. Whilst the parties agreed at the SSAT that there was no strict adherence to the orders made by the Magistrate at Kyneton in 1996, there was compliance in greater, part subject to a period of time when the father resided in Queensland.
7. Significant amendments to the legislation with effect from 1 July 2008 compel enquiry into and calculation of the percentage of care by respective parents of a child, with respect to a care period from 1 July 2008. Such a calculation compels identification of the percentage of care (as defined) from 1 July 2008 despite any previous findings. Sections 48 to 55 of the Act are relevant, but more so s 53 for reasons which will follow.
8. The SSAT recorded at paragraph 15 that there was an agreement between the father and the mother concerning the number of nights that the child spent with the father in the six month period between July and December 2008. During the hearing of this review both parents agreed with the findings then made by the SSAT. I am satisfied by regard to those findings and the absence of any objection by either party during this review that the child spent eight nights with the father in that six month period.
9. On 15 January 2009 the father and the mother completed negotiations concerning a parenting plan which was devised between them for a 12 month period, commencing in January 2009. The SSAT made findings in prospect, in anticipation of compliance with the plan. For reasons which need not be recorded there was, in part, non-compliance with that plan.
10. By discussion with both parties there was agreement concerning the number of nights that the child spent with the father in the period January to July 2009 as follows:
    • January 22 – 28 (inclusive);
    • April 9-12 (inclusive);
    • July 3 and 4.
11. The father said, the mother did not disagree, that the child has not spent any time with him since 4 July 2009.
12. Having regard to the above, the child has spent a total of 13 nights with the father in 2009.
13. The provisions of s 53 of the Act apply because:
    • (i) The Registrar did previously determine a percentage of care of a child with a parent during a care period and
    • (ii) The father (the first parent) was to have at least regular care of the child during a relevant care period (previous determination was 20 per cent) and
    • (iii) The father has a pattern of care now less than regular care and
    • (iv) The mother applied for a determination (being the application made by way of objection to the assessment of the Child Support Agency on 14 August 2008 which ultimately gave rise to a decision which the father reviewed before the SSAT.
14. In all of the circumstances and for the reasons above I am satisfied that the child was in the care of the father for 8 nights between July and December 2008 and for 13 nights between January and July 2009 but not subsequently. I also note that the child achieved her 18th birthday in November 2009 and it would appear from evidence at the hearing in these proceedings that she has now commenced a full time salaried apprenticeship.
15. Accordingly, the percentage of care pursuant to the Child Support Reform (New Formula and Other Measures) Regulations 2007, at Regulation 12(1)(b) and s 103DA of the Act is to be calculated having regard to the above findings.
16. The decision under review will be varied, and the application is remitted to the respondent with a Direction that it notify the Child Support Agency of that decision and the liability of the father for child support payments be calculated by regard to the findings at paragraph 14 herein.
    

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of:

Mr John Handley, Senior Member

Signed: Grace Carney, Personal Assistant

Date of Hearing 25 January 2010

Date of Decision 5 February 2010

Solicitor for the Applicant Self Represented

Solicitor for 2nd Applicant Self Represented