Tribunal: Senior Member M Kennedy
The AAT set aside a decision by Services Australia and decided that the Applicant’s objection about their care determination should be allowed and determined new care percentages for each parent.
The Applicant and the Second Party had a child support assessment in place for two children. The child support liability was calculated based on the Applicant having 34% of care and the Second Party having 66% of care.
The Applicant notified Services Australia that there was a change in the pattern of care for the children, and he now had 46% of care in accordance with a recent court order. This calculation was based on the hours the children were in his care, including hours when the children were in school.
The Second Party objected, and Services Australia decided that the care percentage determination should be calculated using the number of nights the children were in the care of each parent rather than hours. This new care percentage determination reflected 27% care to the Applicant and 73% care to the Second Party.
The court orders, which the parents agreed they were following, provided for a 2-week cycle of care:
- Week 1: The children are in the Second Party’s care every night, including the weekend. The children are considered to be in the Applicant’s care during school hours but are considered to be in the Second Party’s care outside of school hours, including during the day on non-school days.
- Week 2: The children are considered to be in the Applicant’s care during school hours if the children are at school and are in the Applicant’s physical care from after school until 7 pm each school day, but not overnight.
- During school holidays, the Applicant and the Second Party have care of the children during alternating weeks.
The Applicant argued that he incurred after-school costs for the children, among other costs, until 7 pm on Week 2. The Second Party accepted this was the case but objected to hours where the children were physically in school being included in the Applicant’s care percentage.
Application of law
It is the norm to use the number of nights a person cares for a child to measure their care percentage. However, the AAT could also adopt a different approach if the circumstances of the care arrangements justify doing so to achieve a more reasonable outcome.
The AAT decided that calculating care in hours would be more reasonably accurate as this considered the actual costs incurred by the Applicant, particularly for care provided immediately after school. The Tribunal also determined that the Applicant did not provide direct physical care to the children for most of the rest of the fortnight; instead, costs for this care fell on the Second Party. Therefore, the AAT excluded the times the children were physically in school from the calculation.
The AAT decided that the objection was allowed, and new care determinations should reflect that the children were in the Applicant’s care for 39% and Second Party’s care for 61% the of the time.
Read the full decision on AustLII.
Number of nights Section 54A of Child Support (Assessment) Act 1989
Set aside If the AAT sets aside a decision under review, the original decision no longer stands. The AAT may make a new decision or remit the matter to the original decision-maker.
Every case before the AAT is determined on its individual facts. These summaries may not include all information considered by the AAT and do not constitute legal advice. You should read the full decision to ensure you understand the basis of our decision.