Tribunal: Senior Member R Ellis
Primary Government decision
On 2 June 2022, the Child Support Agency (the Agency) and found from 15 November 2021, the percentages of care in relation to Child 1 were 0% to Mr Chappel (father) and 100% to Ms Odell (mother).
AAT decision
The Tribunal set aside the decision under review and, in substitution, decided that there was no change in the percentages of care of Child 1 from 15 November 2021.
The Tribunal declined to make a determination under subsection 95N(2) of the Child Support (Registration and Collection) Act 1988 (the Act). Therefore, the Tribunal’s decision took effect on 25 October 2022 (the date the father lodged his application for review to the Tribunal).
Details
The father and mother are the parents of Child 1. There has been a child support assessment in place since 23 April 2008.
From 19 May 2021 the percentages of care in relation to Child 1 were 100% to the father and 0% to the mother.
On 29 December 2021, the mother notified the Agency that from 15 November 2021, each parent provided 50% of care to Child 1.
The Agency decided not to accept this change in care (original decision), and the mother objected to this decision.
On 2 June 2022, an objections officer from the Agency decided that from 15 November 2021, the percentages of care in relation to Child 1 were 100% to the mother and 0% to the father (objection decision).
The father applied to the Tribunal on 25 October 2022 for review of the objection decision.
Issue
The Tribunal needed to consider whether there has been a change in the pattern of care, which requires that the existing percentages of care be revoked and replaced, and if so, from what date should new percentages of care apply.
The father acknowledged that Child 1 started to spend more time with her mother from 15 November 2021 but disputed that she had begun permanently living with her mother. The father stated Child 1 had begun to live with her mother permanently from around 5 February 2022.
When the mother contacted the Agency on 29 December 2021, she stated that Child 1 would be staying at her home regularly and provided calendars to prove she was providing more care to Child 1. These calendars contradicted her verbal statements to the Agency.
The father did not keep a calendar record of the care provided to Child 1 and believed the mother’s calendars were fabricated.
Application of law
Sections 54F, 54G and 54H of the Child Support (Assessment) Act 1989 (the Assessment Act) sets out three circumstances in which existing care percentages can be revoked.
If existing care percentages are revoked, sections 49 and 50 of the Assessment Act says that the Agency must determine new percentages of care and decide whether the parent has had, or likely to have, a pattern of care or no pattern of care.
The father had 28 days to apply for review of the objection decision. Section 95N of the Act states that where a person submits their application to the Tribunal outside the 28-day timeframe and the Tribunal varies or substitutes a decision, the decision will take effect from the day the application was lodged. However, the Tribunal may extend this timeframe if there were special circumstances that prevented a person applying for review in time.
Summary of reasons for decision
Based on the parents' different views, the Tribunal could not be satisfied with any clear certainty that there was a new pattern of care for Child 1 from 15 November 2021. Therefore, the Tribunal set the objection decision aside and in substitution decided there was no change in the pattern of care from 15 November 2021.
The Tribunal notes that the father agreed that the mother had 100% care of Child 1 from 5 February 2022. This would require a separate notification to the Agency and was not relevant to the current matter.
Given the Tribunal had set aside and substituted a new decision, and the father had lodged his application for review more than 28 days after receiving the objection decision, the Tribunal had to further consider the date of effect of the decision (section 95N of the Act). The Tribunal was not satisfied that there were special circumstances that prevented the father from applying for a review within 28 days of the objection decision. Therefore, the date of effect for the care percentage decision is 25 October 2022 (the date the father lodged his application for review).
Full decision
Read the full decision on AustLII.
Glossary and other notes
Pattern of care: care a parent is likely to have, or has had, of the child during the relevant care period.
Set aside: If the AAT sets aside a decision under review, the original decision no longer stands. The AAT may replace it with a new decision or remit the matter back to the Agency for reconsideration in accordance with AAT’s instructions or recommendations.
Disclaimer
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.