Aaron and Child Support Registrar (Child support)

[2020] AATA 4921

Aaron and Child Support Registrar (Child support) [2020] AATA 4921 (16 October 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/PC019664

APPLICANT:  Mr Aaron

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member S Brakespeare

DECISION DATE:  16 October 2020

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determinations correctly revoked and new determinations made - decision under review affirmed

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted 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 Aaron is the parent liable to pay child support to [Ms A] in respect of their children [Child 1] and [Child 2]. From 1 March 2016  the existing percentage of care determinations recorded that [Ms A] had 100% care of the children and Mr Aaron had 0% care of the children.

2. On 21 November 2016 [Ms A] advised the Child Support Agency that there had been a change of care and that she provided 79% care and Mr Aaron provided 21% care of the children from 2 March 2016.

3. On 5 December 2016 an officer of the Child Support Agency decided to revoke the existing percentage of care determinations and replace them with percentage of care determinations providing that [Ms A] had 79% care and Mr Aaron had 21% care with effect from 21 November 2016 (being the date of notification).

4. Mr Aaron lodged an objection to the decision on 12 May 2020. The objection was disallowed on 3 August 2020. Mr Aaron lodged an application for review of the objection decision with the tribunal. The tribunal invited [Ms A] to be added as a party to the review but she did not apply to be added. A hearing was held on 16 October 2020. Mr Aaron gave evidence on affirmation to the tribunal via conference telephone. The Child Support Agency provided the tribunal and Mr Aaron with a bundle of papers relevant to the review (116 pages).

5. Relevant aspects of the evidence and material before the tribunal will be referred to in the tribunal’s consideration of the issues which it has to decide.

ISSUE

1. The statutory provisions relevant to this review are in the Child Support (Assessment) Act 1989 (the Act) .

2. The issue which arises in this case is whether the existing percentage of care determinations should be revoked and replaced.

CONSIDERATION

1. Section 54F of the Act provides that an existing care percentage decision must be revoked if the Child Support Agency is notified, or otherwise becomes aware, that the actual care that is taking place does not correspond with the existing percentages of care recorded and that change would alter the cost percentage used for the parent in the administrative assessment.  Section 54F applies if section 54G of the Act does not apply[1].

   [1] The tribunal is satisfied that section 54G does not apply in this case.

2. Section 55C of the Act explains how to determine a parent’s cost percentage based upon their percentage of care for their children.  If the existing percentage of care determinations are revoked they must be replaced by new percentage of care determinations made under either section 49 or section 50 of the Act

3. In relation to care change matters, the legislative scheme requires any new care percentage determination to be made following notification to the Child Support Agency of a change of care arrangements. The primary decision-maker is required to assess the actual or likely pattern of care, by reference to an appropriate care period, to determine whether to revoke the existing care determination and make a new one. The tribunal’s task on review is the same. 

4. In circumstances where many months have passed before the tribunal conducts the review, further changes to the care arrangements may have occurred. However, the tribunal may review only the primary decision. In the tribunal’s view, the legislative scheme deals with any such subsequent change of care by requiring further notification to the Child Support Agency - so that a new primary care percentage decision can be considered, and made if appropriate.   

5. The primary decision-maker’s essential task was to consider any pattern of care based on actual care to the time of notification and likely care thereafter (for an appropriate care period). In this respect, on review, there is a clear ‘temporal element’ in reviewing care percentage decisions having regard to the actual or likely pattern of care at the point in time of the initial notification to the Child Support Agency. It is not appropriate, in undertaking that task, to assess care based on what happened from initial notification to the Child Support Agency up to the time of the tribunal’s hearing - and evidence as to care for this period is not likely to be relevant, save to the extent that such evidence may inform the actual or likely pattern of care as at the date of notification to the Child Support Agency.

6. Mr Aaron told the tribunal:

   ·When he and [Ms A] first separated she moved to a different town and he initially had 100% care. They then entered into a care arrangement where they each had 50% care based on a two-week turnabout.

   ·[Ms A] subsequently lost her job so he allowed her to claim 100% care so that she would have sufficient funds.

   ·In March 2016 [Ms A] then moved to another town which was two hours away. The children were therefore in her care most of the time due to the distance and their schooling arrangements. Mr Aaron did not know at that time that he could take action to ensure that he had access to the children.

   ·In early 2017 he and [Ms A] participated in mediation and arrived at an agreement where he had care for every second weekend and all of the school holidays.

   ·He did not advise the Child Support Agency of this new care arrangement. He was not worried about the child support; he was more concerned with ensuring he had some care.

   ·In May 2020 [Ms A] commenced a new realtionship and she started withholding care again and also applied to the Court for a care order. There was an interim order in place but this has now expired. The court action is still afoot.

   ·Mr Aaron said that he wants the Child Support Agency records to show his actual care so that he has evidence for the Court.

   ·He has provided the Child Support Agency with care calendars for the 2017, 2018, 2019 and 2020 calendar years. He used photos and his phone text messages to work out the care dates.

7. The tribunal notes that [Ms A] advised the Child Support Agency on 21 November 2016 that Mr Aaron had regular care of the children, being every second Friday, Saturday and Sunday night. The Child Support Agency was unable to contact Mr Aaron at the time to confirm the care arrangement.

8. The tribunal notes Mr Aaron’s evidence that his care was substantially reduced from March 2016 because [Ms A] had relocated with the children. The tribunal accepts that, at the time [Ms A] advised the Child Support Agency of the care change, the actual care over a 12-month period was likely to be 3 nights per fortnight (21% care).

9. The tribunal  accepts that in early 2017 the parties attended mediation and Mr Aaron’s  care was increased by the inclusion of the school holidays. However, the tribunal finds that the care arrangement arising from mediation was a subsequent care arrangement. The parties needed to advise the Child Support Agency of that change in care in order for new percentage of care determinations to be made.

10. The subsequent care change is not one which the tribunal can take into account, or review, as an original decision has not been made by the Child Support Agency about the subsequent care change.

11. The tribunal finds that the existing percentage of care determinations which reflected [Ms A] having 100% care and Mr Aaron having 0% care must  be revoked and replaced by new percentage of care determinations made under section 50 of the Act. Those percentage of care determinations reflect the care the parties had, or were likely to have, at the time the care change was advised. The tribunal therefore finds that Mr Aaron’s care was 21% and [Ms A]’s care was 79%. As the date of advice was more than 28 days after the care change day, the date of effect of the new percentage of care determinations is the advice day of 21 November 2016.

DECISION

The decision under review is affirmed.