Albertson and Child Support Registrar (Child support)

[2019] AATA 5133

Albertson and Child Support Registrar (Child support) [2019] AATA 5133 (12 August 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/SC016648

APPLICANT:  Mr Albertson

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member M Kennedy

DECISION DATE:  12 August 2019

DECISION:

The decision under review is set aside and the objection is allowed so as to revoke the existing care determination with effect on the child support assessment from 25 September 2018, and to make a new care determination that there is a care percentage determination of 41% for Mr Albertson and 59% for [Ms A] with effect on the child support assessment from 26 September 2018.

CATCHWORDS

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

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.

REASONS FOR DECISION

1. These reasons are to be read in conjunction with the Tribunal’s reasons in matter 2019/ SC016622.

2. Mr Albertson and [Ms A] are the parents of [Child 1], in respect of whom a child support assessment is in place.  [Ms A] di not respond to the Tribunal’s invitation to be joined as a party to this review, and she is therefore not a party.

3. From 28 September 2015, child support has been calculated on the basis that Mr Albertson had 33% care of [Child 1], and [Ms A] had 67% care of [Child 1].  On 26 September 2018, Mr Albertson contacted the Department and advised that the care determination should reflect that he has 45% care, and that this had taken place since 1 July 2017.

4. In circumstances that are not entirely clear, the Department also treated the contact of 26 September 2018 as involving a second notification of a change to the care arrangements, but from 1 July 2018.

5. The Department, at first instance, decided not to revoke the existing care determination either in respect of 1 July 2017 nor 1 July 2018.  Mr Albertson objected to both decisions.

6. The objections officer disallowed the objection in relation to the care change notified in respect of 1 July 2017.  I have reviewed that matter in proceedings SC016622 and set the decision aside so as to revoke the existing care determination, although with effect on the child support assessment only from 25 September 2018, and to put in place a care determination that Mr Albertson had 41% care.

7. The objections officer allowed Mr Albertson’s objection in relation to the care change from 1 July 2018, revoked the existing care determination with effect from 25 September 2018, and put in place a care percentage determination of 42%. This decision was made on 27 April 2019

8. Mr Albertson applied for review of that decision on 31 May 2019, but at the hearing was not sure whether it was necessary for the review to proceed.  The matter however remains an active review before the Tribunal that must be dealt with, although the question as to whether the objection should be allowed or disallowed has become largely abstract and redundant, having been practically overtaken by the outcome of the review in matter SC016622.

CONSIDERATION

1. The statutory provisions relevant to the revocation and making of care determinations have recently been the subject of reform.  The new legislation applies in circumstances where the ‘change of care day’ is after either 23 May 2018 or 1 July 2018 or if the change of care day that occurs before 1 July 2018 but the Registrar is notified, or otherwise becomes aware, of the change of care more than 26 weeks after 1 July 2018 (depending on the provision applied).  In this review, the claimed change of care day is 1 July 2018, but I am not satisfied that a change to the care arrangements took place on 1 July 2018.  My finding in matter SC016622 is that the change of care day in that matter was no later than 1 July 2017.  That is the only relevant change of care day for that review and for this review.

2. It follows therefore that the change of care day pre-dates 23 May 2018.  I have therefore considered this review by reference to the old legislation, although given the nature of this particular review, nothing turns on the reforms to the legislation.

3. Under the scheme for determining percentages of care for use in the administrative assessment of child support, existing care determinations continue in effect until such time as they are revoked. The circumstances in which an existing care determination may be revoked are restricted to those set out in Division 4, Subdivision C of the Child Support (Assessment) Act 1989 (the Act). Upon revocation, a new percentage of care determination must be made.

4. Strictly speaking, the effect of my decision in matter SC016622 is that the existing care determination for child support purposes is not revoked until the day before notification: 25 September 2018.  I proceed therefore on the basis that the question as to whether care is not taking place in accordance with the existing care determination as at 1 July 2018 is to be answered by reference to the care determination that Mr Albertson had 33% care of [Child 1], and [Ms A] had 67% care of [Child 1], as that was the care determination in place on 1 July 2018 for child support purposes.

Existing percentage of care determination is revoked

1. Relevantly to the circumstances of this case, section 54F of the Act provides for revocation of a determination of a percentage of care if (among other requirements) the Registrar or Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the person’s existing percentage of care and the Registrar is satisfied that the person’s cost percentage for the child would change if the Registrar were to determine another percentage to be the person’s percentage of care for the child

2. For the reasons set out in matter SC016622, I preferred Mr Albertson’s evidence as to the pattern of care for [Child 1] than the records of [Ms A]’s position available to me in the Tribunal papers.

3. I note that in giving evidence, Mr Albertson explained that the pattern of care for [Child 1] was consistent from some unrecalled date prior to 1 July 2017, and continued without change through to beyond 1 July 2018.  This is supported by the corroborating documentary evidence he has provided in his calendars that I had relied upon to calculate the pattern of care as a percentage.

4. I find therefore that at 1 July 2018 (as was also the case as at 1 July 2017), Mr Albertson had care of [Child 1] in a pattern as demonstrated by the best evidence before me, namely Mr Albertson’s calendar.  This pattern is consistent with a care percentage of 41.6%.

5. I find therefore that in relation to Mr Albertson’s notification in relation to 1 July 2018, care was not taking place in accordance with the existing care percentage determination at that nominated time, and the cost percentage would change if I were to determine another percentage of care for [Child 1].  It follows that the existing care determination is revoked.

Date of effect of the revocation

1. As was the case with the revocation of the care determination in matter SC016622, the Department was not notified that care was not taking place in accordance with the existing determination within 28 days of the day the care changed.  It follows that the date of effect of the revocation remains the day before the Department was notified: section 54F(3) of the Act. This date is 25 September 2018, as was the date of effect in matter SC016622.

New care determination

1. As indicated in matter SC016622, I consider that the best evidence available to me demonstrates a pattern of care of 41.6%, identified by reference to a care period of 12 months commencing on 1 July 2017.

2. Upon the revocation of a care percentage determination, I must make a new care percentage determination reflecting Mr Albertson’s  percentage of care reflecting the actual care I am satisfied Ms Albertson had of [Child 1]: section 50 of the Act.  I find this to be 41.6%.  Section 54D of the Act requires that I round this percentage down to 41%..

3. In matter SC016622 I determined a new percentage of care of 41%.  The date of effect of the new percentage of care for child support purposes is 26 September 2018.  I have made findings above however that actual care changed no later than 1 July 2017.  All those findings and determinations apply equally to this review.

4. I will therefore allow Mr Albertson’s objection so as to revoke the existing care determination with effect on the child support assessment from 25 September 2018, and to make a new care determination that there is a care percentage determination of 41% for Mr Albertson and 59% for [Ms A] with effect on the child support assessment from 26 September 2018.  This duplicates the practical outcome in review SC016622.

DECISION

The decision under review is set aside and the objection is allowed so as to revoke the existing care determination with effect on the child support assessment from 25 September 2018, and to make a new care determination that there is a care percentage determination of 41% for Mr Albertson and 59% for [Ms A] with effect on the child support assessment from 26 September 2018.