Alcom and Alcom (Child support)

[2021] AATA 3850

Alcom and Alcom (Child support) [2021] AATA 3850 (5 August 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/PC021737

APPLICANT:  Mr Alcom

OTHER PARTIES:  Child Support Registrar

Ms Alcom

TRIBUNAL:Member M Martellotta

DECISION DATE:  5 August 2021

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – length of care period – existing percentage of care determinations 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 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

BACKGROUND

1. Mr Alcom and Ms Alcom are the parents of two children, [Child 1] and [Child 2]. The applications for review concern the percentage of care recorded in relation to the children.

2. On 8 May 2021, Services Australia – Child Support decided to record the percentage of care as 68% to Ms Alcom and 32% to Mr Alcom as from 19 April 2021.

3. Mr Alcom lodged objections to the decision on 11 May 2021.  On 10 June 2021, his objection to the care decision was allowed and the new care decision was that care of the children was 67% to Ms Alcom and 33% to Mr Alcom.

4. Mr Alcom lodged an application seeking independent review with the tribunal on 14 June 2021. The tribunal convened a hearing. Relevant documents provided included Agency documents (81 pages) and Ms Alcom’s documents (B1-B6).

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the RC Act).

2. Child support legislation is interpreted by the Agency with the aid of the Child Support Guide (the Guide). The tribunal is not bound by law to apply the policy as set out in the Guide, but provided the policy is consistent with the legislation, it is required to have regard to it and in the ordinary course follow it.[1]

   [1] See Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

3. The main issues which arise in this case include whether the existing care determinations are to be revoked, and if so, should a new determination of care percentage be made?

CONSIDERATION

1. Sections 49 and 50 of the Act require the Department to determine a person’s percentage of care where a person has had or is likely to have a pattern of care for a child for the care period. The percentage of care so determined must be a percentage that corresponds with the actual care of the child.

2. Section 54A of the Act sets out that the actual care of a child that a person has or is likely to have may be worked out from the number of nights the child spends in their care. A new percentage of care can be determined by the Child Support Agency whenever the care of a child has changed pursuant to sections 54F, 54G and 54H of the Act.

3. In relation to care change, the legislative scheme requires any new care percentage determination to be made following notification to Services Australia of a change of care arrangement. 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 terms of the child care period, the tribunal notes the following:[2]

   Percentage of care

   A parent's or non-parent carer's care percentage is the percentage of care of the child the person is likely to have over the care period. A care period is generally a 12-month period, but may be shorter or longer than this in some circumstances (section 49 and section 50).

   Care periods other than 12 months

   While a care period would generally be the 12-month period starting from the date the actual care of the child changed, there are some circumstances where determining the care over a shorter or longer care period may be more appropriate. The Registrar will consider the specific circumstances of each case to determine the appropriate care period.

   Care periods longer than 12 months

   A care period of more than 12 months might be appropriate where the parents have an arrangement in which the care of the child follows a recurring cycle over a period greater than 12 months.

   [2] The Guide at 2.2.1 and 2.4.5.

   Care periods shorter than 12 months

   A care period of less than 12 months may be appropriate where the pattern of care will gradually change over a definable period of less than 12 months in a specific and measurable way.

5. At hearing, the following facts were not in dispute, and the tribunal finds that:

   a)The previous care recorded in the case was that from 24 October 2020; Ms Alcom had 53% and Mr Alcom had 47% care.

   b)Court Orders were made on 5 March 2021 and, amongst other things, the orders provided that:

   ·The children are to live with Ms Alcom from the last day of Term 1 2021.[3]

   [3] Thursday 1 April 2021.

   ·The children are to spend time with Mr Alcom each alternative week Friday to Monday (3 nights) or, if the Monday is a public holiday, to the Tuesday (4 nights).

   ·The children are to also spend time with Mr Alcom each intervening week from Friday to Saturday afternoon (1 night).

   ·The children are to be with each parent for half of the school holidays.

   c)On 21 April 2021, Ms Alcom advised the Agency of a change in care following the Court Orders. She advised that the date the care changed was 19 April 2021.  Based upon those orders, it was determined that Ms Alcom would have 245 nights of care (68%) and Mr Alcom 120 nights of care (32%).

   d)On 8 May 2021, Mr Alcom agreed with the date of event and that the level of care calculated was correct pursuant to the orders.[4]

   e)Notices of the decision were sent to the parental parties.

   f)The care period was calculated over a 12-month period from April 2021 to March 2022.

   g)On 11 May 2021, Mr Alcom objected to the care decision on the basis that the calculation was incorrect due to the period of care used in the assessment. He provided a list of dates based upon the ‘projected care’ for the children for the period 19 April 2021 to 10 January 2022 and on this basis says his actual care would be 36%.

   h)Upon objection, the Agency calculated that Mr Alcom would have 122 nights care (33%) and Ms Alcom 243 nights (67%).

   i)The care cost percentages do not change.[5]

   [4] The tribunal notes that the care calculations commenced from 19 April 2021 which was the date the Term 1 school holidays ended.

   [5] For care between 14% to 35% the cost percentage is 24%, see section 55C of the Act.

6. Mr Alcom told the tribunal that the child support percentage should be calculated over a shorter period, namely the period of the assessment, which operates from 19 April 2021 to 10 January 2022.  He said that this is a fairer reflection of the actual care as taking it over the 12 months does not take into account possible changes and uncertainties that may occur.  He was unable to specify what those changes might be.  He agreed that overall care is occurring in line with the current Court Orders.

7. Ms Alcom told the tribunal that the objection decision was the correct decision.  She noted that she and Mr Alcom did have some uncertainty around a pupil-free day that was not expected, and she also asked if she could have the children on Mother’s Day.  She said that at some point they may go back to amend the Court Orders to cover those types of issues.

8. Section 50 of the Act requires the Agency to determine a person’s percentage of care where a person has had or is likely to have a pattern of care for a child for the care period.[6] The percentage of care so determined must be a percentage that corresponds with the actual care of the child.

   [6] A care period is the period over which care is assessed to determine the care percentages for each parent or non-parent carer. A care period is generally a 12-month period from the day on which the actual care of a child began or changed (the date of event). The same care arrangements will be assumed to apply for the subsequent 12-month period, unless otherwise advised (the Guide 2.2.1).

9. The primary decision-maker’s (that is, the Agency’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 Agency.  It is not appropriate, in undertaking that task, to assess care based on what happened from initial notification to the 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 Agency.

10. As noted, the parties agree that care is taking place pursuant to the Court Orders and the revocation of the previous care percentages in place prior to those orders was not in dispute.  Mr Alcom’s main submission is that if the nights in care are calculated over a shorter period then his care percentage increases to 36%.

11. In this matter, taking into account legislative provisions and relevant policy, the tribunal is satisfied that the appropriate care period to assess the likely pattern of care is 12 months commencing 19 April 2021 and not a shorter period as submitted by Mr Alcom.  The tribunal is satisfied that on this basis pursuant to the Court Orders Mr Alcom has 33% care and Ms Alcom 67% care.

12. The tribunal is satisfied and finds that:

    a)there was an existing care percentage of 53% (Ms Alcom) and 47% (Mr Alcom).

    b)there was a change in care on 19 April 2021 following Family Court Orders.

    c)Pursuant to those orders over a 12-month care period commencing 19 April 2021, Ms Alcom will have 243 nights and Mr Alcom will have 122 nights of care.

13. In this matter, the tribunal is satisfied that the existing percentage of care is to be revoked pursuant to section 54F of the Act. In this matter, the tribunal is satisfied that the criteria in section 54F are met. This is because there was an existing care determination pursuant to section 50 of the Act; section 51 did not have application as there was not an interim period in place; the notification of change in care was that actual care was not corresponding with care as determined; the change in care would affect the relevant cost percentage; and section 54G does not apply.

14. In this case, notification of the change in care occurred within 28 days of the change in care event; this means that the existing care of 53% (Ms Alcom) and 47% (Mr Alcom) is revoked on the day before the change in care, namely 18 April 2021.[7]

    [7] Subsection 54F(3) of the Act.

15. As noted, sections 49 and 50 of the Act require the Agency to determine a person’s percentage of care where a person has had or is likely to have a pattern of care for a child for the care period. The tribunal concluded that the new care percentages apply from 19 April 2021.[8]

    [8] The date of effect is the day after the day of revocation if the revocation was made under section 54F of the Assessment Act.

DECISION

The decision under review is affirmed.