Altman and Passey (Child support)

[2022] AATA 4993

Altman and Passey (Child support) [2022] AATA 4993 (21 October 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/PC024251

APPLICANT:  Mr Altman

OTHER PARTIES:  Child Support Registrar

Ms Passey

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  21 October 2022

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 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. This review is about a change to the percentage of care determinations for Mr Altman and Ms Passey in respect of their children [Child 1] (born March 2009) and [Child 2] (born December 2010).  There has been a child support assessment in place since 23 December 2021 and Mr Altman is the liable parent under the assessment.

2. From 26 November 2021 the child support assessment reflected Mr Altman as having 30 per cent care and Ms Passey as having 70 per cent care of [Child 1] and [Child 2].

3. On 30 March 2022 Mr Altman notified the Child Support Agency of a change to the care arrangements stating that he provides 50 per cent care and Ms Passey provides 50 per cent care of the children from 1 March 2022.

4. On 21 April 2022 the Child Support Agency made the decision to reflect that Mr Altman provides 50 per cent care and Ms Passey provides 50 per cent care of the children from 1 March 2022 but with effect from 30 March 2022 for Mr Altman and from 1 March 2022 for Ms Passey.

5. On 11 May 2022 Ms Passey objected to this decision and on 23 June 2022 the Child Support Agency allowed the objection and made the decision to reflect that Mr Altman provides 35 per cent care and Ms Passey provides 65 per cent care of the children from 11 May 2022 (the objection decision).[1]

   [1] It appears the objections officer affirmed the decision under review but also made a new care decision on the basis there was a further change of care on 11 May 2022.

6. On 12 July 2022 Mr Altman applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.

7. The Tribunal conducted a hearing into the application on 18 October 2022.  Mr Altman appeared before the Tribunal and gave evidence on affirmation.  The Tribunal wrote to Ms Passey on 3 October 2022 advising her the application for review was to be held on 18 October 2022 at 10:30 am.  On 17 October 2022 the Tribunal sent Ms Passey an SMS text message reminding her of the details of the hearing.  The Tribunal attempted to contact Ms Passey on the day of the hearing but was unsuccessful.  Ms Passey did not participate in the hearing.

8. The Child Support Agency provided the Tribunal and the parties with papers relevant to the matter (188 pages).  Prior to the hearing the Tribunal also received additional information from Ms Passey and copies were distributed to the parties (B1–B19).

ISSUES

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

2. The Child Support Agency makes child support assessments using a formula outlined in the Act and the elements of this formula include care percentages for each parent.  The percentage of care is used in an assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they provide for that child.

3. Where a parent has a pattern of care for a child, the Child Support Agency determines care percentages that correspond with the actual care of a child the parent has, or is likely to have, during a care period (section 50 of the Act).  In other words, the Child Support Agency makes care decisions at a point in time based on what has happened up until the change in care is considered and what is the likely care thereafter.  The task of the Tribunal on review is the same.

4. The Child Support Agency revokes care percentages in the circumstances set out in sections 54F, 54G and 54H of the Act and can then make new care determinations to take account of a care change.

5. The issues which arise in this case are:

   ·     has there been a change in the pattern of care for [Child 1] and [Child 2] which requires the existing percentages of care to be revoked and new care determinations made; and, if so,

   ·     from what date should the new percentage of care determinations take effect?

CONSIDERATION

1. Mr Altman told the Tribunal that care of the children was arranged between the parents and based around his work roster.  Mr Altman said up until he notified the Child Support Agency of the change to the care arrangements he was working two weeks on and one week off.

2. Mr Altman explained that because he was missing the children he decided to take on a new role doing shutdown work which offered greater flexibility and enabled him to have more care.  Mr Altman said during the period between jobs he spent more time with [Child 1] and [Child 2] which equated to shared care and this level of care continued after he commenced his new role.

3. The Tribunal notes in evidence a calendar of care provided by Ms Passey to the Child Support Agency on 9 May 2022.  It shows that from 1 March 2022 to 21 April 2022, when the original decision was made, Mr Altman had care of the children for 25 nights.

4. Although Ms Passey did not participate in the hearing the Tribunal notes that during a conversation with a child support officer on 14 April 2022 she agreed that care of the children was 50–50 care from 1 March 2022.  Ms Passey also said she believed there would likely be a further change in care when Mr Altman started his new job.

5. A change in care usually takes place when the existing pattern of care ceases and a new pattern commences.  The Tribunal is satisfied, based on the evidence provided, that a new pattern of care was established for [Child 1] and [Child 2] with Mr Altman providing 50 per cent care and Ms Passey providing 50 per cent care from 1 March 2022.

6. The existing percentages of care reflected in the assessment for [Child 1] and [Child 2] were 30 per cent care to Mr Altman and 70 per cent to Ms Passey.  The Tribunal is satisfied, in the circumstances of this case, that section 54G of the Act does not apply.  Section 54F of the Act provides that if the care of the child that is actually taking place does not correspond with the parents’ existing percentage of care and a change in the percentage of care would result in a change to the cost percentage, then the existing percentage of care determinations must be revoked and replaced by new percentage of care determinations.

7. As section 54F of the Act is met, the Tribunal finds the previous determinations must be revoked and replaced with the pattern of care that took place.

New percentage of care

1. Having revoked the existing determinations, the Tribunal must make new percentage of care determinations for Mr Altman and Ms Passey under section 50 of the Act.

2. The Tribunal finds that Mr Altman provides 50 per cent care and Ms Passey provides 50 per cent care of [Child 1] and [Child 2].

Date of effect of new care percentage determinations

1. The Tribunal finds that Mr Altman first notified the Child Support Agency of the change in care on 30 March 2022.  As this is more than 28 days after the change occurred on 1 March 2022, according to paragraph 54F(3)(b) of the Act, the existing care determinations are revoked for the parent with increased care from the day before the date of notification and for the parent with reduced care from the day before the date the change occurred.

2. The new determinations can be made from 30 March 2022 for Mr Altman and from 1 March 2022 for Ms Passey.

3. The Tribunal notes that care of [Child 1] and [Child 2] has changed in accordance with further decisions made by the Child Support Agency on 23 June 2022 and 13 July 2022.  Either parent may wish to seek an explanation from the Child Support Agency in relation to the impact these separate decisions have had on the level of child support.

DECISION

The decision under review is affirmed.